SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
-------------
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: December 17, 1999
RECKSON ASSOCIATES REALTY CORP.
(Exact name of Registrant as specified in its Charter)
Maryland
(State of Incorporation)
1-13762 11-3233650
(Commission File Number) (IRS Employer Id. Number)
225 Broadhollow Road 11747
Melville, New York (Zip Code)
(Address of principal executive offices)
(516) 694-6900
(Registrant's telephone number, including area code)
<PAGE>
Item 5. Other Events
On December 17, 1999 Reckson Operating Partnership, L.P. ("ROP"),
entered into a unsecured credit facility with ING (U.S.) Capital LLC, as
Documentation Agent, and The Chase Manhattan Bank ("Chase") as Administrative
Agent, and Chase Securities Inc. as Lead Arranger and Sole Book Manager (the
"Credit Facility"). The Credit Facility matures on June 16, 2001. The Credit
Facility is unconditionally guaranteed by Reckson Associates Realty Corp. and
Reckson FS Limited Partnership. The Credit Facility provides for a maximum
borrowing amount of up to $75 million at any time outstanding. ROP's ability
to borrow under the Credit Facility will be subject to the satisfaction of,
among other things, certain financial covenants, including covenants relating
to limitations on unsecured and secured borrowings, minimum fixed charge
coverage ratio, a minimum combined equity value, a minimum unsecured interest
coverage ratio, a minimum unsecured debt yield, a minimum adjusted
unencumbered net operating income, and a maximum dividend payout ratio.
Borrowings under the Credit Facility will bear interest, at the option of ROP,
at the Base Rate or the Eurodollar Rate, plus 1.5% for all Eurodollar Loans.
The Base Rate is defined as the fluctuating rate equal to the higher of: (i)
the rate of interest announced publicly by Chase in New York, New York from
time to time, as Chase's prime rate; and (ii) the sum of (A) one-half of one
percent (0.50%) per annum plus (B) the Federal Funds Rate in effect from time
to time during such period. The Eurodollar Rate is generally the rate for U.S.
dollar deposits for one, two, three or six months which appears on Telerate
Page 3750 as of 11:00 A.M. London time, two business days prior to the
commencement of the applicable interest period, as adjusted for applicable
reserve requirements.
Item 7. Financial Statements and Exhibits
(c) Exhibits
1.1 1999 $75 million Amended and Restated Credit Facility Agreement
1.2 1999 Amended and Restated Guaranty Agreement
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
RECKSON ASSOCIATES REALTY CORP.
----------------------
Michael Maturo
Executive Vice President, Treasurer
and Chief Financial Officer
Date: January __, 2000
<PAGE>
Exhibit 1.1
================================================================================
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 17, 1999
among
RECKSON OPERATING PARTNERSHIP, L.P.
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS,
ING (U.S.) CAPITAL LLC,
AS DOCUMENTATION AGENT
and
THE CHASE MANHATTAN BANK
AS ADMINISTRATIVE AGENT,
and
CHASE SECURITIES INC.
AS LEAD ARRANGER AND SOLE BOOK MANAGER
================================================================================
<PAGE>
TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms.................................................2
1.2. Computation of Time Periods..........................................34
1.3. Accounting Terms.....................................................34
1.4. Other Terms..........................................................34
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.1. Loans................................................................34
2.2. Intentionally Omitted................................................36
2.3. Use of Proceeds of Loans.............................................36
2.4. Termination Date.....................................................37
2.5. Maximum Credit Facility..............................................37
2.6. Authorized Agents....................................................37
ARTICLE III
INTENTIONALLY OMITTED
ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.1. Prepayments; Reductions in Commitments...............................38
4.2. Payments.............................................................40
4.3. Promise to Repay; Evidence of Indebtedness...........................44
ARTICLE V
INTEREST AND FEES
5.1. Interest on the Loans and other Obligations..........................45
5.2. Special Provisions Governing Eurodollar Rate Loans...................48
ARTICLE VI
CONDITIONS TO LOANS
6.1. Conditions Precedent to the Loans....................................53
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of the Borrower.......................55
ARTICLE VIII
REPORTING COVENANTS
8.1. Borrower Accounting Practices........................................66
8.2. Financial Reports....................................................66
8.3. Events of Default....................................................70
8.4. Lawsuits.............................................................70
8.5. Insurance............................................................71
8.6. ERISA Notices........................................................71
8.7. Environmental Notices................................................73
8.8. Labor Matters........................................................74
8.9. Notices of Asset Sales and/or Acquisitions...........................75
8.10. Notices of Minority Holdings.........................................75
8.11. Tenant Notifications.................................................75
8.12. Other Reports........................................................76
8.13. Other Information....................................................76
ARTICLE IX
AFFIRMATIVE COVENANTS
9.1. Existence, Etc.......................................................76
9.2. Powers; Conduct of Business..........................................76
9.3. Compliance with Laws, Etc............................................77
9.4. Payment of Taxes and Claims..........................................77
9.5. Insurance............................................................77
9.6. Inspection of Property; Books and Records; Discussions...............78
9.7. ERISA Compliance.....................................................78
9.8. Maintenance of Property..............................................78
9.9. Company Status.......................................................79
ARTICLE X
NEGATIVE COVENANTS
10.1. Intentionally Omitted................................................79
10.2. Liens................................................................79
10.3. Intentionally Omitted................................................80
10.4. Conduct of Business..................................................80
10.5. Transactions with Partners and Affiliates............................80
10.6. Restriction on Fundamental Changes...................................80
10.7. Margin Regulations; Securities Laws..................................81
10.8. ERISA................................................................81
10.9. Organizational Documents.............................................82
10.10. Fiscal Year..........................................................82
10.11. Financial Covenants..................................................82
10.12. Negative Covenants with respect to the Company......................85
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. Events of Default....................................................85
11.2. Rights and Remedies..................................................89
ARTICLE XII
THE AGENTS
12.1. Appointment..........................................................91
12.2. Nature of Duties.....................................................91
12.3. Right to Request Instructions........................................92
12.4. Reliance.............................................................92
12.5. Indemnification......................................................93
12.6. Agent Individually...................................................93
12.7. Successor Agents.....................................................93
12.8. Relations Among the Lenders..........................................94
ARTICLE XIII
YIELD PROTECTION
13.1. Taxes................................................................95
13.2. Increased Capital....................................................98
13.3. Changes; Legal Restrictions..........................................99
13.4. Replacement of Certain Lenders......................................100
13.5. Mitigation..........................................................100
ARTICLE XIV
MISCELLANEOUS
14.1. Assignments and Participations......................................101
14.2. Expenses............................................................104
14.3. Indemnity...........................................................105
14.4. Change in Accounting Principles.....................................105
14.5. Intentionally Omitted...............................................106
14.6. Ratable Sharing.....................................................106
14.7. Amendments and Waivers..............................................107
14.8. Notices.............................................................109
14.9. Survival of Warranties and Agreements...............................110
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative...............110
14.11. Payments Set Aside..................................................110
14.12. Severability........................................................111
14.13. Headings............................................................111
14.14. Governing Law.......................................................111
14.15. Limitation of Liability.............................................111
14.16. Successors and Assigns..............................................111
14.17. Certain Consents and Waivers of the Borrower........................111
14.18. Counterparts; Effectiveness; Inconsistencies........................113
14.19. Limitation on Agreements............................................113
14.20. Disclaimers.........................................................113
14.21. Entire Agreement....................................................114
14.22. Confidentiality.....................................................114
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of December
17, 1999 (as amended, supplemented or modified from time to time, the
"Agreement") is entered into among RECKSON OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership ("Reckson"), the institutions from time to time a
party hereto as Lenders, whether by execution of this Agreement or an Assignment
and Acceptance, ING (U.S.) CAPITAL LLC, as Documentation Agent, and THE CHASE
MANHATTAN BANK, as Administrative Agent.
R E C I T A L S
WHEREAS, Reckson and the Administrative Agent entered into a Credit
Agreement, dated as of January 12, 1999, as amended by First Amendment to
Amended and Restated Credit Agreement, dated as of September 27, 1999 (the
"Existing Credit Agreement"); and
WHEREAS, the parties hereto have agreed to amend and restate the terms
and conditions contained in the Existing Credit Agreement in their entirety as
hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
I. The Existing Credit Agreement is hereby modified so that all of the
terms and conditions of the aforesaid Existing Credit Agreement shall be
restated in their entirety as set forth herein, and Reckson agrees to comply
with and be subject to all of the terms, covenants and conditions of this
Agreement.
II. This Agreement shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and assigns, and shall be
deemed to be effective as of the date hereof.
III. Any reference in the Notes, the Guaranty, any other Loan Document
or any other document executed in connection with this Agreement or the Existing
Credit Agreement to the Existing Credit Agreement shall be deemed to refer to
this Agreement.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. The following terms used in this Agreement
shall have the following meanings, applicable both to the singular and the
plural forms of the terms defined:
"Adjusted Unencumbered NOI" means, for any period, the sum of (i) the
NOI from the Consolidated Businesses, less the Unencumbered Capital Expenditure
Reserve Amounts for such period; and (ii) the portion of NOI of the Minority
Holdings allocable to the Borrower, in accordance with GAAP less the
Unencumbered Capital Expenditure Reserve Amounts allocable to the Borrower for
such period; which amounts represent revenues earned from Real Property that is
not subject to or encumbered by Secured Indebtedness and which revenues are not
subject to any pledge, negative pledge, Lien or other hypothecation. The sum of
(x) NOI from the Consolidated Businesses included in clause (i) hereof from
other than office and industrial Real Property, and (y) NOI included in clause
(ii) hereof, shall in no event be more than twenty-five percent (25%) of
Adjusted Unencumbered NOI. In addition, no NOI attributable to Investment Funds
shall be included in Adjusted Unencumbered NOI.
"Administrative Agent" means Chase.
"Affiliate", as applied to any Person, means any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, that Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to vote ten percent (10.0%) or more of the equity
Securities having voting power for the election of directors of such Person or
otherwise to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting equity Securities or by
contract or otherwise.
"Agents" means, collectively, Chase in its capacity as Administrative
Agent, and each successor agent appointed pursuant to the terms of Article XII
of this Agreement.
"Agreement" has the meaning set forth in the preamble hereto.
"Applicable Lending Office" means, with respect to a particular Lender,
(i) its Eurodollar Lending Office in respect of provisions relating to
Eurodollar Rate Loans, and (ii) its Domestic Lending Office in respect of
provisions relating to Base Rate Loans.
"Applicable Margin" means, with respect to each Eurodollar Loan, 1.50%,
and with respect to each Base Rate Loan, 0%.
"Assignment and Acceptance" means an Assignment and Acceptance in
substantially the form of EXHIBIT A attached hereto and made a part hereof (with
blanks appropriately completed) delivered to the Administrative Agent in
connection with an assignment of a Lender's interest under this Agreement in
accordance with the provisions of Section 14.1.
"Authorized Financial Officer" means a chief executive officer,
president, chief financial officer, treasurer or other qualified senior officer
acceptable to the Administrative Agent.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall at all
times be equal to the higher of:
(i) the rate of interest announced publicly by Chase in New York, New
York from time to time, as Chase's prime rate; and
(ii) the sum of (A) one-half of one percent (0.50%) per annum plus (B)
the Federal Funds Rate in effect from time to time during such period.
"Base Rate Loan" means (i) a Loan which bears interest at a rate
determined by reference to the Base Rate and the Applicable Margin as provided
in Section 5.1(a) or (ii) an overdue amount which was a Base Rate Loan
immediately before it became due.
"Borrower" means Reckson.
"Borrower Partnership Agreement" means the Reckson Partnership
Agreement as such agreement may be amended, restated, modified or supplemented
from time to time with the consent of the Agents or as permitted under Section
10.9.
"Borrowing" means a borrowing consisting of Loans of the same type
made, continued or converted on the same day.
"Business Day" means a day, in the applicable local time, which is not
a Saturday or Sunday or a legal holiday and on which banks are not required or
permitted by law or other governmental action to close (i) in New York, New York
and (ii) in the case of Eurodollar Rate Loans, in London, England.
"Capital Expenditures" means, for any period, the aggregate of all
expenditures (whether payable in cash or other Property or accrued as a
liability (but without duplication)) during such period that, in conformity with
GAAP, are required to be included in or reflected by the Company's, the
Borrower's or any of its Subsidiaries' fixed asset accounts as reflected in any
of their respective balance sheets; provided, however, Capital Expenditures
shall include the sum of all expenditures by the Consolidated Businesses and the
portion of expenditures of Minority Holdings allocable to the Consolidated
Businesses for tenant improvements, leasing commissions, property level capital
expenditures (e.g., roof replacement, parking lot repairs, etc., but not capital
expenditures in connection with expansions).
"Capital Expenditure Reserve Amounts" means the greater of (i) the sum
of (a) an amount per annum equal to $0.72 multiplied by the number of square
feet for office properties owned, directly or indirectly by any of the
Consolidated Businesses or Minority Holdings; and (b) an amount per annum equal
to $0.28 multiplied by the number of square feet for industrial properties
owned, directly or indirectly by any of the Consolidated Businesses or Minority
Holdings and (ii) as of the first day of each calendar quarter, an amount equal
to the actual Capital Expenditures for the immediately preceding consecutive
four calendar quarters.
"Capital Lease" means any lease of any property (whether real, personal
or mixed) by a Person as lessee which, in conformity with GAAP, is accounted for
as a capital lease on the balance sheet of that Person.
"Capital Stock" means, with respect to any Person, any capital stock of
such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"Cash and Cash Equivalents" means unrestricted (i) cash, (ii)
marketable direct obligations issued or unconditionally guaranteed by the United
States government and backed by the full faith and credit of the United States
government; and domestic and Eurodollar certificates of deposit and time
deposits, bankers' acceptances and floating rate certificates of deposit issued
by any commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia, any foreign bank, or its branches or agencies
(fully protected against currency fluctuations), which, at the time of
acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by Moody's
provided that the maturities of such Cash and Cash Equivalents shall not exceed
one year.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. sections 9601 et seq., any amendments
thereto, any successor statutes, and any regulations or guidance promulgated
thereunder.
"Chase" means The Chase Manhattan Bank.
"Claim" means any claim or demand, by any Person, of whatsoever kind or
nature for any alleged Liabilities and Costs, whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil statute,
Permit, ordinance or regulation, common law or otherwise.
"Closing Date" means December 17, 1999.
"Combined Equity Value" means Total Value, less Total Outstanding
Indebtedness.
"Commission" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
"Commitment" means with respect to any Lender, the obligation of such
Lender to make Loans pursuant to the terms and conditions of this Agreement, and
which shall not exceed the principal amount set forth opposite such Lender's
name under the heading "Commitment" on the signature pages hereof or the
signature page of the Assignment and Acceptance by which it became a Lender, as
modified from time to time pursuant to the terms of this Agreement or to give
effect to any applicable Assignment and Acceptance, and "Commitments" means the
aggregate principal amount of the Commitments of all the Lenders, the maximum
amount of which shall be $75,000,000 as reduced from time to time pursuant to
Section 4.1, including as a result of a prepayment pursuant to Section 4.1(a) or
(d).
"Company" means Reckson Associates Realty Corp., a Maryland
corporation.
"Compliance Certificate" has the meaning set forth in Section 8.2(b).
"Consolidated" means consolidated, in accordance with GAAP.
"Consolidated Businesses" means the Company, the Borrower, Reckson FS
Limited Partnership and their wholly-owned Subsidiaries.
"Construction Asset Cost" means, with respect to Property on which
construction of Improvements has commenced (such commencement evidenced by
foundation excavation) but has not yet been completed (as such completion shall
be evidenced by a temporary or permanent certificate of occupancy permitting use
of such Property by the general public), the aggregate sums expended on the
construction of such Improvements (including land acquisition costs and other
soft costs).
"Contaminant" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos containing materials (in any
form or condition), polychlorinated biphenyls (PCBs), or any constituent of any
such substance or waste, and includes, but is not limited to, these terms as
defined in federal, state or local laws or regulations.
"Contingent Obligation" as to any Person means, without duplication,
(i) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (ii) any obligation required
to be disclosed in the footnotes to such Person's financial statements in
accordance with GAAP, guaranteeing partially or in whole any non-recourse
Indebtedness, lease, dividend or other obligation, exclusive of contractual
indemnities (including, without limitation, any indemnity or price-adjustment
provision relating to the purchase or sale of securities or other assets) and
guarantees of non-monetary obligations (other than guarantees of completion)
which have not yet been called on or quantified, of such Person or of any other
Person. Notwithstanding the foregoing, any litigation required to be disclosed
in the footnotes to such Person's financial statements in accordance with GAAP
shall not be included as a "Contingent Obligation" unless the same shall have
been reserved for in accordance with GAAP. The amount of any Contingent
Obligation described in clause (ii) shall be deemed to be (a) with respect to a
guaranty of interest or interest and principal, or operating income guaranty,
the sum of all payments required to be made thereunder (which in the case of an
operating income guaranty shall be deemed to be equal to the debt service for
the note secured thereby), calculated at the interest rate applicable to such
Indebtedness, through (i) in the case of an interest or interest and principal
guaranty, the stated date of maturity of the obligation (and commencing on the
date interest could first be payable thereunder), or (ii) in the case of an
operating income guaranty, the date through which such guaranty will remain in
effect, and (b) with respect to all guarantees not covered by the preceding
clause (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such guaranty is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as recorded on the
balance sheet and on the footnotes to the most recent financial statements of
the Borrower required to be delivered pursuant hereto. Notwithstanding anything
contained herein to the contrary, guarantees of completion shall not be deemed
to be Contingent Obligations unless and until a claim for payment has been made
thereunder, at which time any such guaranty of completion shall be deemed to be
a Contingent Obligation in an amount equal to any such claim. Subject to the
preceding sentence, (i) in the case of a joint and several guaranty given by
such Person and another Person (but only to the extent such guaranty is
recourse, directly or indirectly to the Borrower), the amount of the guaranty
shall be deemed to be 100% thereof unless and only to the extent that (X) such
other Person has delivered Cash or Cash Equivalents to secure all or any part of
such Person's guaranteed obligations or (Y) such other Person holds an Credit
Rating from either Moody's or S&P of BBB- (or its equivalent) or better, and
(ii) in the case of a guaranty, (whether or not joint and several) of an
obligation otherwise constituting Debt of such Person, the amount of such
guaranty shall be deemed to be only that amount in excess of the amount of the
obligation constituting Indebtedness of such Person. Notwithstanding anything
contained herein to the contrary, "Contingent Obligations" shall not be deemed
to include guarantees of loan commitments or of construction loans to the extent
the same have not been drawn.
"Contractual Obligation", as applied to any Person, means any provision
of any Securities issued by that Person or any indenture, mortgage, deed of
trust, security agreement, pledge agreement, guaranty, contract, undertaking,
agreement or instrument to which that Person is a party or by which it or any of
its properties is bound, or to which it or any of its properties is subject.
"Credit Availability" means, at any particular time, the amount by
which the Maximum Credit Amount at such time exceeds the Credit Obligations at
such time.
"Credit Obligations" means, at any particular time, the outstanding
principal amount of the Loans at such time.
"Credit Rating" means the ratings assigned by not less than two of the
Rating Agencies (at least one of which shall be S&P or Moody's) to the
Borrower's senior long-term unsecured indebtedness.
"Cure Loans" has the meaning set forth in Section 4.2(b)(v)(C).
"Customary Permitted Liens" means
(i) Liens (other than Environmental Liens and Liens in favor of the
PBGC) with respect to the payment of taxes, assessments or governmental
charges or levies in all cases which are not yet due or which are being
contested in good faith by appropriate proceedings in accordance with
Section 9.4 and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with GAAP;
(ii) statutory and common law Liens of landlords against any Property
of the Borrower or any of its Subsidiaries;
(iii) Liens against any Property of the Borrower or any of its
Subsidiaries in favor of suppliers, mechanics, carriers, materialmen,
warehousemen or workmen and other Liens against any Property of the
Borrower or any of its Subsidiaries imposed by law created in the ordinary
course of business for amounts which could not reasonably be expected to
result in a Material Adverse Effect;
(iv) Liens (other than any Lien in favor of the PBGC) incurred or
deposits made in the ordinary course of business in connection with
worker's compensation, unemployment insurance or other types of social
security benefits or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money), surety, appeal
and performance bonds; provided that (A) all such Liens do not in the
aggregate materially detract from the value of the Borrower's or such
Subsidiary's assets or Property or materially impair the use thereof in the
operation of their respective businesses, and (B) all Liens of attachment
or judgment and Liens securing bonds to stay judgments or in connection
with appeals which do not secure at any time an aggregate amount of
recourse Indebtedness exceeding $10,000,000; and
(v) Liens against any Property of the Borrower or any Subsidiary of
the Borrower arising with respect to zoning restrictions, easements,
licenses, reservations, covenants, rights-of-way, utility easements,
building restrictions and other similar charges or encumbrances on the use
of Real Property which do not materially interfere with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(vi) leases or subleases granted to other Persons not materially
interfering with the conduct of the business of the Borrower and its
Subsidiaries taken as a whole;
(vii) Liens placed upon equipment or machinery used in the ordinary
course of business of the Borrower or any of its Subsidiaries at the time
of acquisition thereof by the Borrower or any such Subsidiary or within 180
days thereafter to secure Indebtedness incurred to pay all or a portion of
the purchase price thereof, provided that the Lien encumbering the
equipment or machinery so acquired does not encumber any other asset of the
Borrower or such Subsidiary;
(viii) customary restrictions imposed by licensors of software or
trademarks on users thereof;
(ix) interests of licensees and sublicensees in any trademarks or
other intellectual property license or sublicense by the Borrower or any of
its Subsidiaries; and
(x) Environmental Liens less than $5,000,000, which are being
contested in good faith by appropriate proceedings.
"Designated Lender" has the meaning set forth in Section 13.4.
"Documentation Agent" means ING (U.S.) Capital LLC in its capacity as
Documentation Agent.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"Dollars" and "$" mean the lawful money of the United States.
"Domestic Lending Office" means, with respect to any Lender, such
Lender's office, located in the United States, specified as the "Domestic
Lending Office" under its name on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such other United
States office of such Lender as it may from time to time specify by written
notice to the Borrower and the Administrative Agent.
"Duff & Phelps" means Duff & Phelps Credit Rating Co. or any successor
thereto.
"Eligible Assignee" means (i) a Lender or any Affiliate thereof; (ii) a
commercial bank having total assets in excess of $5,000,000,000; (iii) the
central bank of any country which is a member of the Organization for Economic
Cooperation and Development having total assets in excess of $10,000,000,000; or
(iv) a finance company or other financial institution reasonably acceptable to
the Administrative Agent, which is regularly engaged in making, purchasing or
investing in loans and having total assets in excess of $1,000,000,000 or is
otherwise reasonably acceptable to the Administrative Agent.
"Environmental, Health or Safety Requirements of Law" means all
Requirements of Law derived from or relating to any federal, state or local law,
ordinance, rule, regulation, Permit, license or other binding determination of
any Governmental Authority relating to, imposing liability or standards
concerning, or otherwise addressing the environment, health and/or safety,
including, but not limited to the Clean Air Act, the Clean Water Act, CERCLA,
RCRA, any so-called "Superfund" or "Superlien" law, the Toxic Substances Control
Act and OSHA, and public health codes, each as from time to time in effect.
"Environmental Lien" means a Lien in favor of any Governmental
Authority for any (i) liabilities under any Environmental, Health or Safety
Requirement of Law, or (ii) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"Environmental Property Transfer Act" means any applicable Requirement
of Law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the transfer, sale, lease or closure of any Property or
deed or title for any Property for environmental reasons, including, but not
limited to, any so-called "Environmental Cleanup Responsibility Act" or
"Responsible Property Transfer Act".
"Equipment" means equipment used in connection with the maintenance of
Projects and Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
U.S.C. sections 1000 et seq., any amendments thereto, any successor statutes,
and any regulations or guidance promulgated thereunder.
"ERISA Affiliate" means (i) any corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Internal Revenue Code) as the Borrower; (ii) a partnership or other trade or
business (whether or not incorporated) which is under common control (within the
meaning of Section 414(c) of the Internal Revenue Code) with the Borrower; and
(iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Internal Revenue Code) as the Borrower, any corporation
described in clause (i) above or any partnership or trade or business described
in clause (ii) above.
"ERISA Termination Event" means (i) a Reportable Event with respect to
any Plan or Multiemployer Plan; (ii) the withdrawal of the Borrower or any ERISA
Affiliate from a Benefit Plan during a plan year in which the Borrower or such
ERISA Affiliate was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA or the cessation of operations which results in the termination of
employment of 20% of Benefit Plan participants who are employees of the Borrower
or any ERISA Affiliate; (iii) the imposition of an obligation on the Borrower or
any ERISA Affiliate under Section 4041 of ERISA to provide affected parties
written notice of intent to terminate a Benefit Plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the institution by the PBGC of
proceedings to terminate a Benefit Plan; (v) any event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Benefit Plan; or (vi) the partial or
complete withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer
Plan.
"Eurodollar Affiliate" means, with respect to each Lender, the
Affiliate of such Lender (if any) set forth below such Lender's name under the
heading "Eurodollar Affiliate" on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such Affiliate of a
Lender as it may from time to time specify by written notice to the Borrower and
the Administrative Agent.
"Eurodollar Interest Period" has the meaning set forth in Section
5.2(b).
"Eurodollar Interest Rate Determination Date" has the meaning set forth
in Section 5.2(c).
"Eurodollar Lending Office" means, with respect to any Lender, such
Lender's office (if any) specified as the "Eurodollar Lending Office" under its
name on the signature pages hereof or on the Assignment and Acceptance by which
it became a Lender or such other office or offices of such Lender as it may from
time to time specify by written notice to the Borrower and the Administrative
Agent.
"Eurodollar Rate" means, for any Eurodollar Interest Period with
respect to any Eurodollar Rate Loan, an interest rate per annum equal to the
rate per annum obtained by multiplying (a) a rate per annum equal to the rate
for U.S. dollar deposits with maturities comparable to such Eurodollar
Interest Period which appears on Telerate Page 3750 as of 11:00 a.m., London
time, two (2) Business Days prior to the commencement of such Eurodollar
Interest Period, provided, however, that if such rate does not appear on
Telerate Page 3750, the "Eurodollar Rate" applicable to a particular
Eurodollar Interest Period shall mean a rate per annum equal to the rate at
which U.S. dollar deposits in an amount approximately equal to the principal
balance (or the portion thereof which will bear interest at a rate determined
by reference to the Eurodollar Rate during the Eurodollar Interest Period to
which such Eurodollar Rate is applicable in accordance with the provisions
hereof), and with maturities comparable to the last day of the Eurodollar
Interest Period with respect to which such Eurodollar Rate is applicable, are
offered in immediately available funds in the London Interbank Market to the
London office of Chase by leading banks in the Eurodollar market at 11:00
a.m., London time, two (2) Business Days prior to the commencement of the
Eurodollar Interest Period to which such Eurodollar Rate is applicable, by (b)
a fraction (expressed as a decimal) the numerator of which shall be the number
one and the denominator of which shall be the number one minus the Eurodollar
Reserve Percentage for such Eurodollar Interest Period.
"Eurodollar Rate Loan" means (i) a Loan which bears interest at a rate
determined by reference to the Eurodollar Rate and the Applicable Margin for
Eurodollar Rate Loans, as provided in Section 5.1(a) or (ii) an overdue amount
which was a Eurodollar Loan immediately before it became due.
"Eurodollar Reserve Percentage" means, for any day, that percentage
which is in effect on such day, as prescribed by the Federal Reserve Board for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York, New York with deposits exceeding five
billion Dollars in respect of "Eurocurrency Liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Eurodollar Rate Loans is determined or any category of
extensions of credit or other assets which includes loans by a non-United States
office of any bank to United States residents).
"Event of Default" means any of the occurrences set forth in Section
11.1 after the expiration of any applicable grace period and the giving of any
applicable notice, in each case as expressly provided in Section 11.1.
"Existing Credit Agreement" has the meaning set forth in the Recitals
hereof.
"Existing Permitted Liens" means each of the Liens set forth on
SCHEDULE 1.1.1 hereto.
"FAD" means "funds available for distribution" and shall mean, for any
period, FFO less (i) Capital Expenditures, for such period, whether payable or
accrued as a liability, (ii) adjustments to account for rents on an accrual
(rather than GAAP) basis for such period, and (iii) free rent and accrued rent
with respect to tenants that are more than 90 days in arrears in the payment of
rent for such period.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day in New York, New York, for the next preceding
Business Day) in New York, New York by the Federal Reserve Bank of New York, or
if such rate is not so published for any day which is a Business Day in New
York, New York, the average of the quotations for such day on transactions by
the Reference Bank, as determined by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any Governmental Authority succeeding to its functions.
"FFO" means "funds from operations" as defined in the National
Association of Real Estate Investment Trusts ("NAREIT") White Paper on Funds
From Operations as approved by the NAREIT Board of Governors on March 3, 1995.
"Financial Statements" means (i) quarterly and annual consolidated
statements of income and retained earnings, statements of cash flow, and balance
sheets, prepared in accordance with GAAP, consistently applied, and (ii) such
other financial statements of the Borrower, the Company and the other
Consolidated Businesses or Minority Holdings that the Company shall routinely
and regularly prepare and that the Administrative Agent or the Requisite Lenders
may from time to time reasonably request.
"Fiscal Year" means the fiscal year of the Company and the Borrower for
accounting and tax purposes, which shall be the 12-month period ending on
December 31 of each calendar year.
"Fitch" means Fitch IBCA, Inc. or any successor thereto.
"Fixed Charges" means, with respect to any fiscal period, the sum of
(a) Total Interest Expense and (b) the aggregate of all scheduled principal
payments on Total Outstanding Indebtedness according to GAAP made or required to
be made during such fiscal period for the Consolidated Businesses and Minority
Holdings (but excluding balloon payments of principal due upon the stated
maturity of an Indebtedness), and (c) the aggregate of all dividends incurred
(whether paid or accrued) on the Company's or any of its consolidated
Subsidiaries' preferred stock not owned by the Company or any of its Affiliates.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the American Institute of Certified Public
Accountants' Accounting Principles Board and Financial Accounting Standards
Board or in such other statements by such other entity as may be in general use
by significant segments of the accounting profession as in effect on the Closing
Date (unless otherwise specified herein as in effect on another date or dates).
"General Partner" means the Company and any successor general
partner(s) of the Borrower.
"Governmental Approval" means all right, title and interest in any
existing or future certificates, licenses, permits, variances, authorizations
and approvals issued by any Governmental Authority having jurisdiction with
respect to any Project.
"Governmental Authority" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guaranty" means the Amended and Restated Guaranty Agreement, dated as
of the date hereof, made by the Company and Reckson FS Limited Partnership for
the benefit of the Lenders.
"Improvements" means all buildings, fixtures, structures, parking
areas, landscaping and all other improvements whether existing now or hereafter
constructed, together with all machinery and mechanical, electrical, HVAC and
plumbing systems presently located thereon and used in the operation thereof,
excluding (a) any such items owned by utility service providers, (b) any such
items owned by tenants or other third-parties unaffiliated with the Borrower and
(c) any items of personal property.
"Indebtedness", as applied to any Person, means, at any time, without
duplication, (a) all indebtedness, obligations or other liabilities of such
Person (whether consolidated or representing the proportionate interest in any
other Person) (i) for borrowed money (including construction loans) or evidenced
by debt securities, debentures, acceptances, notes or other similar instruments,
and any accrued interest and fees relating thereto, (ii) under profit payment
agreements or in respect of obligations to redeem, repurchase or exchange any
Securities of such Person or to pay dividends in respect of any preferred stock
(but only to the extent that such Person shall be contractually obligated to pay
the same), (iii) with respect to letters of credit issued for such Person's
account, (iv) to pay the deferred purchase price of property or services, except
accounts payable and accrued expenses arising in the ordinary course of
business, (v) in respect of Capital Leases, (vi) which are Contingent
Obligations or (vii) under indemnities but only at such time as a claim shall
have been made thereunder; (b) all indebtedness, obligations or other
liabilities of such Person or others secured by a Lien on any property of such
Person, whether or not such indebtedness, obligations or liabilities are assumed
by such Person, all as of such time; (c) all indebtedness, obligations or other
liabilities of such Person in respect of interest rate contracts and foreign
exchange contracts, net of liabilities owed to such Person by the counterparties
thereon; (d) all preferred stock subject (upon the occurrence of any contingency
or otherwise) to mandatory redemption; and (e) all Contractual Obligations with
respect to any of the foregoing.
"Indemnified Matters" has the meaning set forth in Section 14.3.
"Indemnitees" has the meaning set forth in Section 14.3.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, any successor
statute and any regulations or guidance promulgated thereunder.
"Investment" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of Securities, or of a beneficial interest in
Securities, issued by any other Person, (ii) any purchase by that Person of all
or substantially all of the assets of a business conducted by another Person,
(iii) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, accounts receivable,
advances to employees and similar items made or incurred in the ordinary course
of business) or capital contribution by that Person to any other Person,
including all Indebtedness to such Person arising from a sale of property by
such Person other than in the ordinary course of its business, and (iv) any
purchase or other acquisition by that Person of Real Property, whether directly
or indirectly. The amount of any Investment shall be the original cost of such
Investment, without any adjustments for increases or decreases in value or
write-ups, write-downs or write-offs with respect to such Investment.
"Investment Fund" means (i) Reckson Strategic Venture Partners LLC, and
(ii) a Person in which Reckson Service Industries Inc. or a Subsidiary thereof
is a general partner or a managing member, in the case of a partnership or
limited liability company, and which, in the case of a corporation, has the
right to elect a majority of the board of directors.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"knowledge" with reference to the Company, the Borrower, or any
Subsidiary of either of them, means the actual knowledge of such Person after
reasonable inquiry (which reasonable inquiry shall include, without limitation,
interviewing and questioning such other Persons as the Company, the Borrower, or
such Subsidiary, as applicable, deems reasonably necessary).
"Lease" means a lease, license, concession agreement or other agreement
providing for the use or occupancy of any portion of any Project, including all
amendments, supplements, modifications and assignments thereof and all side
letters or side agreements relating thereto.
"Lender" means each of the Administrative Agent, and each financial
institution a signatory hereto as a Lender as of the Closing Date and, at any
other given time, each financial institution which is a party hereto as an
Administrative Agent or Lender, whether as a signatory hereto or pursuant to an
Assignment and Acceptance, and regardless of the capacity in which such entity
is acting (i.e. whether as Administrative Agent or Lender).
"Leverage Ratio" means the ratio, expressed as a percentage, of the
Total Outstanding Indebtedness to the Total Value.
"Liabilities and Costs" means all liabilities, obligations,
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful or
wanton injury, damage or threat to the environment, natural resources or public
health or welfare, costs and expenses (including, without limitation, attorney,
expert and consulting fees and costs of investigation, feasibility or Remedial
Action studies), fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or future.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, conditional sale agreement, deposit arrangement, security interest,
encumbrance, lien (statutory or other and including, without limitation, any
Environmental Lien), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever in respect of any
property of a Person, whether granted voluntarily or imposed by law, and
includes the interest of a lessor under a Capital Lease or under any financing
lease having substantially the same economic effect as any of the foregoing and
the filing of any financing statement or similar notice (other than a financing
statement filed by a "true" lessor pursuant to Section 9-408 of the Uniform
Commercial Code), naming the owner of such property as debtor, under the Uniform
Commercial Code or other comparable law of any jurisdiction.
"Limited Partners" means those Persons who from time to time are
limited partners of the Borrower; and "Limited Partner" means each of the
Limited Partners, individually.
"Loan Account" has the meaning set forth in Section 4.3(b).
"Loan Documents" means this Agreement, the Notes and the Guaranty.
"Loans" means the loans made by a Lender pursuant to Section 2.1;
provided, that if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Conversion/Continuation, the term "Loan"
shall refer to the combined principal amount resulting from such combination or
to each of the separate principal amounts resulting from such subdivision, as
the case may be.
"Management Company" means, collectively (i) Reckson Management Group,
Inc., a Delaware corporation, and its wholly-owned or controlled Subsidiaries
and (ii) such other property management companies controlled (directly or
indirectly) by the Company or the Borrower and which property management
companies manage properties owned by the Company, the Borrower and its
Subsidiaries and for which the Borrower has previously provided the
Administrative Agent with: (1) notice of such property management company, (2)
evidence reasonably satisfactory to the Administrative Agent that such property
management company is controlled (directly or indirectly) by the Company or the
Borrower, and (3) evidence reasonably satisfactory to the Administrative Agent
that such property management company manages properties owned, in whole or in
part by the Company or the Borrower or its Subsidiaries.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U.
"Material Adverse Effect" means a material adverse effect upon (i) the
financial condition or assets of the Company, the Borrower, and their
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its
material obligations under the Loan Documents, (iii) the ability of the Company
or Reckson FS Limited Partnership to perform its material obligations under the
Guaranty, or (iv) the ability of the Lenders or the Administrative Agent to
enforce any of the Loan Documents.
"Maximum Credit Amount" means, at any particular time, the Commitments
at such time.
"Minority Holdings" means any interests in partnerships, joint
ventures, limited liability companies, trusts, associations and corporations
held or owned directly or indirectly by the Borrower and/or the Company which
are not wholly-owned by the Borrower and/or the Company.
"Moody's" means Moody's Investor Services, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either the Borrower or any ERISA Affiliate or in respect
of which the Borrower or any ERISA Affiliate has assumed any liability.
"Net Cash Proceeds" means all cash when and as received in connection
with the sale or refinancing of any asset, or any sale of any equity interest
(other than such as would give rise to Net Offering Proceeds) in the Borrower,
the Company, or any of their Subsidiaries, less reasonable costs and expenses,
repayment of secured indebtedness with respect to the applicable asset, and net
of an amount equal to taxable capital gains and real estate transfer taxes
payable in connection with any asset sale.
"Net Offering Proceeds" means all cash or other assets received by the
Company as a result of the sale of common shares, preferred shares, partnership
interests, limited liability company interests, convertible securities or other
ownership or equity interests in the Company, other than in connection with the
acquisition of an asset or the equity securities of any Person but only to the
extent that no cash is received in connection therewith, less customary costs,
expenses and discounts of issuance paid by the Company.
"NOI" means (x) net operating income determined in accordance with
GAAP, before gains or losses from extraordinary items relating to any Real
Property, plus (y) (i) any interest expense relating to such Real Property, (ii)
depreciation and amortization relating to such Real Property, and (iii) Property
Level G&A to the extent included in the calculation of net operating income,
less (z) (i) free rent and accrued rent with respect to tenants that are more
than 90 days in arrears in the payment of rent, and further adjusted to omit the
straight line treatment of rent, so as to account for rent on an accrual basis,
(ii) any interest income relating to such Real Property, and (iii) the greater
of Property Level G&A to the extent included in the calculation of net operating
income and an amount equal to 3% of gross revenues with respect to a Real
Property.
"Non Pro Rata Loan" has the meaning set forth in Section 4.2 (b)(v).
"Note" has the meaning set forth in Section 4.3(a); "Notes" means,
collectively, all of such Notes outstanding at any given time.
"Notice of Borrowing" means a notice substantially in the form of
EXHIBIT C attached hereto and made a part hereof.
"Notice of Conversion/Continuation" means a notice substantially in the
form of EXHIBIT D attached hereto and made a part hereof with respect to a
proposed conversion or continuation of a Loan pursuant to Section 5.1(c).
"Obligations" means all Loans, advances, debts, liabilities and
monetary obligations owing by the Borrower to the Administrative Agent, any
other Lender, or any Person entitled to indemnification pursuant to Section 14.3
of this Agreement, of any kind or nature, arising under this Agreement, the
Notes or any other Loan Document. The term includes, without limitation, all
interest, charges, reasonable expenses, fees, reasonable attorneys' fees and
disbursements and any other sum chargeable to the Borrower under this Agreement
or any other Loan Document.
"Officer's Certificate" means, as to a corporation, a certificate
executed on behalf of such corporation by the chairman of its board of directors
(if an officer of such corporation) or its chief executive officer, president,
any of its vice-presidents, its chief financial officer, or its treasurer and,
as to a partnership, a certificate executed on behalf of such partnership by the
chairman of the board of directors (if an officer of such corporation) or chief
executive officer, president, any vice-president, or treasurer of the general
partner of such partnership.
"Operating Account" has the meaning set forth in Section 9.11 hereof.
"Operating Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which is not
a Capital Lease.
"Organizational Documents" means, with respect to any corporation,
limited liability company, or partnership (i) the articles/certificate of
incorporation (or the equivalent organizational documents) of such corporation
or limited liability company, (ii) the partnership agreement executed by the
partners in the partnership, (iii) the by-laws (or the equivalent governing
documents) of the corporation, limited liability company or partnership, and
(iv) any document setting forth the designation, amount and/or relative rights,
limitations and preferences of any class or series of such corporation's Capital
Stock or such limited liability company's or partnership's equity or ownership
interests.
"OSHA" means the Occupational Safety and Health Act of 1970, 29 U.S.C.
sections 651 et seq., any amendments thereto, any successor statutes and any
regulations or guidance promulgated thereunder.
"Other Management Company" means property management companies
controlled (directly or indirectly) by the Company or the Borrower which may
manage properties owned by third parties.
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
succeeding to the functions thereof.
"Permits" means any permit, consent, approval, authorization license,
variance, or permission required from any Person, including any Governmental
Approvals.
"Permitted Securities Options" means the subscriptions, options,
warrants, rights, convertible Securities and other agreements or commitments
relating to the issuance of the Borrower's Securities or the Company's Capital
Stock identified as such on SCHEDULE 1.1.2.
"Person" means any natural person, corporation, limited liability
company, limited partnership, general partnership, joint stock company, joint
venture, association, company, trust, bank, trust company, land trust, business
trust or other organization, whether or not a legal entity, and any Governmental
Authority.
"Plan" means an employee benefit plan defined in Section 3(3) of ERISA
in respect of which the Borrower or any ERISA Affiliate (i) is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA or (ii) has assumed or is otherwise subject to any liability.
"Potential Event of Default" means an event which, with the giving of
notice or the lapse of time, or both, would constitute an Event of Default.
"Prepayment Date" has the meaning set forth in Section 4.1(d).
"Project" means any office or industrial properties owned, directly or
indirectly, by any of the Consolidated Businesses or Minority Holdings.
"Property" means any Real Property or personal property, plant,
building, facility, structure, equipment, general intangible, receivable, or
other asset owned or leased by any Consolidated Business or any Minority
Holding. The definition of "Property" shall specifically exclude items of Real
Property or personal property owned or leased by members of the Reckler family.
"Property Level G&A" means general and administrative expenses
allocated to the Properties.
"Pro Rata Share" means, with respect to any Lender, the percentage
obtained by dividing (i) the sum of such Lender's Commitment (in each case, as
adjusted from time to time in accordance with the provisions of this Agreement
or any Assignment and Acceptance to which such Lender is a party) by (ii) the
aggregate amount of all of the Commitments.
"Quarterly Capital Expenditure Reserve Amounts" means, as of the first
day of any calendar quarter for the immediately preceding quarter, one quarter
of the Capital Expenditure Reserve Amounts.
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42
U.S.C. sections 6901 et seq., any amendments thereto, any successor statutes,
and any regulations or guidance promulgated thereunder.
"Real Property" means all of the Borrower's and the consolidated
Subsidiaries' present and future right, title and interest (including, without
limitation, any leasehold estate) in (i) any plots, pieces or parcels of land,
(ii) any Improvements of every nature whatsoever (the rights and interests
described in clauses (i) and (ii) above being the "Premises"), (iii) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and
public places adjoining such land, and any other interests in property
constituting appurtenances to the Premises, or which hereafter shall in any way
belong, relate or be appurtenant thereto and (iv) all other rights and
privileges thereunto belonging or appertaining and all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to or of any
of the rights and interests described in clause (iii) above.
"Reckson" means Reckson Operating Partnership, L.P., a Delaware limited
partnership.
"Recourse Secured Indebtedness Limitation" has the meaning set forth in
Section 10.11 hereof.
"Reference Bank" means Chase.
"Register" has the meaning set forth in Section 14.1(c).
"Regulation A" means Regulation A of the Federal Reserve Board as in
effect from time to time.
"Regulation T" means Regulation T of the Federal Reserve Board as in
effect from time to time.
"Regulation U" means Regulation U of the Federal Reserve Board as in
effect from time to time.
"Regulation X" means Regulation X of the Federal Reserve Board as in
effect from time to time.
"REIT" means a domestic trust or corporation that qualifies as a real
estate investment trust under the provisions of Sections 856, et seq. of the
Internal Revenue Code.
"Release" means any release, spill, emission, leaking, pumping,
pouring, dumping, injection, deposit, disposal, abandonment, or discarding of
barrels, containers or other receptacles, discharge, emptying, escape,
dispersal, leaching or migration into the indoor or outdoor environment or into
or out of any Property, including the movement of Contaminants through or in the
air, soil, surface water, groundwater or Property.
"Remedial Action" means actions required to (i) clean up, remove, treat
or in any other way address Contaminants in the indoor or outdoor environment;
(ii) prevent the Release or threat of Release or minimize the further Release of
Contaminants; or (iii) investigate and determine if a remedial response is
needed and to design such a response and post-remedial investigation,
monitoring, operation and maintenance and care.
"Reportable Event" means any of the events described in Section 4043(c)
of ERISA and the regulations promulgated thereunder as in effect from time to
time but not including any such event as to which the thirty (30) day notice
requirement has been waived by applicable PBGC regulations.
"Requirements of Law" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act, the Securities Exchange Act,
Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or Permit and Environmental, Health or
Safety Requirement of Law.
"Requisite Lenders" means Lenders whose Pro Rata Shares, in the
aggregate, are equal to or greater than sixty-six and two-thirds percent
(66.67%); provided, however, that, in the event any of the Lenders shall have
failed to fund its Pro Rata Share of any Loan requested by the Borrower which
such Lenders are obligated to fund under the terms of this Agreement and any
such failure has not been cured as provided in Section 4.2(b)(v)(B), then for so
long as such failure continues, "Requisite Lenders" means Lenders (excluding all
Lenders whose failure to fund their respective Pro Rata Shares of such Loans
have not been so cured) whose Pro Rata Shares represent sixty-six and two-thirds
percent (66.67%) or more of the aggregate Pro Rata Shares of such Lenders;
provided, further, however, that, in the event that the Commitments have been
terminated pursuant to the terms of this Agreement, "Requisite Lenders" means
Lenders (without regard to such Lenders' performance of their respective
obligations hereunder) whose aggregate ratable shares (stated as a percentage)
of the aggregate outstanding principal balance of all Loans are sixty six and
two thirds percent (66.67%) or more.
"Revolving Credit Agreement" means the Credit Agreement, dated as of
July 23, 1998, among the Borrower, Reckson Morris Operating Partnership, L.P.,
Chase, as administrative agent, UBS AG, New York Branch, as syndication agent,
PNC Bank, National Association, as documentation agent, and the other lenders
party thereto, as amended by the First Amendment to Credit Agreement, dated as
of August 31, 1999, and the Second Amendment to Credit Agreement, dated as of
September 27, 1999, and as the same may be further amended, modified or
restated.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Secured Indebtedness" means any Indebtedness secured by a Lien.
"Secured Loan-to-Value Ratio" means, the ratio, expressed as a
percentage, of the aggregate amount of any Secured Indebtedness as of the date
of the determination to the value with respect to such Real Property encumbered
thereby as of such date, which value shall be determined by reference to the
formula set forth in the definition of "Total Value" with respect to each such
Real Property.
"Securities" means any stock, shares, voting trust certificates,
partnership interests, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities", including, without
limitation, any "security" as such term is defined in Section 8-102 of the
Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
Obligations.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and any successor statute.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"Servicing EBITDA" means, with respect to the Management Company or any
other service company owned by the Borrower or the Company, as of the first day
of each fiscal quarter for the immediately preceding fiscal quarter, an amount,
determined in accordance with GAAP, equal to (i) total earnings relating to such
companies' operations adjusted to exclude amounts that are more than 90 days
delinquent, less (ii) total operating expenses relating to such operations,
including corporate marketing, general and administrative expenses.
"Solvent", when used with respect to any Person, means that at the time
of determination:
(i) the fair saleable value of its assets is in excess of the total
amount of its liabilities (including, without limitation, contingent
liabilities); and
(ii) the present fair saleable value of its assets is greater than its
probable liability on its existing debts as such debts become absolute and
matured; and
(iii) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other commitments) as
they mature; and
(iv) it has capital sufficient to carry on its business as conducted
and as proposed to be conducted.
"Subsidiary" of a Person means any corporation, limited liability
company, general or limited partnership, or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned or controlled by such Person, one or more of
the other subsidiaries of such Person or any combination thereof.
"Taxes" has the meaning set forth in Section 13.1(a).
"Telerate Page 3750" means the display as "Page 3750" on the Associated
Press-Dow Jones Market Service (or such other page as may replace Page 3750 on
the Associated Press-Dow Jones Market Service or such other service as may be
nominated by the British Bankers' Association as the information vendor for the
purpose of displaying British Bankers' Association interest settlement rates for
U.S. Dollar deposits). Any Eurodollar Rate determined on the basis of the rate
displayed on Telerate Page 3750 in accordance with the provisions hereof shall
be displayed by the Associated Press-Dow Jones Telerate Service within one hour
of the time when such rate is first displayed by such service.
"Tenant Allowance" means a cash allowance paid to a tenant by the
landlord pursuant to a Lease.
"Termination Date" means the earliest to occur of (i) June 16, 2001
(or, if not a Business Day, the next preceding Business Day); (ii) the date of
termination of the Commitments pursuant to the terms of this Agreement; and
(iii) the date on which the Revolving Credit Agreement is refinanced in an
amount equal to the sum of the Commitments and the aggregate "Commitments" (as
such term is defined in the Revolving Credit Agreement) under the Revolving
Credit Agreement.
"TI Work" means any construction or other "build-out" of tenant
leasehold improvements to the space demised to such tenant under Leases
(excluding such tenant's furniture, fixtures and equipment) performed pursuant
to the terms of such Leases, whether or not such tenant improvement work is
performed by or on behalf of the landlord or as part of a Tenant Allowance.
"Total Adjusted EBITDA" means, for any period, (i) net income
determined in accordance with GAAP, plus (ii) depreciation and amortization
deducted in the calculation of net income, plus (iii) taxes on income deducted
in the calculation of such net income, less (iv) the gains (and plus the losses)
from extraordinary items, asset sales, write-ups, or debt forgiveness included
in the calculation of such net income, less (v) the aggregate Quarterly Capital
Expenditure Reserve Amounts for such period.
"Total Interest Expense" means, for any period, the sum of (i) interest
expense of the Consolidated Businesses paid during such period and (ii) interest
expense of the Consolidated Businesses accrued and/or capitalized for such
period and (iii) the portion of the interest expense of Minority Holdings
allocable to the Borrower in accordance with GAAP and paid during such period
and (iv) the portion of the interest expense of Minority Holdings allocable to
the Borrower in accordance with GAAP and accrued and/or capitalized for such
period, in each case including participating interest expense but excluding
extraordinary interest expense, and net of amortization of deferred costs
associated with new financings or refinancings of existing Indebtedness.
"Total Outstanding Indebtedness" means, for any period, the sum of (i)
the amount of Indebtedness of the Consolidated Businesses set forth on the then
most recent quarterly financial statements of the Borrower, prepared in
accordance with GAAP, plus any additional Indebtedness incurred by the
Consolidated Businesses since the time of such statements, less any Indebtedness
repaid by the Consolidated Businesses since the time of such statements, and
(ii) the outstanding amount of Minority Holding Indebtedness set forth on the
then most recent quarterly financial statements of the Borrower or the
applicable Minority Holding, prepared in accordance with GAAP and allocable in
accordance with GAAP to any of the Consolidated Businesses, plus any additional
Minority Holding Indebtedness incurred by the Minority Holdings allocable in
accordance with GAAP to any of the Consolidated Businesses since the time of
such statements, less any Indebtedness repaid by the Minority Holdings allocable
in accordance with GAAP to any of the Consolidated Businesses since the time of
such statements, and (iii) the Contingent Obligations of the Consolidated
Businesses and, to the extent allocable to the Consolidated Businesses in
accordance with GAAP, of the Minority Holdings.
"Total Outstanding Indebtedness Limitation" has the meaning set forth
in Section 10.11 hereof.
"Total Secured Outstanding Indebtedness Limitation" has the meaning set
forth in Section 10.11 hereof.
"Total Unsecured Outstanding Indebtedness" means that portion of Total
Outstanding Indebtedness that is not secured by a Lien.
"Total Value" means (A) the sum of (i) Valuation NOI divided by 9.5%;
(ii) the Investment in office and industrial Projects owned by the Consolidated
Businesses for less than four fiscal quarters which have not achieved an
occupancy rate of 85% for one fiscal quarter; (iii) unrestricted Cash and Cash
Equivalents; (iv) land (at book value) and Construction Asset Cost, which credit
will be limited to fifteen percent (15%)(exclusive of build-to-suit Projects
that are 75% pre-leased or Projects which are less than 75% pre-leased but have
a pro-forma yield of 12% or more, based upon executed leases and the cost of
acquisition plus the estimated cost to complete the same, which estimated cost
to complete shall be determined in a manner reasonably acceptable to the
Administrative Agent) of Total Value; (v) NOI not otherwise set forth in this
definition, divided by twelve percent (12%); (vi) Servicing EBITDA of the
Management Company or other such service companies for the immediately preceding
four consecutive quarters divided by twenty percent (20%); and (vii) any
investment in or loan to (based on the actual cash investment in or loan to),
directly or indirectly, an affiliated or unaffiliated operating company and
investments in or loans to Investment Funds either directly or indirectly or
joint venture arrangements with Investment Funds, which credit will be limited
to $250,000,000, less (B) the quotient of (x) the Capital Expenditure Reserve
Amounts for such period, divided by (y) 9.5%.
"Treasury Rate" means, as of any date, a rate equal to the annual yield
to maturity on the U.S. Treasury Constant Maturity Series with a ten year
maturity, as such yield is reported in Federal Reserve Statistical Release H.15
- -- Selected Interest Rates, published most recently prior to the date the
applicable Treasury Rate is being determined. Such yield shall be determined by
straight line linear interpolation between the yields reported in Release H.15,
if necessary. In the event Release H.15 is no longer published, the
Administrative Agent shall select, in its reasonable discretion, an alternate
basis for the determination of Treasury yield for U.S. Treasury Constant
Maturity Series with ten year maturities.
"Unencumbered Capital Expenditure Reserve Amounts" means, for any
period, the aggregate of Capital Expenditures Reserve Amounts with respect to
Real Property that is not subject to or encumbered by Secured Indebtedness.
"Uniform Commercial Code" means the Uniform Commercial Code as enacted
in the State of New York, as it may be amended from time to time.
"Unsecured Interest Expense" means the interest expense paid, accrued
or capitalized on the Total Unsecured Outstanding Indebtedness for the
applicable period.
"Unused Facility" shall mean the amount, calculated daily, by which the
Commitments exceed the outstanding principal amount of the Loans.
"Valuation NOI" means, the sum of (x) with respect to any office or
industrial Project or any office or industrial Minority Holding, which has been
owned by the Borrower for not less than four consecutive quarters, as of the
first day of each fiscal quarter for the immediately preceding consecutive four
fiscal quarters, an amount equal to NOI relating to such Project or the
Borrower's pro rata share of such Minority Holding for such period, and (y) with
respect to any office or industrial Project or Minority Holding, which has been
owned by the Borrower for less than four consecutive quarters but which has
achieved an occupancy rate of not less than 85% for the immediately preceding
quarter (exclusive of projects under development), as of the first day of each
quarter until such time as such Project or Minority Holding shall qualify under
clause (x) hereof, an amount equal to the product of (i) the NOI relating to
such Project or the Borrower's pro rata share of such Minority Holding for the
immediately preceding quarter, and (ii) four (4). An example of the foregoing
calculation is set forth on EXHIBIT G hereto.
1.2. Computation of Time Periods. In this Agreement, in the computation
of periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding". Periods of days referred to in this Agreement shall be counted
in calendar days unless Business Days are expressly prescribed. Any period
determined hereunder by reference to a month or months or year or years shall
end on the day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically corresponding to the
first day of such period, provided that if such period commences on the last day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month during which such period is to end), such period
shall, unless otherwise expressly required by the other provisions of this
Agreement, end on the last day of the calendar month.
1.3. Accounting Terms. Subject to Section 14.4, for purposes of this
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
1.4. Other Terms. All other terms contained in this Agreement shall,
unless the context indicates otherwise, have the meanings assigned to such terms
by the Uniform Commercial Code to the extent the same are defined therein.
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.1. Loans.
(a) Availability. Subject to the terms and conditions set forth in this
Agreement, each Lender hereby severally and not jointly agrees to make loans, in
Dollars (each individually, a "Loan" and, collectively, the "Loans") to the
Borrower as of the Closing Date, in an amount not to exceed such Lender's Pro
Rata Share of the Credit Availability at such time. The aggregate amount of
Loans to be made hereunder with respect to the Borrower shall not exceed One
Hundred Million Dollars ($100,000,000). All Loans shall be borrowed on the
Closing Date. All Loans comprising the same Borrowing under this Agreement shall
be made by the Lenders simultaneously and proportionately to their then
respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any failure by any other Lender to perform its obligation to
make a Loan hereunder nor shall the Commitment of any Lender be increased or
decreased as a result of any such failure. Subject to the provisions of this
Agreement, the Borrower may repay any outstanding Loan on any day which is a
Business Day and any amounts so repaid may not be reborrowed.
(b) Notice of Borrowing. The Borrower shall deliver to the
Administrative Agent a Notice of Borrowing, signed by it (x) no later than 12:00
noon (New York time) on the Business Day immediately preceding the proposed
Closing Date, in the case of a Borrowing of Base Rate Loans and (y) no later
than 11:00 a.m. (New York time) at least three (3) Business Days in advance of
the proposed Closing Date, in the case of a Borrowing of Eurodollar Rate Loans.
Such Notice of Borrowing shall specify (i) the amount of the proposed Borrowing,
(ii) whether the proposed Borrowing will be of Base Rate Loans or Eurodollar
Rate Loans, (iii) in the case of Eurodollar Rate Loans, the requested Eurodollar
Interest Period, (iv) instructions for the disbursement of the proceeds of the
proposed Borrowing, (v) an Officer's Certificate of the Borrower with respect to
compliance with (including calculation thereof) Sections 10.11(a) and 10.11(e),
and (vi) that no Event of Default shall have occurred and be outstanding. Any
Notice of Borrowing (or telephonic notice in lieu thereof) given pursuant to
this Section 2.1(b) shall be irrevocable.
(c) Making of Loans. (i) Promptly after receipt of the Notice of
Borrowing under Section 2.1(b), the Administrative Agent shall notify each
Lender by facsimile transmission, or other similar form of transmission, of the
proposed Borrowing. Each Lender shall deposit an amount equal to its Pro Rata
Share of the Borrowing requested by the Borrower with the Administrative Agent
at its office in New York, New York, in immediately available funds, not later
than 12:00 noon. (New York time) on the Closing Date. Subject to the fulfillment
of the conditions precedent set forth in Section 6.1, the Administrative Agent
shall make the proceeds of such amounts received by it available to the Borrower
at the Administrative Agent's office in New York, New York on such Closing Date
and shall disburse such proceeds in accordance with the Borrower's disbursement
instructions set forth in the Notice of Borrowing. The failure of any Lender to
deposit the amount described above with the Administrative Agent on the Closing
Date shall not relieve any other Lender of its obligations hereunder to make its
Loan on the Closing Date. In the event the conditions precedent set forth in
Section 6.1 are not fulfilled as of the Closing Date for the Borrowing, the
Administrative Agent shall promptly return, by wire transfer of immediately
available funds, the amount deposited by each Lender to such Lender.
(ii) Unless the Administrative Agent shall have been notified by any
Lender on the Business Day immediately preceding the Closing Date in respect of
any Borrowing that such Lender does not intend to fund its Loan requested to be
made on the Closing Date, the Administrative Agent may assume that such Lender
has funded its Loan and is depositing the proceeds thereof with the
Administrative Agent on the Closing Date, and the Administrative Agent in its
sole discretion may, but shall not be obligated to, disburse a corresponding
amount to the Borrower on the Closing Date. If the Loan proceeds corresponding
to that amount are advanced to the Borrower by the Administrative Agent but are
not in fact deposited with the Administrative Agent by such Lender on or prior
to the Closing Date, such Lender agrees to pay, and in addition the Borrower as
the case may be, agrees to repay, to the Administrative Agent forthwith on
demand such corresponding amount, together with interest thereon, for each day
from the date such amount is disbursed to or for the benefit of the Borrower, as
the case may be, until the date such amount is paid or repaid to the
Administrative Agent, at the interest rate applicable to such Borrowing. If such
Lender shall pay to the Administrative Agent the corresponding amount, the
amount so paid shall constitute such Lender's Loan, and if both such Lender and
the Borrower shall pay and repay such corresponding amount, the Administrative
Agent shall promptly pay to the Borrower such corresponding amount. This Section
2.1(c)(ii) does not relieve any Lender of its obligation to make its Loan on the
Closing Date.
2.2. Intentionally Omitted.
2.3. Use of Proceeds of Loans. The proceeds of the Loans hereunder may
be used for the purposes of:
(a) investments in direct or indirect interests in industrial and
office properties (and notes secured by such properties) located in the United
States;
(b) renovation and redevelopment of Properties owned and operated by
the Borrower;
(c) funding of TI Work and Tenant Allowances;
(d) financing expansions, renovations and new construction related to
Properties owned and operated by the Borrower;
(e) refinancing of existing Indebtedness for borrowed money secured by
Projects;
(f) funding, directly or indirectly, of investments in and loans to
Investment Funds, Reckson Service Industries Inc., Subsidiaries, Affiliates and
Minority Holdings;
(g) working capital needs of the Borrower; and
(h) loans to Persons in connection with such Person's contribution of
real property to the Consolidated Businesses or Minority Holdings.
2.4. Termination Date. All outstanding Credit Obligations shall be paid
in full on the Termination Date.
2.5. Maximum Credit Facility. Notwithstanding anything in this
Agreement to the contrary, in no event shall the aggregate principal Credit
Obligations exceed the Maximum Credit Amount.
2.6. Authorized Agents. On the Closing Date and from time to time
thereafter, the Borrower shall deliver to the Administrative Agent an Officer's
Certificate setting forth the names of the employees and agents authorized to
request Loans and to request a conversion/continuation of any Loan and
containing a specimen signature of each such employee or agent. The employees
and agents so authorized shall also be authorized to act for the Borrower in
respect of all other matters relating to the Loan Documents. The Administrative
Agent and the Lenders shall be entitled to rely conclusively on such employee's
or agent's authority to request such Loan or such conversion/continuation until
the Administrative Agent receives written notice to the contrary. The
Administrative Agent shall not have any duty to verify the authenticity of the
signature appearing on any written Notice of Borrowing or Notice of
Conversion/Continuation or any other document, and, with respect to an oral
request for such a Loan or such conversion/continuation, the Administrative
Agent shall have no duty to verify the identity of any person representing
himself or herself as one of the employees or agents authorized to make such
request or otherwise to act on behalf of the Borrower. None of the
Administrative Agent or the Lenders shall incur any liability to the Borrower or
any other Person in acting upon any telephonic or facsimile notice referred to
above which the Administrative Agent believes to have been given by a person
duly authorized to act on behalf of the Borrower and the Borrower hereby
indemnifies and holds harmless the Administrative Agent and each other Lender
from any loss or expense the Administrative Agent or the Lenders might incur in
acting in good faith as provided in this Section 2.6; provided, however, that
Borrower shall not indemnify the applicable party for acts resulting from its
own gross negligence or wilful misconduct.
ARTICLE III
INTENTIONALLY OMITTED
ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.1. Prepayments; Reductions in Commitments.
(a) Voluntary Prepayments. The Borrower may, at any time and from time
to time, prepay the Loans, in part or in their entirety, subject to the
following limitations. The Borrower shall give at least five (5) Business Days'
prior written notice to the Administrative Agent (which the Administrative Agent
shall promptly transmit to each Lender) of any prepayment in the entirety to be
made prior to the occurrence of an Event of Default, which notice of prepayment
shall specify the date (which shall be a Business Day) of prepayment. When
notice of prepayment is delivered as provided herein, the outstanding principal
amount of the Loans on the prepayment date specified in the notice shall become
due and payable on such prepayment date. Each voluntary partial prepayment of
the Loans shall be in a minimum amount of $1,000,000 and in integral multiples
of $500,000 in excess of that amount (or such lesser amount in the event the
unpaid principal amount of any Loan is less than such minimum prepayment
amount). Eurodollar Rate Loans may be prepaid in part or in their entirety only
upon payment of the amounts described in Section 5.2(f). Amounts prepaid
pursuant to this Section 4.1(a) may not be reborrowed.
(b) Voluntary Reductions In Commitments. The Borrower may, upon at
least five (5) days' prior written notice to the Administrative Agent (which the
Administrative Agent shall promptly transmit to each Lender), at any time and
from time to time, terminate in whole or permanently reduce in part the
Commitments, provided that (i) the Borrower shall have made whatever payment may
be required to reduce the Credit Obligations to an amount less than or equal to
the Commitments as reduced, which amount shall become due and payable on the
date specified in such notice and (ii) in the case of a reduction, the minimum
Commitments that shall remain outstanding shall be $10,000,000. Any partial
reduction of the Commitments shall be in an aggregate minimum amount of
$1,000,000 and integral multiples of $1,000,000 in excess of that amount, and
shall reduce the Commitment of each Lender proportionately in accordance with
its Pro Rata Share. Any notice of termination or reduction given to the
Administrative Agent under this Section 4.1(b) shall specify the date (which
shall be a Business Day) of such termination or reduction and, with respect to a
partial reduction, and the aggregate principal amount thereof.
(c) No Penalty. The prepayments and payments in respect of reductions
and terminations described in clauses (a) and (b) of this Section 4.1 may be
made without premium or penalty (except as provided in Section 5.2(f)).
(d) Mandatory Prepayment. If at any time during the term of this
Agreement, the Borrower shall enter into a credit facility in a maximum
aggregate amount in excess of the aggregate "Commitments" (as such term is
defined in the Revolving Credit Agreement) under the Revolving Credit Agreement,
the Borrower shall repay the Loans in an amount equal to such excess. If at any
time from and after the Closing Date: (i) the Company or the Borrower merges or
consolidates with another Person and the Company or Borrower, as the case may
be, is not the surviving entity, or (ii) the Company, the Borrower, any of its
Affiliates or consolidated Subsidiaries or the Management Company ceases to
provide property management and leasing services to at least 80% of the total
number of Projects in which the Borrower has a direct ownership interest (the
date any such event shall occur being the "Prepayment Date"), the Borrower shall
be required to prepay the Loans in their entirety as if the Prepayment Date were
the Termination Date and, the Credit Commitment thereupon shall be terminated.
The Borrower shall immediately make such prepayment together with interest
accrued to the date of the prepayment on the principal amount prepaid. In
connection with the prepayment of any Loan prior to the maturity thereof, the
Borrower shall also pay any applicable expenses pursuant to Section 5.2(f). Each
such prepayment shall be applied to prepay ratably the Loans of the Lenders.
Amounts prepaid pursuant to this Section 4.1(d) may not be reborrowed.
4.2. Payments.
(a) Manner and Time of Payment. All payments of principal of and
interest on the Loans and other Obligations (including, without limitation, fees
and expenses) which are payable to the Administrative Agent or any other Lender
shall be made without condition or reservation of right, in immediately
available funds, delivered to the Administrative Agent not later than 12:00 noon
(New York time) on the date and at the place due, to such account of the
Administrative Agent as it may designate, for the account of the Administrative
Agent or such other Lender, as the case may be; and funds received by the
Administrative Agent, including, without limitation, funds in respect of any
Loans to be made on that date, not later than 12:00 noon (New York time) on any
given Business Day shall be credited against payment to be made that day and
funds received by the Administrative Agent after that time shall be deemed to
have been paid on the next succeeding Business Day. Payments actually received
by the Administrative Agent for the account of the Lenders, or any of them,
shall be paid to them by the Administrative Agent on the same Business Day, if
received not later than 12:00 noon (New York time), or on the immediately
succeeding Business Day if received after 12:00 noon (New York time). If the
Administrative Agent shall fail to pay to the Lenders any amounts due them in
accordance with the previous sentence, then, the Administrative Agent shall pay
to the applicable Lenders interest on any such amounts, calculated at the
Federal Funds Rate, from the date on which such amounts should have been paid
through the date immediately prior to the date on which such amounts are
actually paid.
(b) Apportionment of Payments. (i) Subject to the provisions of Section
4.2(b)(v), all payments of principal and interest in respect of outstanding
Loans, all payments of fees and all other payments in respect of any other
Obligations, shall be allocated among such of the Lenders as are entitled
thereto, in proportion to their respective Pro Rata Shares or otherwise as
provided herein. Subject to the provisions of Section 4.2(b)(ii), all such
payments and any other amounts received by the Administrative Agent from or for
the benefit of the Borrower shall be applied in the following order:
(A) to pay principal of and interest on any portion of the Loans which
the Administrative Agent may have advanced on behalf of any Lender other
than Chase for which the Administrative Agent has not then been reimbursed
by such Lender or the Borrower,
(B) to pay all other Obligations then due and payable, and
(C) as the Borrower so designates.
Unless otherwise designated by the Borrower, all principal payments in respect
of its Loans shall be applied first, to repay its outstanding Base Rate Loans,
and then to repay its outstanding Eurodollar Rate Loans with those Eurodollar
Rate Loans which have earlier expiring Eurodollar Interest Periods being repaid
prior to those which have later expiring Eurodollar Interest Periods.
(ii) After the occurrence of an Event of Default and while the same is
continuing which results in an acceleration of the Obligations in accordance
with Section 11.2, the Administrative Agent shall apply all payments in respect
of any Obligations in the following order:
(A) first, to pay principal of and interest on any portion of the
Loans which the Administrative Agent may have advanced on behalf of any
Lender other than Chase for which the Administrative Agent has not then
been reimbursed by such Lender or the Borrower, as the case may be;
(B) second, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Administrative Agent;
(C) third, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Lenders;
(D) fourth, to pay interest due in respect of Loans;
(E) fifth, to the ratable payment or prepayment of principal
outstanding on Loans; and
(F) sixth, to the ratable payment of all other Obligations.
The order of priority set forth in this Section 4.2(b)(ii) and the related
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Administrative Agent and the other Lenders as among
themselves. The order of priority set forth in clauses (A) and (B) of this
Section 4.2(b)(ii) may be changed only with the prior written consent of the
Administrative Agent.
(iii) Subject to Section 4.2(b)(iv), the Administrative Agent shall
promptly distribute to each Lender at its primary address set forth on the
appropriate signature page hereof or the signature page to the Assignment and
Acceptance by which it became a Lender, or at such other address as a Lender may
request in writing, such funds as such Person may be entitled to receive,
subject to the provisions of Article XII; provided that the Administrative Agent
shall under no circumstances be bound to inquire into or determine the validity,
scope or priority of any interest or entitlement of any Lender and may suspend
all payments or seek appropriate relief (including, without limitation,
instructions from the Requisite Lenders or an action in the nature of
interpleader) in the event of any doubt or dispute as to any apportionment or
distribution contemplated hereby.
(iv) In the event that any Lender fails to fund its Pro Rata Share of
any Loan requested by the Borrower on its behalf which such Lender is obligated
to fund under the terms of this Agreement (the funded portion of such Loan being
hereinafter referred to as a "Non Pro Rata Loan"), until the earlier of such
Lender's cure of such failure and the termination of the Commitments, the
proceeds of all amounts thereafter repaid to the Administrative Agent by the
Borrower and otherwise required to be applied to such Lender's share of all
other Obligations pursuant to the terms of this Agreement shall be advanced to
the Borrower by the Administrative Agent on behalf of such Lender to cure, in
full or in part, such failure by such Lender, but shall nevertheless be deemed
to have been paid to such Lender in satisfaction of such other Obligations.
Notwithstanding anything in this Agreement to the contrary:
(A) the foregoing provisions of this Section 4.2(b)(v) shall apply
only with respect to the proceeds of payments of Obligations and shall not
affect the conversion or continuation of Loans pursuant to Section 5.1(c);
(B) a Lender shall be deemed to have cured its failure to fund its Pro
Rata Share of any Loan at such time as an amount equal to such Lender's
original Pro Rata Share of the requested principal portion of such Loan is
fully funded to the Borrower, whether made by such Lender itself or by
operation of the terms of this Section 4.2(b)(v), and whether or not the
Non Pro Rata Loan with respect thereto has been repaid, converted or
continued;
(C) amounts advanced to the Borrower to cure, in full or in part, any
such Lender's failure to fund its Pro Rata Share of any Loan ("Cure Loans")
shall bear interest at the Base Rate in effect from time to time, and for
all other purposes of this Agreement shall be treated as if they were Base
Rate Loans; and
(D) regardless of whether or not an Event of Default has occurred or
is continuing, and notwithstanding the instructions of the Borrower as to
its desired application, all repayments of principal which, in accordance
with the other terms of this Section 4.2, would be applied to its
outstanding Base Rate Loans shall be applied first, ratably to its Base
Rate Loans constituting Non Pro Rata Loans, second, ratably to its Base
Rate Loans other than those constituting Non Pro Rata Loans or Cure Loans
and, third, ratably to its Base Rate Loans constituting Cure Loans.
(c) Payments on Non-Business Days. Whenever any payment to be made by
the Borrower hereunder or under the Notes is stated to be due on a day which is
not a Business Day, the payment shall instead be due on the next succeeding
Business Day (or, as set forth in Section 5.2(b)(iv), the next preceding
Business Day).
4.3. Promise to Repay; Evidence of Indebtedness.
(a) Promise to Repay. The Borrower hereby agrees to pay when due the
principal amount of each Loan which is made to it, and further agrees to pay all
unpaid interest accrued thereon, in accordance with the terms of this Agreement
and the Notes. The Borrower shall execute and deliver to each Lender on the
Closing Date, a promissory note, in the form of Exhibit B attached hereto with
blanks appropriately completed, evidencing the Loans and thereafter shall
execute and deliver such other promissory notes as are necessary to evidence the
Loans made to it owing to the Lenders after giving effect to any assignment
thereof pursuant to Section 14.1, all in the form of Exhibit B attached hereto
with blanks appropriately completed (all such promissory notes and all
amendments thereto, replacements thereof and substitutions therefor being
collectively referred to as the "Borrower Notes"; and "Borrower Note" means any
one of the Borrower Notes).
(b) Loan Account. Each Lender shall maintain in accordance with its
usual practice an account or accounts (a "Loan Account") evidencing the
Indebtedness of the Borrower to such Lender resulting from each Loan owing to
such Lender from time to time, including the amount of principal and interest
payable and paid to such Lender from time to time hereunder and under the Notes.
(c) Control Account. The Register maintained by the Administrative
Agent pursuant to Section 14.1(c) shall include a control account, and a
subsidiary account for each Lender, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the type of
Loan comprising such Borrowing and any Eurodollar Interest Period applicable
thereto, (ii) the effective date and amount of each Assignment and Acceptance
delivered to and accepted by it and the parties thereto, (iii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower, as the case may be, to each Lender hereunder or under the Notes, and
(iv) the amount of any sum received by the Administrative Agent from the
Borrower hereunder and each Lender's share thereof.
(d) Entries Binding. The entries made in the Register and each Loan
Account shall be conclusive and binding for all purposes, absent manifest error.
(e) No Recourse. Notwithstanding anything contained in this Agreement,
any Note, or the Guaranty to the contrary, it is expressly understood and agreed
that nothing herein or therein shall be construed as creating any liability on
any Limited Partner or the general partner of Reckson FS Limited Partnership, or
any partner, officer, shareholder or director of any Limited Partner or any
officer, trustee, member, director, or employee of the Borrower or any
Guarantor, to pay any of the Obligations other than liability arising under
applicable law from or in connection with (i) its own fraud or (ii) the
misappropriation or misapplication by it of proceeds of the Loans; but nothing
contained in this Section 4.3(e) shall be construed to prevent the exercise of
any remedy allowed to the Administrative Agent or the Lenders by law or by the
terms of this Agreement or the other Loan Documents which does not relate to or
result in such an obligation by any Limited Partner or the general partner of
Reckson FS Limited Partnership or such other Persons to pay money.
ARTICLE V
INTEREST AND FEES
5.1. Interest on the Loans and other Obligations.
(a) Rate of Interest. All Loans and the outstanding principal balance
of all other Obligations shall bear interest on the unpaid principal amount
thereof from the date such Loans are made and such other Obligations are due and
payable until paid in full, except as otherwise provided in Section 5.1(d), as
follows:
(i) If a Base Rate Loan or such other Obligation, at a rate per annum
equal to the sum of (A) the Base Rate, as in effect from time to time as
interest accrues, plus (B) the then Applicable Margin for Base Rate Loans;
and
(ii) If a Eurodollar Rate Loan, at a rate per annum equal to the sum
of (A) the Eurodollar Rate determined for the applicable Eurodollar
Interest Period, plus (B) the then Applicable Margin for Eurodollar Loans.
The applicable basis for determining the rate of interest on the Loans shall be
selected by the Borrower at the time a Notice of Borrowing or a Notice of
Conversion/Continuation is delivered by the Borrower to the Administrative
Agent; provided, however, the Borrower may not select the Eurodollar Rate as the
applicable basis for determining the rate of interest on such a Loan if at the
time of such selection an Event of Default has occurred and is continuing. If on
any day any Loan is outstanding with respect to which notice has not been timely
delivered to the Administrative Agent in accordance with the terms of this
Agreement specifying the basis for determining the rate of interest on that day,
then for that day interest on that Loan shall be determined by reference to the
Base Rate.
(b) Interest Payments. (i) Interest accrued on each Loan, whether a
Base Rate Loan, a Eurodollar Loan shall be calculated on the last day of each
calendar month and shall be payable in arrears (A) on the first day of each
calendar month, commencing on the first such day following the making of such
Loan, (B) upon the payment or prepayment thereof in full or in part, and (C) if
not theretofore paid in full, at maturity (whether by acceleration or otherwise)
of such Loan.
(ii) Interest accrued on the principal balance of all other Obligations
shall be calculated on the last day of each calendar month and shall be payable
in arrears (A) on the first day of each calendar month, commencing on the first
such day following the incurrence of such Obligation, (B) upon repayment thereof
in full or in part, and (C) if not theretofore paid in full, at the time such
other Obligation becomes due and payable (whether by acceleration or otherwise).
(c) Conversion or Continuation. (i) The Borrower shall have the option
(A) to convert at any time all or any part of outstanding Base Rate Loans to
Eurodollar Rate Loans; (B) to convert all or any part of outstanding Eurodollar
Rate Loans having Eurodollar Interest Periods which expire on the same date to
Base Rate Loans on such expiration date; or (C) to continue all or any part of
outstanding Eurodollar Rate Loans having Eurodollar Interest Periods which
expire on the same date as Eurodollar Rate Loans, and the succeeding Eurodollar
Interest Period of such continued Loans shall commence on such expiration date;
provided, however, no such outstanding Loan may be continued as, or be converted
into, a Eurodollar Rate Loan (i) if the continuation of, or the conversion into,
would violate any of the provisions of Section 5.2 or (ii) if an Event of
Default has occurred and is continuing. Any conversion into or continuation of
Eurodollar Rate Loans under this Section 5.1(c) shall be in a minimum amount of
$3,000,000 and in integral multiples of $500,000 in excess of that amount,
except in the case of a conversion into or a continuation of an entire Borrowing
of Non Pro Rata Loans.
(ii) To convert or continue a Loan under Section 5.1(c)(i), the
Borrower shall deliver a Notice of Conversion/Continuation to the Administrative
Agent no later than 11:00 a.m. (New York time) at least three (3) Business Days
in advance of the proposed conversion/continuation date. A Notice of
Conversion/Continuation shall specify (A) the proposed conversion/continuation
date (which shall be a Business Day), (B) the principal amount of the Loan to be
converted/continued, (C) whether such Loan shall be converted and/or continued,
(D) in the case of a conversion to, or continuation of, a Eurodollar Rate Loan,
the requested Eurodollar Interest Period and (E) whether such loan is for the
account of the Borrower. Promptly after receipt of a Notice of
Conversion/Continuation under this Section 5.1(c)(ii), the Administrative Agent
shall notify each Lender by facsimile transmission, or other similar form of
transmission, of the proposed conversion/continuation. Any Notice of
Conversion/Continuation for conversion to, or continuation of, a Loan (or
telephonic notice in lieu thereof) given pursuant to this Section 5.1(c)(ii)
shall be irrevocable, and the Borrower shall be bound to convert or continue in
accordance therewith. In the event no Notice of Conversion/Continuation is
delivered as and when specified in this Section 5.1(c)(ii) with respect to
outstanding Eurodollar Rate Loans, upon the expiration of the Eurodollar
Interest Period applicable thereto, such Loans shall automatically be converted
to a Base Rate Loan.
(d) Default Interest. Notwithstanding the rates of interest specified
in Section 5.1(a) or elsewhere in this Agreement, effective immediately upon the
occurrence of an Event of Default, and for as long thereafter as such Event of
Default shall be continuing, the principal balance of all Loans and other
Obligations shall bear interest at a rate equal to (A) in the case of any
Eurodollar Rate Loans outstanding as of the date of occurrence of any Event of
Default, the sum of (x) the applicable Eurodollar Rate, plus (y) six percent
(6.0%) per annum, and (B) in the case of any Base Rate Loan (including any
Eurodollar Loan that is converted to a Base Rate Loan at maturity) the sum of
(x) the Base Rate, as in effect from time to time as interest accrues, plus (y)
five percent (5.0%) per annum.
(e) Computation of Interest. Interest on all Obligations shall be
computed on the basis of the actual number of days elapsed in the period during
which interest accrues and a year of 360 days. In computing interest on any
Loan, the date of the making of the Loan or the first day of a Eurodollar
Interest Period, as the case may be, shall be included and the date of payment
or the expiration date of a Eurodollar Interest Period, as the case may be,
shall be excluded; provided, however, if a Loan is repaid on the same day on
which it is made, one (1) day's interest shall be paid on such Loan.
(f) Eurodollar Rate Information. Upon the request of the Borrower, the
Administrative Agent shall promptly provide to the Borrower, as the case may be,
such information with respect to the applicable Eurodollar Rate as may be so
requested.
5.2. Special Provisions Governing Eurodollar Rate Loans.
(a) Amount of Eurodollar Rate Loans. Each Eurodollar Rate Loan shall be
in a minimum principal amount of $3,000,000 and in integral multiples of
$500,000 in excess of that amount.
(b) Determination of Eurodollar Interest Period. By giving notice as
set forth in Section 2.1(b) (with respect to a Borrowing of Eurodollar Rate
Loans), or Section 5.1(c) (with respect to a conversion into or continuation of
Eurodollar Rate Loans), the Borrower shall have the option, subject to the other
provisions of this Section 5.2, to select an interest period (each, a
"Eurodollar Interest Period") to apply to the Loans described in such notice,
subject to the following provisions:
(i) The Borrower may only select, as to a particular Borrowing of
Eurodollar Rate Loans, a Eurodollar Interest Period of one, two, three or
six months in duration;
(ii) Intentionally Omitted;
(iii) In the case of immediately successive Eurodollar Interest
Periods applicable to a Borrowing of Eurodollar Rate Loans, each successive
Eurodollar Interest Period shall commence on the day on which the next
preceding Eurodollar Interest Period expires;
(iv) If any Eurodollar Interest Period would otherwise expire on a day
which is not a Business Day, such Eurodollar Interest Period shall be
extended to expire on the next succeeding Business Day if the next
succeeding Business Day occurs in the same calendar month, and if there
will be no succeeding Business Day in such calendar month, the Eurodollar
Interest Period shall expire on the immediately preceding Business Day;
(v) The Borrower may not select a Eurodollar Interest Period as to any
Loan if such Eurodollar Interest Period terminates later than the
Termination Date;
(vi) The Borrower may not select a Eurodollar Interest Period with
respect to any portion of principal of a Loan which extends beyond a date
on which the Borrower is required to make a scheduled payment of such
portion of principal of which the Borrower is aware on the date of such
request, in the case of a payment pursuant to Section 4.1(d) hereof; and
(vii) There shall be no more than ten (10) Eurodollar Interest Periods
in effect at any one time with respect to Eurodollar Rate Loans.
(c) Determination of Eurodollar Interest Rate. As soon as practicable
on the second Business Day prior to the first day of each Eurodollar Interest
Period (the "Eurodollar Interest Rate Determination Date"), the Administrative
Agent shall determine (pursuant to the procedures set forth in the definition of
"Eurodollar Rate") the interest rate which shall apply to the Eurodollar Rate
Loans for which an interest rate is then being determined for the applicable
Eurodollar Interest Period and shall promptly give notice thereof (in writing or
by telephone or by facsimile confirmed in writing) to the Borrower and to each
Lender. The Administrative Agent's determination shall be presumed to be
correct, absent manifest error, and shall be binding upon the Borrower.
(d) Interest Rate Unascertainable, Inadequate or Unfair. In the event
that at least one (1) Business Day before the Eurodollar Interest Rate
Determination Date:
(i) the Administrative Agent is advised by the Reference Bank that
deposits in Dollars (in the applicable amounts) are not being offered by
the Reference Bank in the London interbank market for such Eurodollar
Interest Period; or
(ii) the Administrative Agent determines that adequate and fair means
do not exist for ascertaining the applicable interest rates by reference to
which the Eurodollar Rate then being determined is to be fixed; or
(iii) the Requisite Lenders advise the Administrative Agent that the
Eurodollar Rate for Eurodollar Rate Loans comprising such Borrowing will
not adequately reflect the cost to such Requisite Lenders of obtaining
funds in Dollars in the London interbank market in the amount substantially
equal to such Lenders' Eurodollar Rate Loans in Dollars and for a period
equal to such Eurodollar Interest Period;
then the Administrative Agent shall forthwith give notice thereof to the
Borrower, whereupon (until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist) the right of
the Borrower to elect to have Loans bear interest based upon the Eurodollar Rate
shall be suspended and each outstanding Eurodollar Rate Loan shall be converted
into a Base Rate Loan on the last day of the then current Eurodollar Interest
Period therefor, notwithstanding any prior election by the Borrower to the
contrary.
(e) Illegality. (i) If at any time any Lender determines (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties) that the making or continuation of any Eurodollar Rate Loan
has become unlawful or impermissible by compliance by that Lender with any law,
governmental rule, regulation or order of any Governmental Authority (whether or
not having the force of law and whether or not failure to comply therewith would
be unlawful or would result in costs or penalties), then, and in any such event,
such Lender may give notice of that determination, in writing, to the Borrower
and the Administrative Agent, and the Administrative Agent shall promptly
transmit the notice to each other Lender.
(ii)When notice is given by a Lender under Section 5.2(e)(i), (A) the
Borrower's right to request from such Lender and such Lender's obligation, if
any, to make Eurodollar Rate Loans to the Borrower shall be immediately
suspended, and such Lender shall make a Base Rate Loan as part of any requested
Borrowing of Eurodollar Rate Loans and (B) if the affected Eurodollar Rate Loan
or Loans are then outstanding, the Borrower shall immediately, or if permitted
by applicable law, no later than the date permitted thereby, upon at least one
(1) Business Day's prior written notice to the Administrative Agent and the
affected Lender, convert each such Loan into a Base Rate Loan.
(iii) If at any time after a Lender gives notice under Section
5.2(e)(i) such Lender determines that it may lawfully make Eurodollar Rate
Loans, such Lender shall promptly give notice of that determination, in writing,
to the Borrower and the Administrative Agent, and the Administrative Agent shall
promptly transmit the notice to each other Lender. The Borrower's right to
request, and such Lender's obligation, if any, to make Eurodollar Rate Loans to
the Borrower shall thereupon be restored.
(f) Compensation. In addition to all amounts required to be paid by the
Borrower pursuant to Section 5.1 and Article XIII, the Borrower shall compensate
each Lender, upon demand, for all losses, expenses and liabilities (including,
without limitation, any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund or
maintain such Lender's Eurodollar Rate Loans to the Borrower but excluding any
loss of Applicable Margin on the relevant Loans) which that Lender may sustain
(i) if for any reason a Borrowing, conversion into or continuation of Eurodollar
Rate Loans does not occur on a date specified therefor in a Notice of Borrowing
or a Notice of Conversion/Continuation given by the Borrower or in a telephonic
request by it for borrowing or conversion/continuation or a successive
Eurodollar Interest Period does not commence after notice therefor is given
pursuant to Section 5.1(c), other than pursuant to Sections 5.2(d) or (e), or
(ii) if for any reason any Eurodollar Rate Loan is prepaid (other than pursuant
to Section 4.1(d) or Section 5.2(d) or (e)) on a date which is not the last day
of the applicable Eurodollar Interest Period or (iii) as a consequence of any
failure by the Borrower to repay a Eurodollar Rate Loan when required by the
terms of this Agreement. The Lender making demand for such compensation shall
deliver to the Borrower concurrently with such demand a written statement in
reasonable detail as to such losses, expenses and liabilities, and this
statement shall be conclusive as to the amount of compensation due to that
Lender, absent manifest error.
(g) Booking of Eurodollar Rate Loans. Any Lender may make, carry or
transfer Eurodollar Rate Loans at, to, or for the account of, its Eurodollar
Lending Office or Eurodollar Affiliate or its other offices or Affiliates. No
Lender shall be entitled, however, to receive any greater amount under Sections
4.2 or 5.2(f) or Article XIII as a result of the transfer of any such Eurodollar
Rate Loan to any office (other than such Eurodollar Lending Office) or any
Affiliate (other than such Eurodollar Affiliate) than such Lender would have
been entitled to receive immediately prior thereto, unless (i) the transfer
occurred at a time when circumstances giving rise to the claim for such greater
amount did not exist and (ii) such claim would have arisen even if such transfer
had not occurred.
(h) Affiliates Not Obligated. No Eurodollar Affiliate or other
Affiliate of any Lender shall be deemed a party to this Agreement or shall have
any liability or obligation under this Agreement.
(i) Adjusted Eurodollar Rate. Any failure by any Lender to take into
account the Eurodollar Reserve Percentage when calculating interest due on
Eurodollar Rate Loans shall not constitute, whether by course of dealing or
otherwise, a waiver by such Lender of its right to collect such amount for any
future period.
(j) Application of Mandatory Prepayments. The principal amount of any
mandatory prepayment pursuant to Section 4.1(d) hereof, shall be applied, first,
to the outstanding Base Rate Loans and then, to the outstanding Eurodollar Rate
Loans. The Administrative Agent shall hold such principal amounts allocated for
prepayment of Eurodollar Rate Loans until the end of the applicable Eurodollar
Interest Period(s) and, during the interim period, shall invest said sums in
Cash Equivalents. Interest earned thereon shall be forwarded to the Borrower
upon the payment of the Eurodollar Rate Loans at the end of said Eurodollar
Interest Period.
ARTICLE VI
CONDITIONS TO LOANS
6.1. Conditions Precedent to the Loans. The obligation of each Lender
on the Closing Date to make any Loan requested to be made by it, shall be
subject to the satisfaction of all of the following conditions precedent:
(a) Documents. The Administrative Agent shall have received on or
before the Closing Date all of the following:
(i) this Agreement, the Notes, and, to the extent not otherwise
specifically referenced in this Section 6.1(a), all other Loan Documents
and agreements, documents and instruments described in the List of Closing
Documents attached hereto as EXHIBIT E and made a part hereof, each duly
executed, and in form and substance satisfactory to the Agents; without
limiting the foregoing, the Borrower hereby directs its counsel, Brown &
Wood LLP to prepare and deliver to the Agents, the Lenders, and Skadden,
Arps, Slate, Meagher & Flom LLP the legal opinions referred to in such List
of Closing Documents; and
(ii) such additional documentation as the Agents may reasonably
request.
(b) No Legal Impediments. No law, regulation, order, judgment or decree
of any Governmental Authority shall, and the Administrative Agent shall not have
received any notice that litigation is pending or threatened which is likely to
(i) enjoin, prohibit or restrain the making of the Loans on the Closing Date or
(ii) impose or result in the imposition of a Material Adverse Effect.
(c) No Change in Condition. No change in the business, assets,
management, operations, financial condition or prospects of the Borrower or any
of its Properties shall have occurred since September 30, 1999 which change, in
the judgment of the Administrative Agent, will have a Material Adverse Effect.
(d) Interim Liabilities and Equity. Except as disclosed to the Lenders,
since September 30, 1999, neither the Borrower nor the Company shall have (i)
entered into any (as determined in good faith by the Administrative Agent)
commitment or transaction, including, without limitation, transactions for
borrowings and capital expenditures, which are not in the ordinary course of the
Borrower's business, (ii) declared or paid any dividends or other distributions
other than in the ordinary course of business, (iii) established compensation or
employee benefit plans, or (iv) redeemed or issued any equity Securities, other
than those described on SCHEDULE 6.1(D) hereto.
(e) No Loss of Material Agreements and Licenses. Since September 30,
1999, no agreement or license relating to the business, operations or employee
relations of the Borrower or any of its Real Properties shall have been
terminated, modified, revoked, breached or declared to be in default, the
termination, modification, revocation, breach or default under which, in the
reasonable judgment of the Administrative Agent, would result in a Material
Adverse Effect.
(f) No Market Changes. Since the Closing Date no material adverse
change shall have occurred in the conditions in the capital markets.
(g) No Default. No Event of Default or Potential Event of Default shall
have occurred and be continuing or would result from the making of the Loans.
(h) Representations and Warranties. All of the representations and
warranties contained in Section 7.1 and in any of the other Loan Documents shall
be true and correct in all material respects on and as of the Closing Date.
(i) Intentionally Omitted.
(j) Fees and Expenses Paid. There shall have been paid to the
Administrative Agent, for the accounts of the Agents and the other Lenders, as
applicable, all fees due and payable on or before the Closing Date and all
expenses due and payable on or before the Closing Date, including, without
limitation, reasonable attorneys' fees and expenses, and other costs and
expenses incurred in connection with the Loan Documents.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of the Borrower. In order to induce
the Lenders to enter into this Agreement and to make the Loans and the other
financial accommodations to the Borrower, the Borrower hereby represents and
warrants to each Lender that the following statements are true, correct and
complete:
(a) Organization; Powers. (i) The Borrower (A) is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware, (B) is duly qualified to do business and is in good standing
under the laws of each jurisdiction in which failure to be so qualified and in
good standing will have a Material Adverse Effect, (C) has all requisite power
and authority to own, operate and encumber its Property and to conduct its
business as presently conducted and as proposed to be conducted in connection
with and following the consummation of the transactions contemplated by this
Agreement, and (D) is a partnership for federal income tax purposes.
(ii) The Company (A) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Maryland (B) is duly
authorized and qualified to do business and is in good standing under the laws
of each jurisdiction in which failure to be so qualified and in good standing
will have a Material Adverse Effect, and (C) has all requisite corporate power
and authority to own, operate and encumber its Property and to conduct its
business as presently conducted.
(iii) True, correct and complete copies of the Organizational Documents
of the Borrower and the Company identified on SCHEDULE 7.1-A have been delivered
to the Administrative Agent, each of which is in full force and effect, has not
been modified or amended except to the extent set forth indicated therein or as
otherwise permitted hereby and, to the best of the Borrower's knowledge, there
are no defaults under such Organizational Documents and no events which, with
the passage of time or giving of notice or both, would constitute a default
under such Organizational Documents. Borrower shall update SCHEDULE 7.1-A from
time to time in order to keep said Schedule true and correct.
(iv) Neither the Borrower nor the Company are "foreign persons" within
the meaning of Section 1445 of the Internal Revenue Code.
(b) Authority. (i) The Company has the requisite power and authority to
execute and deliver this Agreement on behalf of the Borrower and each of the
other Loan Documents which are required to be executed on behalf of the Borrower
as required by this Agreement. The Company is the Person who has executed this
Agreement and such other Loan Documents on behalf of the Borrower and is the
sole general partner of the Borrower.
(ii) The execution, delivery and performance of each of the Loan
Documents which must be executed in connection with this Agreement by the
Borrower and to which the Borrower is a party and the consummation of the
transactions contemplated thereby are within the Borrower's partnership powers,
have been duly authorized by all necessary partnership action (and, in the case
of the Company acting on behalf of the Borrower in connection therewith, all
necessary corporate action of the Company) and such authorization has not been
rescinded. No other partnership or corporate action or proceedings on the part
of the Borrower or the Company is necessary to consummate such transactions.
(iii) Each of the Loan Documents to which the Borrower is a party has
been duly executed and delivered on behalf of the Borrower and constitutes the
Borrower's legal, valid and binding obligation, enforceable against the Borrower
in accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally or by general principles of equity regardless of
whether enforcement is considered in a proceeding at law or in equity. Each of
the Loan Documents to which Borrower is a party is in full force and effect and
all the terms, provisions, agreements and conditions set forth therein and
required to be performed or complied with by the Company, the Borrower and the
Borrower's Subsidiaries on or before the Closing Date have been performed or
complied with, and no Potential Event of Default or Event of Default exists
hereunder.
(c) Subsidiaries; Ownership of Capital Stock and Partnership Interests.
(i) SCHEDULE 7.1-C (A) contains a diagram indicating the corporate structure of
the Company, the Borrower, and any other Person in which the Company, the
Borrower holds a direct or indirect partnership, joint venture or other equity
interest indicating the nature of such interest with respect to each Person
included in such diagram; and (B) accurately sets forth (1) the correct legal
name of such Person, the jurisdiction of its incorporation or organization and
the jurisdictions in which it is qualified to transact business as a foreign
corporation, or otherwise, and (2) the authorized, issued and outstanding shares
or interests of each class of equity Securities of the Company, the Borrower and
the Subsidiaries of the Borrower, and (3) the ownership interest of the
Borrower, the Company and the Subsidiaries of the Borrower in all Minority
Holdings. None of such issued and outstanding Securities is subject to any
vesting, redemption, or repurchase agreement, and there are no warrants or
options (other than Permitted Securities Options) outstanding with respect to
such Securities, except as noted on SCHEDULE 7.1-C. The outstanding Capital
Stock of the Company is duly authorized, validly issued, fully paid and
nonassessable and the outstanding Securities of the Borrower and their
Subsidiaries are duly authorized and validly issued. Attached hereto as part of
SCHEDULE 7.1-C is a true, accurate and complete copy of the Borrower Partnership
Agreement as in effect on the Closing Date and such Partnership Agreement has
not been amended, supplemented, replaced, restated or otherwise modified in any
respect since the Closing Date, except as otherwise permitted hereby. Borrower
shall update SCHEDULE 7.1-C as of the first day of each fiscal quarter, and
shall deliver the same together with the Quarterly Compliance Certificates, to
the extent required, in order to keep said Schedule true and correct.
(ii) Except where failure would not have a Material Adverse Effect on
the Borrower and each of its Subsidiary: (A) is a corporation or partnership, as
indicated on SCHEDULE 7.1-C, duly organized or formed, validly existing and, if
applicable, in good standing under the laws of the jurisdiction of its
organization, (B) is duly qualified to do business and, if applicable, is in
good standing under the laws of each jurisdiction in which failure to be so
qualified and in good standing would have a Material Adverse Effect, and (C) has
all requisite power and authority to own, operate and encumber its Property and
to conduct its business as presently conducted and as proposed to be conducted
hereafter.
(d) No Conflict. The execution, delivery and performance of each of the
Loan Documents to which the Borrower is a party, do not and will not (i)
conflict with the Organizational Documents of the Borrower or of the Company, as
the case may be, (ii) conflict with, result in a breach of or constitute (with
or without notice or lapse of time or both) a default under any Requirement of
Law or material Contractual Obligation of the Borrower or the Company, as the
case may be, or require termination of any such material Contractual Obligation
which would subject the Administrative Agent or any of the other Lenders to any
liability, (iii) result in or require the creation or imposition of any Lien
whatsoever upon any of the Property or assets of the Borrower or the Company, as
the case may be, or (iv) require any approval of shareholders of the Company
(other than such approvals that have been obtained and are in full force and
effect).
(e) Governmental Consents. The execution, delivery and performance of
each of the Loan Documents to which the Borrower is a party do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by any Governmental Authority, except filings, consents or
notices which have been made, obtained or given.
(f) Governmental Regulation. Neither the Borrower nor the Company is
subject to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, or the Investment Company Act of
1940, or any other federal or state statute or regulation which limits its
ability to incur indebtedness as contemplated by this Agreement.
(g) Financial Position. Complete and accurate copies of the following
financial statements and materials have been delivered to the Administrative
Agent: annual unaudited financial statements of the Borrower and annual audited
financial statements of the Company for the fiscal year ended December 31, 1997.
All annual financial statements of the Borrower shall be accompanied by an
Officer's Certificate of the Borrower, and shall be certified by the Chief
Financial Officer of the Borrower as fairly presenting in all material respects
the financial position of the Borrower. All financial statements included in
such materials were prepared in all material respects in conformity with GAAP,
except as otherwise noted therein, and fairly present in all material respects
the respective consolidated financial positions, and the consolidated results of
operations and cash flows for each of the periods covered thereby of the
Borrower and the Company as at the respective dates thereof. Neither the
Borrower or the Company has any Contingent Obligation, contingent liability or
liability for any taxes, long-term leases or commitments, not reflected in its
financial statements delivered to the Administrative Agent on or prior to the
Closing Date or otherwise disclosed to the Administrative Agent and the Lenders
in writing on or prior to the Closing Date, which will have a Material Adverse
Effect.
(h) Indebtedness. SCHEDULE 7.1-H sets forth, as of September 30, 1999,
all Indebtedness for borrowed money of each of the Borrower, the Company and
their respective Subsidiaries and, except as set forth on SCHEDULE 7.1-H, there
are no defaults in the payment of principal or interest on any such Indebtedness
and no payments thereunder have been deferred or extended beyond their stated
maturity and there has been no material change in the type or amount of such
Indebtedness (except for the repayment of certain Indebtedness) since September
30, 1999.
(i) Litigation; Adverse Effects. Except as set forth in SCHEDULE 7.1-I,
as of the Closing Date, there is no action, suit, proceeding, investigation or
arbitration before or by any Governmental Authority or private arbitrator
pending or, to the knowledge of the Borrower, threatened against the Company,
the Borrower or any of their respective Subsidiaries, or any Property of any of
them (i) challenging the validity or the enforceability of any of the Loan
Documents, (ii) which could be reasonably be expected to result in any Material
Adverse Effect, or (iii) under the Racketeering Influenced and Corrupt
Organizations Act or any similar federal or state statute where such Person is a
defendant in a criminal indictment that provides for the forfeiture of assets to
any Governmental Authority as a potential criminal penalty. There is no material
loss contingency within the meaning of GAAP which has not been reflected in the
consolidated financial statements of the Company and the Borrower. None of the
Company, the Borrower nor any Subsidiary of the Borrower is (A) in violation of
any applicable Requirements of Law which violation will have or is reasonably
likely to have a Material Adverse Effect, or (B) in default with respect to any
final judgment, writ, injunction, restraining order or order of any nature,
decree, rule or regulation of any court or Governmental Authority which will
have a Material Adverse Effect.
(j) No Material Adverse Effect. Since September 30, 1999, there has
occurred no event which has had a Material Adverse Effect.
(k) Intentionally Omitted.
(l) Payment of Taxes. All material tax returns, reports and similar
statements or filings of the Company, the Borrower and their respective
Subsidiaries required to be filed have been timely filed (or extensions to file
have been obtained), and, except for Customary Permitted Liens, all material
taxes, assessments, fees and other charges of Governmental Authorities thereupon
and upon or relating to their respective Properties, assets, receipts, sales,
use, payroll, employment, income, licenses and franchises which are shown in
such returns or reports to be due and payable have been paid, except to the
extent (i) such taxes, assessments, fees and other charges of Governmental
Authorities are being contested in good faith by an appropriate proceeding
diligently pursued as permitted by the terms of Section 9.4 and (ii) such taxes,
assessments, fees and other charges of Governmental Authorities pertain to
Property of the Borrower or any of its Subsidiaries and the non-payment of the
amounts thereof would not, individually or in the aggregate, result in a
Material Adverse Effect. All other material taxes (including, without
limitation, real estate taxes), assessments, fees and other governmental charges
upon or relating to the respective Properties of the Borrower and its
Subsidiaries which are due and payable have been paid, except for Customary
Permitted Liens and except to the extent described in clauses (i) and (ii)
hereinabove. The Borrower has no knowledge of any proposed tax assessment
against the Borrower, any of its Subsidiaries, or any of the Projects that will
have or is reasonably likely to have a Material Adverse Effect.
(m) Performance. To the knowledge of the Borrower, neither the Company,
the Borrower nor any of their Subsidiaries has received any written notice or
citation, nor has actual knowledge, that (i) it is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any Contractual Obligation applicable to it, or (ii) any
condition exists which, with the giving of notice or the lapse of time or both,
would constitute a default with respect to any such Contractual Obligation, in
each case, except where such default or defaults, if any, will not have a
Material Adverse Effect.
(n) Disclosure. The representations and warranties of the Borrower
contained in the Loan Documents, and all certificates and other documents
delivered to the Administrative Agent pursuant to the terms thereof, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained herein or therein, in light
of the circumstances under which they were made, taken as a whole, not
misleading. Notwithstanding the foregoing, the Lenders acknowledge that the
Borrower shall not have liability under this clause (n) with respect to its
projections of future events or for any financial projections.
(o) Requirements of Law. The Borrower and each of its Subsidiaries is
in compliance with all Requirements of Law applicable to it and its respective
businesses and Properties, in each case where the failure to so comply
individually or in the aggregate will have a Material Adverse Effect.
(p) Environmental Matters.
(i) Except as disclosed on SCHEDULE 7.1-P (the Borrower shall
update SCHEDULE 7.1-P as of the first day of each fiscal quarter, and deliver
the same together with the Quarterly Compliance Certificates, to the extent
required, in order to keep said Schedule true and correct):
(A) the operations of the Borrower, each of its Subsidiaries,
and its Properties comply with all applicable Environmental, Health or Safety
Requirements of Law, except to the extent any failure to do so would not have a
Material Adverse Effect;
(B) the Borrower and each of its Subsidiaries have obtained
all material environmental, health and safety Permits necessary for their
respective operations, and all such Permits are in good standing and the holder
of each such Permit is currently in compliance with all terms and conditions of
such Permits, except to the extent any failure to do so would not have a
Material Adverse Effect;
(C) to the knowledge of the Borrower, neither the Borrower
nor any of its Subsidiaries or any of its present or past Property or operations
are subject to or are the subject of any investigation of any Governmental
Authority, judicial or administrative proceeding, order, judgment or decree,
negotiations, agreement or settlement respecting (I) any Remedial Action, (II)
any Claims or Liabilities and Costs arising from the Release or threatened
Release of a Contaminant into the environment, or (III) any violation of or
liability under any Environmental, Health or Safety Requirement of Law, except
to the extent none of the foregoing would have a Material Adverse Effect;
(D) neither the Borrower nor any of its Subsidiaries has
filed any notice under any applicable Requirement of Law (I) reporting a Release
of a Contaminant; (II) indicating past or present treatment, storage or disposal
of a hazardous waste, as that term is defined under 40 C.F.R. Part 261 or any
state equivalent; or (III) reporting a violation of any applicable
Environmental, Health or Safety Requirement of Law with respect to any of the
foregoing, the substance of which would have a Material Adverse Effect;
(E) none of the Borrower's or any of its Subsidiaries'
present or past Property is listed or, to the knowledge of the Borrower,
proposed for listing on the National Priorities List ("NPL") pursuant to CERCLA
or on the Comprehensive Environmental Response Compensation Liability
Information System List ("CERCLIS") or any similar state list of sites requiring
Remedial Action;
(F) to the knowledge of the Borrower, neither the Borrower
nor any of its Subsidiaries has sent or directly arranged for the transport of
any waste to any site listed or proposed for listing on the NPL, CERCLIS or any
similar state list;
(G) to the best of Borrower's knowledge, there is not now,
and to Borrower's knowledge there has never been on or in any Project, (I) any
treatment, recycling, storage away from the site of generation or disposal of
any hazardous waste, as that term is defined under 40 C.F.R. Part 261 or any
state equivalent, (II) any solid waste management facility, (III) any
underground storage tanks the presence or use of which is in violation of
applicable Environmental, Health or Safety Requirements of Law, (IV) any
asbestos-containing material which, in its present state, such Person has any
reason to believe could subject such Person or its Property to Liabilities and
Costs arising out of or relating to environmental, health or safety matters that
would result in a Material Adverse Effect; or (V) any polychlorinated biphenyls
(PCB) used in hydraulic oils, electrical transformers or other Equipment, which,
in any such case, would subject the Borrower or its Property to Liabilities and
Costs arising out of or relating to environmental, health or safety matters that
would result in a Material Adverse Effect;
(H) to the knowledge of the Borrower, neither the Borrower
nor any of its Subsidiaries has received any notice or Claim to the effect that
any of such Persons is or may be liable to any Person as a result of the Release
or threatened Release of a Contaminant into the environment which would result
in a Material Adverse Effect;
(I) neither the Borrower nor any of its Subsidiaries has any
contingent liability in connection with any Release or threatened Release of any
Contaminants into the environment which will result in a Material Adverse
Effect;
(J) no Environmental Lien has attached to any Property of the
Borrower or any Subsidiary (other than those otherwise permitted hereunder) or
which do not constitute an Event of Default; and
(K) no Property of the Borrower or any Subsidiary is subject
to any Environmental Property Transfer Act, or to the extent such acts are
applicable to any such Property, the Borrower and/or such Subsidiary whose
Property is subject thereto has complied in all material respects with the
requirements of such acts.
(q) ERISA. Neither the Borrower nor any ERISA Affiliate maintains or
contributes to any Benefit Plan or Multiemployer Plan other than those listed on
SCHEDULE 7.1-Q hereto. Each Plan which is intended to be qualified under Section
401(a) of the Internal Revenue Code as currently in effect has been determined
by the IRS to be so qualified, and each trust related to any such Plan has been
determined to be exempt from federal income tax under Section 501(a) of the
Internal Revenue Code as currently in effect. Except as disclosed in SCHEDULE
7.1-Q, neither the Borrower nor any of its Subsidiaries maintains or contributes
to any employee welfare benefit plan within the meaning of Section 3(1) of ERISA
that provides benefits to employees after termination of employment other than
as required by Section 601 of ERISA. The Borrower and each of its Subsidiaries
is in compliance in all material respects with the responsibilities, obligations
and duties imposed on it by ERISA, the Internal Revenue Code and regulations
promulgated thereunder with respect to all Plans. No Benefit Plan has incurred
any accumulated funding deficiency (as defined in Sections 302(a)(2) of ERISA
and 412(a) of the Internal Revenue Code) whether or not waived. Neither the
Borrower nor any ERISA Affiliate nor any fiduciary of any Plan which is not a
Multiemployer Plan (i) has engaged in a nonexempt prohibited transaction
described in Sections 406 of ERISA or 4975 of the Internal Revenue Code or (ii)
has taken or failed to take any action which would constitute or result in a
Termination Event. Neither the Borrower nor any ERISA Affiliate is subject to
any liability under Sections 4063, 4064, or 4204 of ERISA which would have a
Material Adverse Effect. Neither the Borrower nor any ERISA Affiliate is subject
to any liability under Sections 4069 or 4212(c) of ERISA or has incurred any
liability to the PBGC which remains outstanding other than the payment of
premiums, and there are no premium payments which have become due which are
unpaid. Schedule B to the most recent annual report filed with the IRS with
respect to each Benefit Plan has been furnished to the Administrative Agent and
is complete and accurate in all material respects. Since the date of each such
Schedule B, there has been no material adverse change in the funding status or
financial condition of the Benefit Plan relating to such Schedule B. Neither the
Borrower nor any ERISA Affiliate has (i) failed to make a required contribution
or payment to a Multiemployer Plan or (ii) made a complete or partial withdrawal
under Sections 4203 or 4205 of ERISA from a Multiemployer Plan which would have
a Material Adverse Effect. Neither the Borrower, nor any ERISA Affiliate has
failed to make a required installment or any other required payment under
Section 412 of the Internal Revenue Code on or before the due date for such
installment or other payment. Neither the Borrower nor any ERISA Affiliate is
required to provide security to a Benefit Plan under Section 401(a)(29) of the
Internal Revenue Code due to a Benefit Plan amendment that results in an
increase in current liability for the plan year. Except as disclosed on SCHEDULE
7.1-Q, which shall be updated by Borrower as of the first day of each fiscal
quarter, to the extent required, neither the Borrower nor any of its
Subsidiaries has, by reason of the transactions contemplated hereby, any
obligation to make any payment to any employee pursuant to any Plan or existing
contract or arrangement.
(r) Securities Activities. The Borrower is not engaged in the business
of extending credit for the purpose of purchasing or carrying Margin Stock
except as described on Schedule 7.1(r).
(s) Solvency. After giving effect to the Loans to be made on the
Closing Date or such other date as Loans requested hereunder are made, and the
disbursement of the proceeds of such Loans pursuant to the Borrower's
instructions, the Borrower is Solvent.
(t) Insurance. SCHEDULE 7.1-T accurately sets forth as of the Closing
Date all insurance policies and programs currently in effect with respect to the
respective Property and assets and business of the Borrower and its
Subsidiaries, specifying for each such policy and program, (i) the amount
thereof, (ii) the risks insured against thereby, (iii) the name of the insurer
and each insured party thereunder, (iv) the policy or other identification
number thereof, and (v) the expiration date thereof. The Borrower has delivered
to the Administrative Agent copies of all insurance policies set forth on
SCHEDULE 7.1-T. Such insurance policies and programs are currently in full force
and effect, in compliance with the requirements of Section 9.5 hereof and,
together with payment by the insured of scheduled deductible payments, are, to
the knowledge of the Borrower, in amounts which should reasonably be expected to
be sufficient to cover the replacement value of the respective Property and
assets of the Borrower and/or its Subsidiaries. Borrower shall update SCHEDULE
7.1-T, which shall be updated by Borrower annually, to the extent required, in
order to keep said Schedule true and correct (or more frequently if an insurance
policy or program shall be terminated and/or replaced).
(u) REIT Status. The Company qualifies as a REIT under the Internal
Revenue Code.
(v) Ownership of Projects, Minority Holdings and Property. Ownership of
all wholly owned Projects, Minority Holdings and other Property of the
Consolidated Businesses is held by the Borrower and its Subsidiaries and is not
held directly by the Company.
(w) Year 2000 Compliance. The Borrower has completed a comprehensive
review and assessment of the Borrower's computer applications and has commenced
inquiry of the Borrower's key suppliers, vendors and customers with respect to
the "year 2000 problem" (that is, the risk that computer applications may not be
able to properly perform date sensitive functions after December 31, 1999) and,
based on that review and inquiry, the Borrower does not believe the year 2000
problem will result in a Material Adverse Effect.
ARTICLE VIII
REPORTING COVENANTS
The Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities pursuant to Section 14.3 not yet due), unless the
Requisite Lenders shall otherwise give prior written consent thereto:
8.1. Borrower Accounting Practices. The Borrower shall maintain, and
cause each of its consolidated Subsidiaries to maintain, a system of accounting
established and administered in accordance with sound business practices to
permit preparation of consolidated financial statements in conformity with GAAP.
8.2. Financial Reports. The Borrower shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the Lenders):
(a) Quarterly Reports.
(i) Borrower Quarterly Financial Reports. As soon as practicable, and
in any event within forty-five (45) days after the end of each fiscal quarter in
each Fiscal Year (other than the last fiscal quarter in each Fiscal Year), a
consolidated balance sheet of the Borrower and the related consolidated
statements of income and cash flow of the Borrower (to be prepared and delivered
quarterly in conjunction with the other reports delivered hereunder at the end
of each fiscal quarter) for each such fiscal quarter, and, in comparative form,
the corresponding figures for the corresponding periods of the previous Fiscal
Year, certified by an Authorized Financial Officer of the Borrower, as fairly
presenting in all material respects the consolidated financial position of the
Borrower as of the dates indicated and the results of their operations and cash
flow for the months indicated in accordance with GAAP, subject to normal
quarterly adjustments.
(ii) Company Quarterly Financial Reports. As soon as practicable, and
in any event within forty-five (45) days after the end of each fiscal quarter in
each Fiscal Year (other than the last fiscal quarter in each Fiscal Year), the
Financial Statements of the Company and its consolidated Subsidiaries on Form
10-Q as at the end of such period and a report setting forth in comparative form
the corresponding figures for the corresponding period of the previous Fiscal
Year, certified by an Authorized Financial Officer of the Company as fairly
presenting in all material respects the consolidated financial position of the
Company and its consolidated Subsidiaries as at the date indicated and the
results of their operations and cash flow for the period indicated in accordance
with GAAP, subject to normal adjustments.
(iii) Quarterly Compliance Certificates. Together with each delivery of
any quarterly report pursuant to paragraph (a)(i) of this Section 8.2, the
Borrower shall deliver Officer's Certificates of the Borrower and the Company
(the "Quarterly Compliance Certificates"), signed by the Borrower's and the
Company's respective Authorized Financial Officers representing and certifying
(1) that the Authorized Financial Officer signatory thereto has reviewed the
terms of the Loan Documents, and has made, or caused to be made under his/her
supervision, a review in reasonable detail of the consolidated financial
condition of the Company and its Consolidated Subsidiaries, for the fiscal
quarter covered by such reports, that such review has not disclosed the
existence during or at the end of such fiscal quarter, and that such officer
does not have knowledge of the existence as at the date of such Officer's
Certificate, of an Event of Default or Potential Event of Default or mandatory
prepayment event, or, if any such condition or event existed or exists, the
nature and period of existence thereof and what action the Company and/or the
Borrower or any of their Subsidiaries has taken, is taking and proposes to take
with respect thereto; (2) the calculations in the form of Exhibit G hereto for
the period then ended which demonstrate compliance with the covenants and
financial ratios set forth in Sections 9.9, 9.11, 10.2, 10.6, 10.7, 10.11, and
10.12 hereof and, when applicable, that no Event of Default described in Section
11.1 exists, (3) a schedule of the Borrower's outstanding Indebtedness,
including the amount, maturity, interest rate and amortization requirements, as
well as such other information regarding such Indebtedness as may be reasonably
requested by the Administrative Agent, (4) a schedule of Total Adjusted EBITDA,
and (5) a schedule of Adjusted Unencumbered NOI.
(b) Annual Reports.
(i) Borrower Financial Statements. As soon as practicable, and in any
event within ninety (90) days after the end of each Fiscal Year, the Financial
Statements of the Borrower and its Subsidiaries as at the end of such Fiscal
Year, accompanied by an Officer's Certificate of the Borrower, certified by the
Chief Financial Officer of the Borrower, that the Financial Statements fairly
present in all material respects the consolidated financial position of the
Borrower and its Subsidiaries as of the dates indicated and the results of their
operations and cash flow for the periods indicated in conformity with GAAP
consistently applied, and which Officer's Certificate shall explain any
inconsistencies between the Financial Statements of the Borrower and the
Financial Statements of the Company.
(ii) Company Financial Statements. As soon as practicable, and in any
event within ninety (90) days after the end of each Fiscal Year, (i) the
Financial Statements of the Company and its consolidated Subsidiaries on Form
10-K as at the end of such Fiscal Year and a report setting forth in comparative
form the corresponding figures from the consolidated Financial Statements of the
Company and its Subsidiaries for the prior Fiscal Year; (ii) a report with
respect thereto of Ernst & Young LLP or other independent certified public
accountants acceptable to the Administrative Agent (it being understood that any
"Big Six" certified public accountants are acceptable to the Administrative
Agent), which report shall be unqualified and shall state that such financial
statements fairly present the consolidated financial position of each of the
Company and its consolidated Subsidiaries as at the dates indicated and the
results of their operations and cash flow for the periods indicated in
conformity with GAAP (except for changes with which Ernst & Young LLP or any
such other independent certified public accountants, if applicable, shall concur
and which shall have been disclosed in the notes to the financial
statements)(which report shall be subject to the confidentiality limitations set
forth herein); and (iii) in the event that the report referred to in clause (ii)
above is qualified, a copy of the management letter or any similar report
delivered to the Company or to any officer or employee thereof by such
independent certified public accountants in connection with such financial
statements. The Administrative Agent and each Lender (through the Administrative
Agent) may, with the consent of the Company (which consent shall not be
unreasonably withheld), communicate directly with such accountants, with any
such communication to occur together with a representative of the Company, at
the expense of the Administrative Agent (or the Lender requesting such
communication), upon reasonable notice and at reasonable times during normal
business hours.
(iii) Annual Compliance Certificates. Together with each delivery of
any annual report pursuant to clauses (i) and (ii) of this Section 8.2(b), the
Borrower shall deliver Officer's Certificates of the Borrower and the Company
(the "Annual Compliance Certificates" and, collectively with the Quarterly
Compliance Certificates, the "Compliance Certificates"), signed by the
Borrower's and the Company's respective Authorized Financial Officers,
representing and certifying (1) that the officer signatory thereto has reviewed
the terms of the Loan Documents, and has made, or caused to be made under
his/her supervision, a review in reasonable detail of the consolidated financial
condition of the Company and its consolidated Subsidiaries, for the accounting
period covered by such reports, that such review has not disclosed the existence
at the end of such accounting period, and that such officer does not have
knowledge of the existence as at the date of such Officer's Certificate, of an
Event of Default or Potential Event of Default or mandatory prepayment event,
or, if any such condition or event existed or exists, the nature and period of
existence thereof and what action the Company and/or the Borrower or any of
their Subsidiaries has taken, is taking and proposes to take with respect
thereto; (2) the calculations in the form of Exhibit G hereto for the period
then ended which demonstrate compliance with the covenants and financial ratios
set forth in Sections 9.9, 9.11, 10.2, 10.6, 10.7, 10.11, and 10.12 hereof and,
when applicable, that no Event of Default described in Section 11.1 exists, (3)
a schedule of the Borrower's outstanding Indebtedness including the amount,
maturity, interest rate and amortization requirements, as well as such other
information regarding such Indebtedness as may be reasonably requested by the
Administrative Agent, (4) a schedule of Total Adjusted EBITDA and (5) a schedule
of Adjusted Unencumbered NOI.
(iv) Tenant Bankruptcy Reports. As soon as practicable, and in any
event within ninety (90) days after the end of each Fiscal Year, the Borrower
shall deliver a written report, in form reasonably satisfactory to the
Administrative Agent, of all bankruptcy proceedings filed by or against any
tenant of any of the Projects, which tenant occupies three and one half percent
(3.5%) or more of the gross leasable area in the Projects in the aggregate. The
Borrower shall deliver to the Administrative Agent and the Lenders, immediately
upon the Borrower's learning thereof, of any bankruptcy proceedings filed by or
against, or the cessation of business or operations of, any tenant of any of the
Projects which tenant occupies three and one half percent (3.5%) or more of the
gross leasable area in the Projects in the aggregate.
(v) Property Reports. Simultaneously with the delivery of the
Compliance Certificates, a rent roll.
8.3. Events of Default. Promptly upon the Borrower obtaining knowledge
(a) of any condition or event which constitutes an Event of Default or Potential
Event of Default; (b) that any Person has given any notice to the Borrower or
any Subsidiary of the Borrower or taken any other action with respect to a
claimed default or event or condition of the type referred to in Section
11.1(e); or (c) or of any condition or event which has a Material Adverse
Effect, the Borrower shall deliver to the Administrative Agent (with copies for
each of the Lenders) an Officer's Certificate specifying (i) the nature and
period of existence of any such claimed default, Event of Default, Potential
Event of Default, condition or event, (ii) the notice given or action taken by
such Person in connection therewith, and (iii) what action the Borrower has
taken, is taking and proposes to take with respect thereto.
8.4. Lawsuits. (i) Promptly upon the Borrower's obtaining knowledge of
the institution of, or written threat of, any action, suit, proceeding,
governmental investigation or arbitration against or affecting the Borrower or
any of its Subsidiaries not previously disclosed pursuant to Section 7.1(i),
which action, suit, proceeding, governmental investigation or arbitration
exposes, or in the case of multiple actions, suits, proceedings, governmental
investigations or arbitrations arising out of the same general allegations or
circumstances which expose, in the Borrower's reasonable judgment, the Borrower
or any of their Subsidiaries to liability in an amount aggregating $1,000,000 or
more and is not covered by the Borrower's or such Subsidiary's insurance, the
Borrower shall give written notice thereof to the Administrative Agent (with
copies for each of the Lenders) and provide such other information as may be
reasonably available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; (ii) as soon as practicable and in any event
within forty-five (45) days after the end of each fiscal quarter of the
Borrower, the Borrower shall provide a written quarterly report to the
Administrative Agent and the Lenders covering the institution of, or written
threat of, any action, suit, proceeding, governmental investigation or
arbitration in an amount equal to or in excess of $50,000,000 to the extent not
previously reported) against or affecting the Borrower or any of its
Subsidiaries or any Property of the Borrower or any of its Subsidiaries not
previously disclosed by the Borrower to the Administrative Agent and the
Lenders, and shall provide such other information at such time as may be
reasonably available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; and (iii) in addition to the requirements set
forth in clauses (i) and (ii) of this Section 8.4, the Borrower upon request of
the Administrative Agent or the Requisite Lenders shall promptly give written
notice of the status of any action, suit, proceeding, governmental investigation
or arbitration covered by a report delivered pursuant to clause (i) or (ii)
above and provide such other information as may be reasonably requested and
available to it to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters. Notwithstanding the foregoing, the Borrower
shall be not required to disclose any information which is subject to the
attorney-client privilege.
8.5. Insurance. As soon as practicable and in any event by January 31st
of each calendar year, the Borrower shall deliver to the Administrative Agent
(with copies for each of the Lenders) (i) a report in form and substance
reasonably satisfactory to the Administrative Agent outlining all insurance
coverage maintained as of the date of such report by the Borrower and its
Subsidiaries and the duration of such coverage and (ii) an Officer's Certificate
of signed by an Authorized Financial Officer of the Borrower certifying that all
premiums with respect to such coverage have been paid when due.
8.6. ERISA Notices. The Borrower shall deliver or cause to be delivered
to the Administrative Agent (with copies for each of the Lenders), at the
Borrower's expense, the following information and notices as soon as reasonably
possible, and in any event:
(a) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate knows or has reason to know that a Termination Event has
occurred, a written statement of an Authorized Financial Officer of the
Borrower describing such Termination Event and the action, if any, which
the Borrower or any ERISA Affiliate has taken, is taking or proposes to
take with respect thereto, and when known, any action taken or threatened
by the IRS, DOL or PBGC with respect thereto;
(b) within fifteen (15) Business Days after the Borrower knows or has
reason to know that a non-exempt prohibited transaction (as defined in
Sections 406 of ERISA and Section 4975 of the Internal Revenue Code) has
occurred with respect to the Borrower, any ERISA Affiliate or any Plan, a
statement of an Authorized Financial Officer of the Borrower describing
such transaction with respect to the Borrower any ERISA Affiliate or any
Plan and the action which the Borrower or any ERISA Affiliate has taken, is
taking or proposes to take with respect thereto;
(c) within fifteen (15) Business Days after the filing of the same
with the DOL, IRS or PBGC, copies of each annual report (Form 5500 series),
including Schedule B thereto, filed with respect to each Benefit Plan;
(d) within fifteen (15) Business Days after receipt by the Borrower or
any ERISA Affiliate of each actuarial report for any Benefit Plan or
Multiemployer Plan and each annual report for any Multiemployer Plan,
copies of each such report;
(e) within fifteen (15) Business Days after the filing of the same
with the IRS, a copy of each funding waiver request filed with respect to
any Benefit Plan and all written communications received by the Borrower or
any ERISA Affiliate with respect to such request;
(f) within fifteen (15) Business Days after the occurrence of any
material increase in the benefits of any existing Benefit Plan or
Multiemployer Plan or the establishment of any new Benefit Plan or the
commencement of contributions to any Benefit Plan or Multiemployer Plan to
which the Borrower or any ERISA Affiliate to which the Borrower or any
ERISA Affiliate was not previously contributing, notification of such
increase, establishment or commencement;
(g) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate receives notice of the PBGC's intention to terminate a Benefit
Plan or to have a trustee appointed to administer a Benefit Plan, copies of
each such notice;
(h) within fifteen (15) Business Days after the Borrower or any of its
Subsidiaries receives notice of any unfavorable determination letter from
the IRS regarding the qualification of a Plan under Section 401(a) of the
Internal Revenue Code, copies of each such letter to the extent any of the
foregoing would have a Material Adverse Effect;
(i) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate receives notice from a Multiemployer Plan regarding the
imposition of withdrawal liability, copies of each such notice;
(j) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate fails to make a required installment or any other required
payment under Section 412 of the Internal Revenue Code on or before the due
date for such installment or payment which failure has not been cured, a
notification of such failure; and
(k) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate knows or has reason to know (i) a Multiemployer Plan has been
terminated, (ii) the administrator or plan sponsor of a Multiemployer Plan
intends to terminate a Multiemployer Plan, or (iii) the PBGC has instituted
or has given written notice that it will institute proceedings under
Section 4042 of ERISA to terminate a Multiemployer Plan, notification of
such termination, intention to terminate, or institution of proceedings.
For purposes of this Section 8.6, the Borrower and any ERISA Affiliate shall be
deemed to know all facts known by the "Administrator" of any Plan of which the
Borrower or any ERISA Affiliate is the plan sponsor.
8.7. Environmental Notices. The Borrower shall notify the
Administrative Agent (with copies for each of the Lenders) in writing, promptly
upon any Officer of the Borrower responsible for the environmental matters at
any Property of the Borrower learning thereof, of any of the following (together
with any material documents and correspondence received or sent in connection
therewith):
(a) notice or claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of the Release
or threatened Release of any Contaminant into the environment, if such
liability would result in a Material Adverse Effect;
(b) notice that the Borrower or any of its Subsidiaries is subject to
investigation by any Governmental Authority evaluating whether any Remedial
Action is needed to respond to the Release or threatened Release of any
Contaminant into the environment which would have a Material Adverse
Effect;
(c) notice that any Property of the Borrower or any of its
Subsidiaries is subject to an Environmental Lien if the claim to which such
Environmental Lien relates would result in a Material Adverse Effect;
(d) notice of violation by the Borrower or any of its Subsidiaries of
any Environmental, Health or Safety Requirement of Law which violation
would have a Material Adverse Effect;
(e) commencement or written threat of any judicial or administrative
proceeding alleging a violation by the Borrower or any of its Subsidiaries
of any Environmental, Health or Safety Requirement of Law, which would
result in a Material Adverse Effect; or
(f) any proposed acquisition of stock, assets, real estate, or leasing
of Property by the Borrower or any of its Subsidiaries that would subject
the Borrower or any of its Subsidiaries to environmental, health or safety
Liabilities and Costs which would result in a Material Adverse Effect.
8.8. Labor Matters. The Borrower shall notify the Administrative Agent
(with copies for each of the Lenders) in writing, promptly upon the Borrower's
learning thereof, of any labor dispute to which the Borrower or any of its
Subsidiaries is reasonably expected to become a party (including, without
limitation, any strikes, lockouts or other disputes relating to any Property of
such Persons' and other facilities) which would result in a Material Adverse
Effect.
8.9. Notices of Asset Sales and/or Acquisitions. The Borrower shall
deliver to the Administrative Agent and the Lenders written notice of each of
the following not less than five (5) Business Days prior to the occurrence
thereof: (a) a sale, transfer or other disposition of assets, in a single
transaction or series of related transactions, (b) an acquisition of assets, in
a single transaction or series of related transactions within the two preceding
calendar quarter period, for consideration in excess of $50,000,000, and (c) the
grant of a Lien with respect to assets, in a single transaction or series of
related transactions. In addition, simultaneously with delivery of any such
notice, the Borrower shall deliver to the Administrative Agent a certificate of
an Authorized Officer certifying that Borrower is in compliance with this
Agreement and the other Loan Documents both on a historical basis and on a pro
forma basis, exclusive of the property sold, transferred and/or encumbered and
inclusive of the property to be acquired or the indebtedness to be incurred.
To the extent such proposed transaction would result in a failure to comply with
the financial covenants set forth herein, proceeds of such transaction (together
with such additional amounts as may be required), in an amount, as determined by
the Administrative Agent, equal to that which would be required to reduce the
Obligations so that Borrower will be in compliance with the covenants set forth
herein upon the consummation of the contemplated transaction, shall be applied
to prepay the Obligations.
8.10. Notices of Minority Holdings. The Borrower shall deliver to the
Administrative Agent and the Lenders written notice of each of the following not
less than two (2) Business Days prior to the occurrence thereof: (a) the
acquisition of an interest in a Minority Holding in excess of $1,000,000, (b)
the investment of an amount in excess of $1,000,000 in a Minority Holding of
which the Administrative Agent and the Lenders have not previously received
notice, and (c) the sale of an interest in a Subsidiary that results in the same
becoming a Minority Holding. Simultaneously with the delivery of the Compliance
Certificates, the Borrower shall deliver to the Administrative Agent and the
Lenders written notice of the formation of any other Minority Holding.
8.11. Tenant Notifications. The Borrower shall promptly notify the
Administrative Agent upon obtaining knowledge of the bankruptcy or cessation of
operations of any tenant to which greater than three and one half percent (3.5%)
of the Borrower's share of consolidated minimum rent is attributable to such
tenant.
8.12. Other Reports. The Borrower shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the other
Lenders) copies of all financial statements and reports, if any, sent or made
available generally by the Company and/or the Borrower to its respective
Securities holders, including, without limitation, supplemental quarterly forms,
or (to the extent not otherwise provided hereunder), all press releases made
available generally by the Company and/or the Borrower or any of their
Subsidiaries to the public concerning material adverse developments in the
business of the Company, the Borrower or any such Subsidiary and all material
notifications received by the Company, the Borrower or their Subsidiaries
pursuant to the Securities Exchange Act and the rules promulgated thereunder.
8.13. Other Information. Promptly upon receiving a request therefor
from the Administrative Agent, the Borrower shall prepare and deliver to the
Administrative Agent (with copies for each of the other Lenders) such other
information with respect to the Company, the Borrower or any of its
Subsidiaries, as from time to time may be reasonably requested by the
Administrative Agent.
ARTICLE IX
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities pursuant to Section 14.3 not yet due), unless the
Requisite Lenders shall otherwise give prior written consent:
9.1. Existence, Etc. The Borrower shall, and shall cause each of its
Subsidiaries to, at all times maintain its corporate existence or existence as a
limited partnership or joint venture, as applicable, and preserve and keep, or
cause to be preserved and kept, in full force and effect its rights and
franchises material to its businesses, except where the loss or termination of
such rights and franchises will not have a Material Adverse Effect.
9.2. Powers; Conduct of Business. The Borrower shall remain qualified,
and shall cause each of its Subsidiaries to qualify and remain qualified, to do
business and maintain its good standing in each jurisdiction in which the nature
of its business and the ownership of its Property requires it to be so qualified
and in good standing if the failure to do so will have a Material Adverse
Effect.
9.3. Compliance with Laws, Etc. The Borrower shall, and shall cause
each of its Subsidiaries to, (a) comply with all Requirements of Law and all
restrictive covenants affecting such Person or the business, Property or
operations of such Person, and (b) obtain and maintain as needed all Permits
necessary for its operations (including, without limitation, the operation of
the Projects) and maintain such Permits in good standing, except where
noncompliance with either clause (a) or (b) above will not have a Material
Adverse Effect.
9.4. Payment of Taxes and Claims. (a) The Borrower shall pay, and cause
each of its Subsidiaries to pay, (i) all material taxes, assessments and other
governmental charges imposed upon it or on any of its Property or assets or in
respect of any of its franchises, licenses, receipts, sales, use, payroll,
employment, business, income or Property before any penalty or interest accrues
thereon, and (ii) all material Claims (including, without limitation, claims for
labor, services, materials and supplies) for sums which have become due and
payable and which by law have or may become a Lien (other than a Lien permitted
by Section 10.2 or a Customary Permitted Lien for property taxes and assessments
not yet due upon any of the Borrower's or any of the Borrower's Subsidiaries'
Property, prior to the time when any penalty or fine shall be incurred with
respect thereto; provided, however, that no such taxes, assessments, fees and
governmental charges referred to in clause (i) above or Claims referred to in
clause (ii) above need be paid if being contested in good faith by appropriate
proceedings diligently instituted and conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor.
9.5. Insurance. The Borrower shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force
and effect the insurance policies and programs listed on SCHEDULE 7.1-T or
substantially similar policies and programs or other policies and programs as
are reasonably acceptable to the Administrative Agent. All such policies and
programs shall be maintained with insurers having an Alfred M. Best Company,
Inc. rating of "A" or better and a financial size category of not less than IX.
9.6. Inspection of Property; Books and Records; Discussions. The
Borrower shall permit, and cause each of its Subsidiaries and the Company, to
permit, any authorized representative(s) designated by the Administrative Agent
or other Lender to visit and inspect any of the Projects, to examine, audit, and
check their respective financial and accounting records, books, journals,
orders, receipts and any correspondence and other data relating to their
respective businesses or the transactions contemplated hereby (including,
without limitation, in connection with environmental compliance, hazard or
liability), and to discuss their affairs, finances and accounts with their
officers and independent certified public accountants, upon reasonable notice
and at such reasonable times during normal business hours, as often as may be
reasonably requested. Each such visitation and inspection shall be at such
visitor's expense. The Borrower shall keep and maintain, and cause its
Subsidiaries to keep and maintain, in all material respects proper books of
record and account in which entries in conformity with GAAP.
9.7. ERISA Compliance. The Borrower shall, and shall cause each of its
Subsidiaries and ERISA Affiliates to, establish, maintain and operate all Plans
to comply in all material respects with the provisions of ERISA, the Internal
Revenue Code, all other applicable laws, and the regulations and interpretations
thereunder and the respective requirements of the governing documents for such
Plans.
9.8. Maintenance of Property. The Borrower shall, and shall cause each
of its Subsidiaries to, maintain in all material respects all of their
respective owned and leased Property in good, safe and insurable condition and
repair (ordinary wear and tear excepted), and not permit, commit or suffer any
waste or abandonment of any such Property and from time to time shall make or
cause to be made all material repairs, renewal and replacements thereof,
including, without limitation, any capital improvements which may be required to
maintain the same; provided, however, that such Property may be altered or
renovated in the ordinary course of business of the Borrower or such applicable
Subsidiary. Without any limitation on the foregoing, the Borrower shall maintain
the Projects in a manner such that each Project can be used in the manner and
substantially for the purposes such Project is used on the Closing Date,
including, without limitation, maintaining all utilities, access rights, zoning
and necessary Permits for such Project.
9.9. Company Status. The Company shall at all times (1) remain a
publicly traded company listed on the New York Stock Exchange; (2) maintain its
status as a REIT under the Internal Revenue Code, and (3) retain direct or
indirect management and control of the Borrower.
9.10. Ownership of Projects, Minority Holdings and Property. The
ownership of substantially all wholly owned Projects, Minority Holdings and
other Property of the Consolidated Businesses shall be held by the Borrower and
its Subsidiaries and shall not be held directly by the Company.
9.11. Maintenance of Operating Accounts. The Borrower shall at all
times during the term hereof maintain a demand deposit account held by
Administrative Agent (the "Operating Account") and shall cause funds to be
deposited therein in an amount sufficient to permit the Administrative Agent to
automatically deduct therefrom the respective interest payments on the
Obligations at 12:00 p.m. on the first day of each month.
ARTICLE X
NEGATIVE COVENANTS
Borrower covenants and agrees that it shall comply with the following
covenants so long as any Commitments are outstanding and thereafter until
payment in full of all of the Obligations (other than indemnities pursuant to
Section 14.3 not yet due), unless the Requisite Lenders shall otherwise give
prior written consent:
10.1. Intentionally Omitted.
10.2. Liens. Neither of the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or permit to exist any Lien on or
with respect to any Property, except:
(a) Liens with respect to Capital Leases of Equipment entered into in
the ordinary course of business of the Borrower or its Subsidiaries
pursuant to which the aggregate Indebtedness under such Capital Leases does
not exceed $1,000,000 for any Project;
(b) Existing Permitted Liens;
(c) Liens securing Secured Indebtedness permitted under Section 10.11
hereof; and
(d) Customary Permitted Liens.
10.3. Intentionally Omitted.
10.4. Conduct of Business. Neither the Borrower nor any of its
Subsidiaries shall engage in any business, enterprise or activity other than (a)
the businesses of acquiring, developing, re-developing and managing
predominantly office and industrial Projects and portfolios of like Projects,
(b) any business or activities which are substantially similar, related or
incidental thereto, (c) investments in and loans to Investment Funds, Reckson
Service Industries Inc., Subsidiaries, Affiliates and Minority Holdings, and (d)
loans to the Persons described in Section 2.3(h) hereof.
10.5. Transactions with Partners and Affiliates. Neither the Borrower
nor any of its Subsidiaries shall directly or indirectly enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with any holder or
holders of more than five percent (5%) of any class of equity Securities of the
Borrower, or with any Affiliate of the Borrower, unless such transaction is
determined by the respective Boards of Directors (or managers or trustees) of
the Company to be no less favorable to the Borrower or any of its Subsidiaries,
as applicable, than those that might be obtained in an arm's length transaction
at the time from Persons who are not such a holder or Affiliate (other than
transactions permitted by Section 2.3). Nothing contained in this Section 10.5
shall prohibit (a) increases in compensation and benefits for officers and
employees of the Borrower or any of its Subsidiaries; (b) payment of officers',
managers', trustees', directors', partners' and other similar indemnities; (c)
performance of any obligations arising under the Loan Documents; or (d) loans to
Persons in connection with such Person's contribution of Real Property to the
Consolidated Businesses or Minority Holdings.
10.6. Restriction on Fundamental Changes. The Borrower shall not enter
into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer
any liquidation or dissolution), or convey, lease, sell, transfer or otherwise
dispose of, in one transaction or series of transactions, all or substantially
all of the Borrower's business or Property, whether now or hereafter acquired,
except in connection with issuance, transfer, conversion or repurchase of
limited partnership interests in the Borrower. Notwithstanding the foregoing,
the Borrower shall be permitted to merge with another Person so long as the
Borrower is the surviving Person following such merger.
10.7. Margin Regulations; Securities Laws. Neither the Borrower nor any
of its Subsidiaries, shall use all or any portion of the proceeds of any credit
extended under this Agreement to purchase or carry Margin Stock.
10.8. ERISA. The Borrower shall not and shall not permit any of its
Subsidiaries or ERISA Affiliates to:
(a) engage in any prohibited transaction described in Sections 406 of
ERISA or 4975 of the Internal Revenue Code for which a statutory or class
exemption is not available or a private exemption has not been previously
obtained from the DOL, except to the extent engaging in such transaction
would not have a Material Adverse Effect;
(b) permit to exist any accumulated funding deficiency (as defined in
Sections 302 of ERISA and 412 of the Internal Revenue Code), with respect
to any Benefit Plan, whether or not waived;
(c) fail to pay timely required contributions or annual installments
due with respect to any waived funding deficiency to any Benefit Plan;
(d) terminate any Benefit Plan which would result in any liability of
Borrower or any ERISA Affiliate under Title IV of ERISA;
(e) fail to make any contribution or payment to any Multiemployer Plan
which Borrower or any ERISA Affiliate may be required to make under any
agreement relating to such Multiemployer Plan, or any law pertaining
thereto, except to the extent such failure would not have a Material
Adverse Effect;
(f) fail to pay any required installment or any other payment required
under Section 412 of the Internal Revenue Code on or before the due date
for such installment or other payment; or
(g) amend a Benefit Plan resulting in an increase in current liability
for the plan year such that the Borrower or any ERISA Affiliate is required
to provide security to such Plan under Section 401(a)(29) of the Internal
Revenue Code.
10.9. Organizational Documents. Neither the Company nor the Borrower
shall amend, modify or otherwise change any of the terms or provisions in any of
their respective Organizational Documents as in effect on the Closing Date,
except amendments to effect (a) a change of name of the Borrower, provided that
the Borrower shall have provided the Administrative Agent with thirty (30) days
prior written notice of any such name change, or (b) changes that would not
affect such Organizational Documents in any material manner not otherwise
permitted under this Agreement.
10.10. Fiscal Year. Neither the Company, the Borrower nor any of their
Subsidiaries shall change its Fiscal Year for accounting or tax purposes from a
period consisting of the 12-month period ending on December 31 of each calendar
year.
10.11. Financial Covenants.
(a) Indebtedness. Neither the Borrower nor any of its Subsidiaries
shall directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except
Indebtedness which, when aggregated with Indebtedness of the Borrower or any of
its Subsidiaries and Minority Holdings Indebtedness allocable in accordance with
GAAP to the Borrower or any Subsidiary of the Borrower as of the time of
determination, would not exceed (i) fifty percent (50%) of Total Value as of the
date of incurrence ("Total Outstanding Indebtedness Limitation"), (ii) in the
case of Secured Indebtedness of the Consolidated Businesses and the Borrower's
proportionate share of Secured Indebtedness of its Minority Holdings, as well as
unsecured recourse Indebtedness of the consolidated Subsidiaries, thirty-five
percent (35%) of the Total Value ("Total Secured Outstanding Indebtedness
Limitation") or (iii) in the case of recourse Secured Indebtedness of the
Consolidated Businesses, ten percent (10%) of the Total Value ("Recourse Secured
Indebtedness Limitation").
(b) Minimum Combined Equity Value. The Combined Equity Value shall at
no time be less than $750,000,000, plus an amount equal to seventy percent (70%)
of all Net Offering Proceeds received by the Company after the date hereof.
(c) Intentionally Omitted.
(d) Minimum Unsecured Interest Coverage Ratio. As of the first day of
each calendar quarter for the immediately preceding calendar quarter, the ratio
of (i) Adjusted Unencumbered NOI to (ii) Unsecured Interest Expense shall not be
less than 2.25 to 1.0.
(e) Minimum Unsecured Debt Yield. As of the first day of each calendar
quarter for the immediately preceding calendar quarter, the ratio of Adjusted
Unencumbered NOI for such calendar quarter, multiplied by 4 to Total Unsecured
Outstanding Indebtedness shall not be less than the greater of (i) either (a)
15%, if Adjusted Unencumbered NOI is derived from the office and industrial
properties wholly-owned by the Borrower, the Company and the Consolidated
Businesses, or (b) 16%, if Adjusted Unencumbered NOI is derived from both office
and industrial properties both wholly-owned by the Borrower, the Company and the
Consolidated Businesses and from Minority Holdings; and (ii) a percentage equal
to an interest rate constant equal to the product of (x) the sum of the then
Treasury Rate and two percent (2%), and a thirty year mortgage-style
amortization schedule, and (y) 125%.
(f) Minimum Adjusted Unencumbered NOI. As of the first day of each
calendar quarter, the Adjusted Unencumbered NOI for the immediately preceding
calendar quarter multiplied by 4 shall not be less than $35,000,000.
(g) Minimum Fixed Charge Coverage Ratio. As of the first day of each
calendar quarter for the immediately preceding calendar quarter, the ratio of
(i) Total Adjusted EBITDA, to (ii) Fixed Charges shall not be less than 2.0 to
1.0.
(h) Maximum Dividend Payout Ratio. The Company shall not make any
Restricted Payment during any of its fiscal quarters, which, when added to all
Restricted Payments made during the three immediately preceding fiscal quarters,
exceeds the greater of (i) 90% of FFO, and 100% of FAD, and (ii) the amounts
required to maintain its status as a REIT under the Internal Revenue Code, and,
provided an Event of Default shall not have occurred and be continuing, to avoid
federal income and excise tax liability. For purposes of this provision,
"Restricted Payment" means (i) any dividend or other distribution on any shares
of the Company's capital stock (except dividends payable solely in shares of its
capital stock or in rights to subscribe for or purchase shares of its capital
stock), or (ii) any payment on account of the purchase, redemption, retirement
or acquisition of (a) any shares of the Company's capital stock, or (b) any
option, warrant or other right to acquire shares of the Company's capital stock.
(i) Recourse Secured Indebtedness. The Secured Loan-to-Value Ratio with
respect to any Project for which the Consolidated Businesses shall create or
assume recourse Secured Indebtedness, shall at no time exceed seventy five
percent (75%).
(j) Negative Pledge. From and after the date hereof, neither the
Borrower nor the Company will, and will not permit any Subsidiary, to enter into
any agreement containing any provision prohibiting the creation or assumption of
any Lien upon its properties (other than with respect to prohibitions on
subordinate liens set forth in a mortgage on a particular property or customary
restrictions contained in the organizational documents of Minority Holdings),
revenues or assets, whether now owned or hereafter acquired, or restricting the
ability of the Borrower to amend or modify this Agreement or any other Loan
Document.
(k) Pro Forma Calculations. The Borrower shall comply with the
financial ratios set forth in this Section 10.11 as of the date of each
Borrowing. The Borrower shall recalculate the financial ratios by adding the
deemed amount equal to the Borrowing to the Indebtedness reflected on the most
recently available financial statements, and adding thereto any Indebtedness
incurred since the date of such financial statement and adding thereto the value
of such assets (determined at cost) acquired with such Indebtedness to Total
Value. For the purposes of calculating the Minimum Unsecured Debt Yield, the
Borrower shall add to the annualized Adjusted Unencumbered NOI for the previous
quarter, for any Real Property acquired during the quarter or with a Borrowing
made hereunder, the lesser of (x) the product of .095 and the purchase price of
any such Real Property, and (y) the annualized Adjusted Unencumbered NOI with
respect thereto. The Borrower shall deliver an Officer's Certificate, signed by
the Borrower representing and certifying that the pro forma calculations as of
the date of the draw demonstrate Borrower's compliance with the covenants and
financial ratios set forth in this Section 10.11.
10.12. Negative Covenants with respect to the Company.
(a) From and after the date hereof, the Company will not acquire any
assets of any nature whatsoever other than additional units in the Borrower.
(b) From and after the date hereof, the Company will not incur any
Indebtedness or any other obligations or liabilities except (x) as the general
partner of the Borrower in connection with trade payable incurred in the
ordinary course of business, (y) Indebtedness, the net proceeds of which are
contributed to the Borrower simultaneously with the incurrence thereof by the
Company, and (z) guarantees of Indebtedness which is recourse to the Borrower.
(c) From and after the date hereof, the Company will not retain any Net
Offering Proceeds, and the same will be contributed by the Company to the
Borrower simultaneously with receipt thereof by the Company.
(d) The Company shall not enter into any merger or consolidation, or
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or
convey, lease, sell, transfer or otherwise dispose of, in one transaction or
series of transactions, any of its business or assets, including its interests
in the Borrower. Notwithstanding the foregoing, the Company shall be permitted
to merge with another Person so long as the Company is the surviving Person
following such merger.
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. Events of Default. Each of the following occurrences shall
constitute an Event of Default under this Agreement:
(a) Failure to Make Payments When Due. The Borrower shall fail to pay
(i) when due any principal payment on the Obligations which is due on the
Termination Date or pursuant to the terms of Section 2.1(a), Section 2.4,
Section 4.1(a), or Section 4.1(d) or (ii) when due, any interest payment on the
Obligations, provided, however, that the Borrower shall be entitled to a five
(5) day grace period with respect to any interest payment but not more than one
time in any twelve (12) month period during the term hereof, or (iii) when due,
any principal payment on the Obligations not referenced in clauses (i) or (ii)
hereinabove or (iv) when due, any fees due pursuant to the terms of Section 5.3
and such default shall continue for five (5) days.
(b) Breach of Certain Covenants. The Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on such Person under Sections 9.1, 9.4, 9.5, 9.10, 9.11 or Article X.
(c) Breach of Representation or Warranty. Any representation or
warranty made by the Borrower or any of the parties to the Guaranty to the
Administrative Agent or any other Lender herein or by the Borrower or any of the
parties to the Guaranty or any of their Subsidiaries in any of the other Loan
Documents or in any statement or certificate at any time given by any such
Person pursuant to any of the Loan Documents shall be false or misleading in any
material respect on the date as of which made.
(d) Other Defaults. The Borrower shall default in the performance of or
compliance with any term contained in this Agreement (other than as identified
in paragraphs (a), (b) or (c) of this Section 11.1), or any default or event of
default shall occur under any of the other Loan Documents, and such default or
event of default shall continue for thirty (30) days after receipt of written
notice from the Administrative Agent thereof.
(e) Acceleration of Other Indebtedness. Any breach, default or event of
default shall occur and be continuing, or any other condition shall exist under
any instrument, agreement or indenture, including, without limitation, the
Revolving Credit Agreement, pertaining to any recourse Indebtedness (other than
the Obligations) of the Company, the Borrower or their Subsidiaries aggregating
more than $10,000,000, and the effect thereof is to cause an acceleration,
mandatory redemption or other required repurchase of such Indebtedness, or
permit the holder(s) of such Indebtedness to accelerate the maturity of any such
Indebtedness or require a redemption or other repurchase of such Indebtedness;
or any such Indebtedness shall be otherwise declared to be due and payable (by
acceleration or otherwise) or required to be prepaid, redeemed or otherwise
repurchased by the Borrower or any of its Subsidiaries (other than by a
regularly scheduled required prepayment) prior to the stated maturity thereof.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the Company, the
Borrower, or any of their Subsidiaries to which $25,000,000 or more of the
Combined Equity Value is attributable, and the petition shall not be dismissed,
stayed, bonded or discharged within sixty (60) days after commencement of the
case; or a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company, the Borrower or any such
Subsidiaries of the Borrower in an involuntary case, under any applicable
bankruptcy, insolvency or other similar law now or hereinafter in effect; or any
other similar relief shall be granted under any applicable federal, state, local
or foreign law; or the respective board of directors of the Company, or Limited
Partners of the Borrower or the board of directors or partners of any such
Subsidiaries of the Borrower (or any committee thereof) adopts any resolution or
otherwise authorizes any action to approve any of the foregoing.
(ii) A decree or order of a court having jurisdiction in the premises
for the appointment of a receiver, liquidator, sequestrator, trustee, custodian
or other officer having similar powers over the Company, the Borrower or any of
its Subsidiaries to which $25,000,000 or more of the Combined Equity Value is
attributable, or over all or a substantial part of the Property of the Company,
the Borrower or any of such Subsidiaries shall be entered; or an interim
receiver, trustee or other custodian of the Company, the Borrower or any of such
Subsidiaries or of all or a substantial part of the Property of the Company, the
Borrower or any of such Subsidiaries shall be appointed or a warrant of
attachment, execution or similar process against any substantial part of the
Property of any of the Company, the Borrower, or any of such Subsidiaries shall
be issued and any such event shall not be stayed, dismissed, bonded or
discharged within sixty (60) days after entry, appointment or issuance; or the
respective board of directors of any of the Company or Limited Partners of the
Borrower or the board of directors or partners of any of Borrower's Subsidiaries
(or any committee thereof) adopts any resolution or otherwise authorizes any
action to approve any of the foregoing.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Company,
the Borrower or any of their Subsidiaries to which $25,000,000 or more of the
Combined Equity Value is attributable, shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under any
such law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
Property; or the Company, the Borrower or any of such Subsidiaries shall make
any assignment for the benefit of creditors or shall be unable or fail, or admit
in writing its inability, to pay its debts as such debts become due.
(h) Judgments and Unpermitted Liens.
(i) Any money judgment (other than a money judgment covered by
insurance as to which the insurance company has acknowledged coverage), writ or
warrant of attachment, or similar process against the Borrower or any of its
Subsidiaries or any of their respective assets involving in any case an amount
in excess of $5,000,000 (other than with respect to Claims arising out of
non-recourse Indebtedness) is entered and shall remain undischarged, unvacated,
unbonded or unstayed for a period of sixty (60) days or in any event later than
five (5) days prior to the date of any proposed sale thereunder.
(ii) A federal, state, local or foreign tax Lien is filed
against the Borrower which is not discharged of record, bonded over or
otherwise secured to the satisfaction of the Administrative Agent within sixty
(60) days after the filing thereof or the date upon which the Administrative
Agent receives actual knowledge of the filing thereof for an amount which,
either separately or when aggregated with the amount of any judgments described
in clause (i) above, equals or exceeds $5,000,000.
(iii) An Environmental Lien is filed against any Project with
respect to Claims in an amount which, either separately or when aggregated with
the amount of all other such Environmental Liens, equals or exceeds $5,000,000.
(i) Dissolution. Any order, judgment or decree shall be entered against
the Borrower decreeing its involuntary dissolution or split up; or the Borrower
shall otherwise dissolve or cease to exist except as specifically permitted by
this Agreement.
(j) Loan Documents. At any time, for any reason, any Loan Document
ceases to be in full force and effect or the Borrower seeks to repudiate its
obligations thereunder.
(k) ERISA Termination Event. Any ERISA Termination Event occurs which
the Administrative Agent believes could subject any of the Borrower or any ERISA
Affiliate to liability in excess of $500,000.
(l) Waiver Application. The plan administrator of any Benefit Plan
applies under Section 412(d) of the Code for a waiver of the minimum funding
standards of Section 412(a) of the Internal Revenue Code and the Administrative
Agent believes that the substantial business hardship upon which the application
for the waiver is based could subject either the Borrower or any ERISA Affiliate
to liability in excess of $500,000.
(m) Material Adverse Effect. An event shall occur which has a Material
Adverse Effect.
(n) Certain Defaults Pertaining to the Company. The Company shall fail
to comply with Sections 9.9, or 7.1(a)(ii), (b), (d), (l), or (o).
(o) Merger or Liquidation of the Company or the Borrower. The Company
shall merge or liquidate with or into any other Person and, as a result thereof
and after giving effect thereto, (i) the Company is not the surviving Person or
(ii) such merger or liquidation would effect an acquisition of or Investment in
any Person not otherwise permitted under the terms of this Agreement. The
Borrower shall merge or liquidate with or into any other Person and, as a result
thereof and after giving effect thereto, (i) the Borrower is not the surviving
Person or (ii) such merger or liquidation would effect an acquisition of or
Investment in any Person not otherwise permitted under the terms of this
Agreement.
An Event of Default shall be deemed "continuing" until cured or waived in
writing in accordance with Section 14.7.
11.2. Rights and Remedies.
(a) Acceleration and Termination. Upon the occurrence of any Event of
Default described in Sections 11.1(f) or 11.1(g), the Commitments shall
automatically and immediately terminate and the unpaid principal amount of, and
any and all accrued interest on, the Obligations and all accrued fees shall
automatically become immediately due and payable, without presentment, demand,
or protest or other requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of intent to demand
or accelerate and of acceleration), all of which are hereby expressly waived by
the Borrower, and, upon the occurrence and during the continuance of any other
Event of Default, the Administrative Agent shall at the request, or may with the
consent, of the Lenders whose Pro Rata Shares, in the aggregate, are greater
than fifty-one percent (51%), by written notice to the Borrower, (i) declare
that the Commitments are terminated, whereupon the Commitments and the
obligation of each Lender to make any Loan hereunder shall immediately
terminate, and/or (ii) declare the unpaid principal amount of and any and all
accrued and unpaid interest on the Obligations to be, and the same shall
thereupon be, immediately due and payable, without presentment, demand, or
protest or other requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of intent to demand
or accelerate and of acceleration), all of which are hereby expressly waived by
the Borrower.
(b) Rescission. If at any time after termination of the Commitments
and/or acceleration of the maturity of the Loans, the Borrower shall pay all
arrears of interest and all payments on account of principal of the Loans which
shall have become due otherwise than by acceleration (with interest on principal
and, to the extent permitted by law, on overdue interest, at the rates specified
in this Agreement) and all Events of Default and Potential Events of Default
(other than nonpayment of principal of and accrued interest on the Loans due and
payable solely by virtue of acceleration) shall be remedied or waived pursuant
to Section 14.7, then upon the written consent of the Requisite Lenders and
written notice to the Borrower, the termination of the Commitments and/or the
acceleration and their consequences may be rescinded and annulled; but such
action shall not affect any subsequent Event of Default or Potential Event of
Default or impair any right or remedy consequent thereon. The provisions of the
preceding sentence are intended merely to bind the Lenders to a decision which
may be made at the election of the Requisite Lenders; they are not intended to
benefit the Borrower and do not give the Borrower the right to require the
Lenders to rescind or annul any acceleration hereunder, even if the conditions
set forth herein are met.
(c) Enforcement. The Borrower acknowledges that in the event the
Borrower or any of its Subsidiaries fails to perform, observe or discharge any
of their respective obligations or liabilities under this Agreement or any other
Loan Document, any remedy of law may prove to be inadequate relief to the
Administrative Agent and the other Lenders; therefore, the Borrower agrees that
the Administrative Agent and the other Lenders shall be entitled to temporary
and permanent injunctive relief in any such case without the necessity of
proving actual damages.
ARTICLE XII
THE AGENTS
12.1. Appointment. (a) Each Lender hereby designates and appoints Chase
as the Administrative Agent of such Lender under this Agreement, and each Lender
hereby irrevocably authorizes the Administrative Agent to take such actions on
its behalf under the provisions of this Agreement and the Loan Documents and to
exercise such powers as are set forth herein or therein together with such other
powers as are reasonably incidental thereto. The Administrative Agent agrees to
act as such on the express conditions contained in this Article XII.
(b) The provisions of this Article XII are solely for the benefit of
the Administrative Agent and the other Lenders, and neither the Borrower, the
Company nor any Subsidiary of the Borrower shall have any rights to rely on or
enforce any of the provisions hereof (other than as expressly set forth in
Section 12.7). In performing its respective functions and duties under this
Agreement, the Administrative Agent shall act solely as agent of the Lenders and
does not assume and shall not be deemed to have assumed any obligation or
relationship of agency, trustee or fiduciary with or for the Company, the
Borrower or any Subsidiary of the Borrower. The Administrative Agent may perform
any of its duties hereunder, or under the Loan Documents, by or through their
respective agents or employees.
12.2. Nature of Duties. The Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement or
in the Loan Documents. The duties of the Administrative Agent shall be
mechanical and administrative in nature. The Administrative Agent shall not have
by reason of this Agreement a fiduciary relationship in respect of any Lender.
Nothing in this Agreement or any of the Loan Documents, expressed or implied, is
intended to or shall be construed to impose upon the Administrative Agent any
obligations in respect of this Agreement or any of the Loan Documents except as
expressly set forth herein or therein. The Administrative Agent hereby agrees
that its duties shall include providing copies of documents received by such
Agent from the Borrower which are reasonably requested by any Lender, furnishing
copies of documents to each Lender, upon request, of documents sent by the Agent
to the Borrower and promptly notifying each Lender upon its obtaining actual
knowledge of the occurrence of the Event of Default hereunder. In addition, the
Administrative Agent shall deliver to each Lender, promptly after receipt
thereof, copies of those documents and reports received by it pursuant to
Sections 8.2 (other than clause (b)(iv)) and 8.3.
12.3. Right to Request Instructions. The Administrative Agent may at
any time request instructions from the Lenders with respect to any actions or
approvals which by the terms of any of the Loan Documents the Agent is permitted
or required to take or to grant, and the Agent shall be absolutely entitled to
refrain from taking any action or to withhold any approval and shall not be
under any liability whatsoever to any Person for refraining from any action or
withholding any approval under any of the Loan Documents until it shall have
received such instructions from those Lenders from whom the Agent is required to
obtain such instructions for the pertinent matter in accordance with the Loan
Documents. Without limiting the generality of the foregoing, the Agent shall
take any action, or refrain from taking any action, which is permitted by the
terms of the Loan Documents upon receipt of instructions from those Lenders from
whom such Agent is required to obtain such instructions for the pertinent matter
in accordance with the Loan Documents, provided, that no Lender shall have any
right of action whatsoever against the Administrative Agent as a result of such
Agent acting or refraining from acting under the Loan Documents in accordance
with the instructions of the Requisite Lenders or, where required by the express
terms of this Agreement, a greater proportion of the Lenders.
12.4. Reliance. The Administrative Agent shall be entitled to rely upon
any written notices, statements, certificates, orders or other documents
believed by it in good faith to be genuine and correct and to have been signed,
sent or made by the proper Person, and with respect to all matters pertaining to
this Agreement or any of the Loan Documents and its duties hereunder or
thereunder, upon advice of legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it.
12.5. Indemnification. To the extent that the Administrative Agent is
not reimbursed and indemnified by the Borrower, the Lenders will reimburse and
indemnify such Agent for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, and reasonable costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against it in any way relating to or arising out of
the Loan Documents or any action taken or omitted by such Agent under the Loan
Documents, in proportion to each Lender's Pro Rata Share. Notwithstanding
anything to the contrary contained herein, the Administrative Agent shall not be
indemnified to the extent such liabilities, obligations, losses, damages,
penalties, actions, judgments, suite, costs and expenses result from such
Person's gross negligence, willful misconduct or breach of this Article XII.
Such Agent agrees to refund to the Lenders any of the foregoing amounts paid to
it by the Lenders which amounts are subsequently recovered by such Agent from
the Borrower or any other Person on behalf of the Borrower. The obligations of
the Lenders under this Section 12.5 shall survive the payment in full of the
Loans and all other Obligations and the termination of this Agreement.
12.6. Agent Individually. With respect to their respective Pro Rata
Share of the Commitments hereunder, if any, and the Loans made by them, if any,
the Administrative Agent and the Documentation Agent shall have and may exercise
the same rights and powers hereunder and is subject to the same obligations and
liabilities as and to the extent set forth herein for any other Lender. The
terms "Lenders" or "Requisite Lenders" or any similar terms shall, unless the
context clearly otherwise indicates, include Chase in its respective individual
capacity as a Lender or as one of the Requisite Lenders. Chase and each of their
respective Affiliates may accept deposits from, lend money to, and generally
engage in any kind of banking, trust or other business with the Borrower or any
of their Subsidiaries as if Chase was not acting as the Administrative Agent.
12.7. Successor Agents.
(a) Resignation. The Administrative Agent may resign from the
performance of all its functions and duties hereunder at any time by giving at
least thirty (30) Business Days' prior written notice to the Borrower and the
other Lenders, unless applicable law requires a shorter notice period or that
there be no notice period, in which instance such applicable law shall control.
In addition, the Administrative Agent shall offer to resign if, at any time, it
shall not hold any Commitment. Such resignation shall take effect upon the
acceptance by the Requisite Lenders, in the case of an offer to resign by the
Administrative Agent, as set forth in the immediately preceeding sentence, and,
in either case, the acceptance by a successor Administrative Agent of
appointment pursuant to this Section 12.7.
(b) Appointment by Requisite Lenders. Upon any such resignation
becoming effective, the Requisite Lenders shall have the right to appoint a
successor Administrative Agent selected from among the Lenders with the prior
written consent of the Borrower which shall not be unreasonably withheld.
(c) Appointment by Retiring Agent. If a successor Administrative Agent
shall not have been appointed within the thirty (30) Business Day or shorter
period provided in paragraph (a) of this Section 12.7, the retiring Agent shall
then appoint a successor Agent who shall serve as Administrative Agent until
such time, if any, as the Requisite Lenders appoint a successor Agent as
provided above with the prior written consent of the Borrower which shall not be
unreasonably withheld, provided, however, that such successor Administrative
Agent shall have total assets of not less than $10,000,000,000.
(d) Rights of the Successor and Retiring Agents. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Article XII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Agent under this Agreement.
12.8. Relations Among the Lenders. Each Lender agrees that it will not
take any legal action, nor institute any actions or proceedings, against the
Borrower or any other obligor hereunder with respect to any of the Obligations,
without the prior written consent of the Lenders. Without limiting the
generality of the foregoing, no Lender may accelerate or otherwise enforce its
portion of the Obligations, or unilaterally terminate its Commitment except in
accordance with Section 11.2(a).
12.9. Standard of Care. The Administrative Agent shall administer the
Loans in the same manner that the Administrative Agent administers loans made
for its own account.
ARTICLE XIII
YIELD PROTECTION
13.1. Taxes.
(a) Payment of Taxes. Any and all payments by the Borrower hereunder or
under its respective Notes or other document evidencing any Obligations of such
Person shall be made, in accordance with Section 4.2, free and clear of and
without reduction for any and all present or future taxes, levies, imposts,
deductions, charges, withholdings, and all stamp or documentary taxes, excise
taxes, ad valorem taxes and other taxes which arise from the execution, delivery
or registration, or from payment or performance under, or otherwise with respect
to, any of the Loan Documents or the Commitments and all other liabilities with
respect thereto excluding, in the case of each Lender, taxes imposed on or
measured by net income or overall gross receipts and capital and franchise taxes
imposed on it by (i) the United States, (ii) the Governmental Authority of the
jurisdiction in which such Lender's Applicable Lending Office is located or any
political subdivision thereof or (iii) the Governmental Authority in which such
Person is organized, managed and controlled or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges and
withholdings being hereinafter referred to as "Taxes"). Except as otherwise
provided herein, if the Borrower shall be required by law to withhold or deduct
any Taxes from or in respect of any sum payable hereunder or under any such Note
or document to any Lender, (x) the sum payable to such Lender shall be increased
as may be necessary so that after making all required withholding or deductions
(including withholding or deductions applicable to additional sums payable under
this Section 13.1) such Lender receives an amount equal to the sum it would have
received had no such withholding or deductions been made, (y) the Borrower shall
make such withholding or deductions, and (z) the Borrower shall pay the full
amount withheld or deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) Indemnification. Except as otherwise provided herein, the Borrower
will indemnify each Lender against, and reimburse each within ten (10) Business
Days after written demand for, the full amount of all Taxes (including, without
limitation, any Taxes imposed by any Governmental Authority on amounts payable
under this Section 13.1 and any additional income or franchise taxes resulting
therefrom) incurred or paid by such Lender and any liability (including
penalties, interest, and out-of-pocket expenses paid to third parties) arising
therefrom or with respect thereto, whether or not such Taxes were lawfully
payable, to the extent not paid by the Borrower pursuant to Section 13.1 hereof.
A certificate as to any additional amount payable to any Person under this
Section 13.1 submitted by it to the Borrower shall, absent manifest error, be
final, conclusive and binding upon all parties hereto. Each Lender agrees,
within a reasonable time after receiving a written request from the Borrower, to
provide the Borrower and the Administrative Agent with such certificates and
other documents as are reasonably required, and take such other actions as are
reasonably necessary to claim such exemptions as such Lender may be entitled to
claim in respect of all or a portion of any Taxes which are otherwise required
to be paid or deducted or withheld pursuant to this Section 13.1 in respect of
any payments under this Agreement or under the other Loan Documents. If any
Lender receives any refund with respect to any Taxes, such Lender shall promptly
remit such refund to the Borrower.
(c) Receipts. Within thirty (30) days after the date of any payment of
Taxes by the Borrower, the Borrower will furnish to the Administrative Agent, at
its address referred to in Section 14.8, the original or a certified copy of a
receipt evidencing payment thereof.
(d) Foreign Bank Certifications. (i) Each Lender that is not created or
organized under the laws of the United States or a political subdivision thereof
shall deliver to each of the Borrower and the Administrative Agent on the
Closing Date or the date on which such Lender becomes a Lender pursuant to
Section 14.1 hereof a true and accurate certificate executed in duplicate by a
duly authorized officer of such Lender to the effect that such Lender is
eligible to receive payments hereunder and under the Notes without deduction or
withholding of United States federal income tax (I) under the provisions of an
applicable tax treaty concluded by the United States (in which case the
certificate shall be accompanied by two duly completed copies of IRS Form 1001
(or any successor or substitute form or forms)) or (II) under Sections
1442(c)(1) and 1442(a) of the Internal Revenue Code (in which case the
certificate shall be accompanied by two duly completed copies of IRS Form 4224
(or any successor or substitute form or forms)).
(ii) Each Lender further agrees to deliver to each of the Borrower and
the Administrative Agent from time to time, a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender before or
promptly upon the occurrence of any event requiring a change in the most recent
certificate previously delivered by it to the Borrower and the Administrative
Agent pursuant to this Section 13.1(d). Each certificate required to be
delivered pursuant to this Section 13.1(d)(ii) shall certify as to one of the
following:
(A) that such Lender can continue to receive payments hereunder and
under the Notes without deduction or withholding of United States federal
income tax;
(B) that such Lender cannot continue to receive payments hereunder and
under the Notes without deduction or withholding of United States federal
income tax as specified therein but does not require additional payments
pursuant to Section 13.1(a) because it is entitled to recover the full
amount of any such deduction or withholding from a source other than the
Borrower; or
(C) that such Lender is no longer capable of receiving payments
hereunder and under the Notes without deduction or withholding of United
States federal income tax as specified therein and that it is not capable
of recovering the full amount of the same from a source other than the
Borrower.
Each Lender agrees to deliver to each of the Borrower and the Administrative
Agent further duly completed copies of the above-mentioned IRS forms on or
before the earlier of (x) the date that any such form expires or becomes
obsolete or otherwise is required to be resubmitted as a condition to obtaining
an exemption from withholding from United States federal income tax and (y)
fifteen (15) days after the occurrence of any event requiring a change in the
most recent form previously delivered by such Lender to the Borrower and
Administrative Agent, unless any change in treaty, law, regulation, or official
interpretation thereof which would render such form inapplicable or which would
prevent the Lender from duly completing and delivering such form has occurred
prior to the date on which any such delivery would otherwise be required and the
Lender promptly advises the Borrower that it is not capable of receiving
payments hereunder and under the Notes without any deduction or withholding of
United States federal income tax.
(iii) Notwithstanding anything to the contrary contained in this
Section 13.1, the Borrower will not be required to make any additional payment
to or for the account of any Lender under Section 13.1(a) or (b) by reason of
(x) a breach by such Lender of any certification or representation set forth in
any form furnished to the Borrower under Section 13.1(d), or (y) such Lender's
failure or inability to furnish under Section 13.1(d) an original of an
extension or renewal of a Form 1001 or Form 4224 (or successor form), as
applicable, unless such failure or inability results from a change (after the
date such Lender became a Lender party hereto) in any applicable law or
regulation or in the interpretation thereof by any regulatory authority
(including without limitation any change in any applicable tax treaty).
13.2. Increased Capital. If after the date hereof any Lender determines
that (i) the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender or banks or financial institutions generally (whether or not having the
force of law), compliance with which affects the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such
Lender and (ii) the amount of such capital is increased by or based upon the
making or maintenance by any Lender of its Loans, any Lender's participation in
or obligation to participate in the Loans or other advances made hereunder or
the existence of any Lender's obligation to make Loans, then, in any such case,
within ten (10) Business Days after written demand by such Lender (with a copy
of such demand to the Administrative Agent), the Borrower shall immediately pay
to the Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation therefor. Such demand shall be accompanied by a
statement as to the amount of such compensation and include a brief summary of
the basis for such demand. Such statement shall be conclusive and binding for
all purposes, absent manifest error.
13.3. Changes; Legal Restrictions. If after the date hereof any Lender
determines that the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender, or over banks or financial institutions generally (whether or not having
the force of law), compliance with which:
(a) subjects a Lender (or its Applicable Lending Office or Eurodollar
Affiliate) to charges (other than taxes) of any kind which such Lender
reasonably determines to be applicable to the Commitments of the Lenders to
make Eurodollar Rate Loans or change the basis of taxation of payments to
that Lender of principal, fees, interest, or any other amount payable
hereunder with respect to Eurodollar Rate Loans (other than taxes excluded
in Section 13.1(a) hereof); or
(b) imposes, modifies, or holds applicable, in the determination of a
Lender, any reserve, special deposit, compulsory loan, FDIC insurance or
similar requirement against assets held by, or deposits or other
liabilities in or for the account of, advances or loans by, commitments
made, or other credit extended by, or any other acquisition of funds by, a
Lender or any Applicable Lending Office or Eurodollar Affiliate of that
Lender in respect of Eurodollar Loans;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining the Loans or its Commitment or to reduce any
amount receivable thereunder; then, in any such case, within ten (10) Business
Days after written demand by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall immediately pay to the Administrative
Agent for the account of such Lender, from time to time as specified by such
Lender, such amount or amounts as may be necessary to compensate such Lender or
its Eurodollar Affiliate for any such additional cost incurred or reduced amount
received. Such demand shall be accompanied by a statement as to the amount of
such compensation and include a brief summary of the basis for such demand. Such
statement shall be conclusive and binding for all purposes, absent manifest
error.
13.4. Replacement of Certain Lenders. In the event a Lender (a
"Designated Lender") shall have (i) requested additional compensation from the
Borrower under Section 13.1 or under Section 13.2 or under Section 13.3, (ii)
failed to make its Pro Rata Share of any Loan requested to be made hereby or
(iii) failed to make any Loan at the Eurodollar Rate, the Borrower may, at its
sole election, make written demand on such Designated Lender (with a copy to the
Administrative Agent) for the Designated Lender to assign, and such Designated
Lender shall assign pursuant to one or more duly executed Assignment and
Acceptances to one or more Eligible Assignees which the Borrower or the
Administrative Agent shall have identified for such purpose, all of such
Designated Lender's right and obligations under this Agreement, the Notes and
the other Loan Documents (including, without limitation, its Commitment and all
Loans owing to it) in accordance with Section 14.1. All out-of-pocket expenses
incurred by the Administrative Agent in connection with the foregoing shall be
for the sole account of the Borrower and shall constitute Obligations hereunder.
In no event shall Borrower's election under the provisions of this Section 13.4
affect its obligation to pay the additional compensation required under either
Section 13.1, Section 13.2 or Section 13.3.
13.5. Mitigation. Each Lender shall notify the Borrower of any event
occurring after the date of this Agreement entitling such Lender to compensation
under Sections 13.1, 13.2 or 13.3 as promptly as practicable, but in any event,
within 45 days, after such Lender obtains actual knowledge thereof; provided
that (i) if any Lender fails to give such notice within 45 days after it obtains
actual knowledge of such an event, such Lender shall, with respect to
compensation payable pursuant to Sections 13.1, 13.2 or 13.3 in respect of any
costs resulting from such event, only be entitled to payment under Sections
13.1, 13.2 or 13.3 for costs incurred from and after the date 45 days prior to
the date that such Lender does give such notice and (ii) each Lender will
designate a different Applicable Lending Office for the Loans of such Lender
affected by such event if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the reasonable judgment of
such Lender, be disadvantageous to such Lender.
ARTICLE XIV
MISCELLANEOUS
14.1. Assignments and Participations.
(a) Assignments. No assignments or participations of any Lender's
rights or obligations under this Agreement shall be made except in accordance
with this Section 14.1. Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all of its rights and obligations with respect to the Loans) in accordance with
the provisions of this Section 14.1.
(b) Limitations on Assignments. For so long as no Event of Default has
occurred and is continuing, each assignment shall be subject to the following
conditions: (i) each assignment shall be of a constant, and not a varying,
ratable percentage of all of the assigning Lender's rights and obligations under
this Agreement and, in the case of a partial assignment, shall be in a minimum
principal amount of $5,000,000 (and the assignor shall maintain a minimum amount
of $5,000,000 for its own account unless the assignor shall assign or
participate its entire interest), (ii) each such assignment shall be to an
Eligible Assignee, (iii) each assignment shall be subject to the reasonable
approval of the Agent and the Borrower, and (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance. Upon the
occurrence and continuance of an Event of Default, none of the foregoing
restrictions on assignments shall apply, provided, however, that while an Event
of Default (other than an Event of Default that shall have required that the
Administrative Agent shall have delivered a notice of the underlying default)
shall be continuing but prior to acceleration of the Loans, the applicable
Lender shall give the Borrower five (5) days' written notice by telecopy of its
intention to assign any or all of its interest in this Agreement. Upon such
execution, delivery, acceptance and recording in the Register, from and after
the effective date specified in each Assignment and Acceptance and agreed to by
the Administrative Agent, (A) the assignee thereunder shall, in addition to any
rights and obligations hereunder held by it immediately prior to such effective
date, if any, have the rights and obligations hereunder that have been assigned
to it pursuant to such Assignment and Acceptance and shall, to the fullest
extent permitted by law, have the same rights and benefits hereunder as if it
were an original Lender hereunder, (B) the assigning Lender shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of such assigning Lender's
rights and obligations under this Agreement, the assigning Lender shall cease to
be a party hereto) and (C) the Borrower shall execute and deliver to the
assignee thereunder a Note evidencing its obligations to such assignee with
respect to the Loans.
(c) The Register. The Administrative Agent shall maintain at its
address referred to in Section 14.8 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register (the "Register") for the
recordation of the names and addresses of the Lenders, the Commitment of, and
the principal amount of the Loans under the Commitments owing to, each Lender
from time to time and whether such Lender is an original Lender or the assignee
of another Lender pursuant to an Assignment and Acceptance. The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Administrative Agent and the other Lenders and each
other party to a Loan Document may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) Fee. Upon its receipt of an Assignment and Acceptance executed by
the assigning Lender and an Assignee and a processing and recordation fee of
$3,500 (payable by the assignee to the Administrative Agent), the Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in
compliance with this Agreement and in substantially the form of EXHIBIT A
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and the other Lenders.
(e) Participations. Each Lender may sell participations to one or more
other financial institutions in or to all or a portion of its rights and
obligations under and in respect of any and all facilities under this Agreement
(including, without limitation, all or a portion of any or all of its Commitment
hereunder and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, (iv) each participation
shall be in a minimum amount of $5,000,000, and (v) such participant's rights to
agree or to restrict such Lender's ability to agree to the modification, waiver
or release of any of the terms of the Loan Documents, to consent to any action
or failure to act by any party to any of the Loan Documents or any of their
respective Affiliates, or to exercise or refrain from exercising any powers or
rights which any Lender may have under or in respect of the Loan Documents,
shall be limited to the right to consent to (A) increase in the Commitment of
the Lender from whom such participant purchased a participation, (B) reduction
of the principal of, or rate or amount of interest on the Loans subject to such
participation (other than by the payment or prepayment thereof), (C)
postponement of any date fixed for any payment of principal of, or interest on,
the Loan(s) subject to such participation and (D) release of any guarantor of
the Obligations.
(f) Information Regarding the Borrower. Any Lender may, subject to the
provisions of Section 14.22, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 14.1, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower or its Subsidiaries furnished to such
Lender by the Administrative Agent or by or on behalf of the Borrower.
(g) Payment to Participants. Anything in this Agreement to the contrary
notwithstanding, in the case of any participation, all amounts payable by the
Borrower under the Loan Documents shall be calculated and made in the manner and
to the parties required hereby as if no such participation had been sold.
(h) Lenders' Creation of Security Interests. Notwithstanding any other
provision set forth in this Agreement, any Lender may at any time create a
security interest in all or any portion of its rights under this Agreement
(including, without limitation, Obligations owing to it and any Note held by it)
in favor of any Federal Reserve bank in accordance with Regulation A of the
Federal Reserve Board.
14.2. Expenses.
(a) Generally. The Borrower agrees promptly upon demand to pay, or
reimburse the Administrative Agent for the reasonable fees, expenses and
disbursements of Skadden, Arps, Slate, Meagher & Flom LLP (but not of other
legal counsel) and for all other reasonable out-of-pocket costs and expenses
incurred by the Administrative Agent in connection with (i) the preparation,
negotiation, and execution of the Loan Documents; (ii) the preparation,
negotiation, execution and interpretation of this Agreement (including, without
limitation, the satisfaction or attempted satisfaction of any of the conditions
set forth in Article VI), the Loan Documents, and the making of the Loans
hereunder; (iii) any amendments, consents, waivers, assignments, restatements,
or supplements to any of the Loan Documents and the preparation, negotiation,
and execution of the same; and (iv) any other amendments, modifications,
agreements, assignments, restatements or supplements to any of the Loan
Documents requested by Borrower and the preparation, negotiation, and execution
of the same.
(b) After Default. The Borrower further agrees to pay or reimburse the
Administrative Agent and each of the Lenders upon demand for all reasonable
out-of-pocket costs and expenses, including, without limitation, reasonable
attorneys' fees (including allocated costs of internal counsel and costs of
settlement) incurred by the such entity after the occurrence and during the
continuance of an Event of Default (i) in enforcing any Loan Document or
Obligation, the collection of any Obligation or exercising or enforcing any
other right or remedy available by reason of such Event of Default; or (ii) in
connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a "work-out" or in any insolvency
or bankruptcy proceeding; (iii) in commencing, defending or intervening in any
litigation or in filing a petition, complaint, answer, motion or other pleadings
in any legal proceeding relating to the Obligations, a Project, any of the
Consolidated Businesses and related to or arising out of the transactions
contemplated hereby or by any of the other Loan Documents; and (iv) in taking
any other action in or with respect to any suit or proceeding (bankruptcy or
otherwise) described in clauses (i) through (iii) above.
14.3. Indemnity. The Borrower further agrees (a) to defend, protect,
indemnify, and hold harmless the Administrative Agent and each and all of the
other Lenders and each of their respective officers, directors, employees,
attorneys and agents (collectively, the "Indemnitees") from and against any and
all liabilities, obligations, losses (other than loss of profits), damages,
penalties, actions, judgments, suits, claims, reasonable costs, reasonable
expenses and reasonable disbursements (excluding any taxes and including,
without limitation, the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or judicial
proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees in any
manner relating to or arising out of (i) this Agreement or the other Loan
Documents, the making of the Loans hereunder, the use or intended use of the
proceeds of the Loans hereunder, or any of the other transactions contemplated
by the Loan Documents, or (ii) any Liabilities and Costs relating to violation
of any Environmental, Health or Safety Requirements of Law, the past, present or
future operations of the Borrower, any of its Subsidiaries or any of their
respective predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective Property of the
Borrower or any of its Subsidiaries, the presence of asbestos-containing
materials at any respective Property of the Borrower or any of its Subsidiaries,
or the Release or threatened Release of any Contaminant into the environment
(collectively, the "Indemnified Matters"); provided, however, the Borrower shall
have no obligation to an Indemnitee hereunder with respect to Indemnified
Matters caused by or resulting from the willful misconduct or gross negligence
of such Indemnitee, as determined by a court of competent jurisdiction in a
non-appealable final judgment; and (b) not to assert any claim against any of
the Indemnitees, on any theory of liability, for consequential or punitive
damages arising out of, or in any way in connection with, the Commitments, the
Credit Obligations, or the other matters governed by this Agreement and the
other Loan Documents. To the extent that the undertaking to indemnify, pay and
hold harmless set forth in the preceding sentence may be unenforceable because
it is violative of any law or public policy, the Borrower shall contribute the
maximum portion which it is permitted to pay and satisfy under applicable law,
to the payment and satisfaction of all Indemnified Matters incurred by the
Indemnitees.
14.4. Change in Accounting Principles. If any change in the accounting
principles used in the preparation of the most recent financial statements
referred to in Sections 8.1 or 8.2 are hereafter required or permitted by the
rules, regulations, pronouncements and opinions of the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) and are adopted by the
Company or the Borrower as applicable, with the agreement of its independent
certified public accountants and such changes result in a change in the method
of calculation of any of the covenants, standards or terms found in Article X,
the parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating compliance with such covenants, standards and terms
by the Borrower shall be the same after such changes as if such changes had not
been made; provided, however, no change in GAAP that would affect the method of
calculation of any of the covenants, standards or terms shall be given effect in
such calculations until such provisions are amended, in a manner satisfactory to
the Administrative Agent and the Borrower, to so reflect such change in
accounting principles.
14.5. Intentionally Omitted.
14.6. Ratable Sharing. The Lenders agree among themselves that (i) with
respect to all amounts received by them which are applicable to the payment of
the Obligations (excluding the costs and fees described in Sections 3.1(g),
5.2(f), and 5.3 and Article XIII) equitable adjustment will be made so that, in
effect, all such amounts will be shared among them ratably in accordance with
their Pro Rata Shares, whether received by voluntary payment, by the exercise of
the right of setoff or banker's lien, by counterclaim or cross-action or by the
enforcement of any or all of the Obligations (excluding the costs and fees
described in Sections 3.1(g), 5.2(f), and 5.3 and Article XIII), (ii) if any of
them shall by voluntary payment or by the exercise of any right of counterclaim,
setoff, banker's lien or otherwise, receive payment of a proportion of the
aggregate amount of the Obligations held by it, which is greater than the amount
which such Lender is entitled to receive hereunder, the Lender receiving such
excess payment shall purchase, without recourse or warranty, an undivided
interest and participation (which it shall be deemed to have done simultaneously
upon the receipt of such payment) in such Obligations owed to the others so that
all such recoveries with respect to such Obligations shall be applied ratably in
accordance with their Pro Rata Shares; provided, however, that if all or part of
such excess payment received by the purchasing party is thereafter recovered
from it, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such party to the extent necessary to
adjust for such recovery, but without interest except to the extent the
purchasing party is required to pay interest in connection with such recovery.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 14.6 may, to the fullest extent permitted by
law, exercise all its rights of payment with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower, in the amount
of such participation.
14.7. Amendments and Waivers.
(a) General Provisions. Unless otherwise provided for or required in
this Agreement, no amendment or modification of any provision of this Agreement
or any of the other Loan Documents shall be effective without the written
agreement of the Requisite Lenders (which the Requisite Lenders shall have the
right to grant or withhold in their sole discretion) and the Borrower; provided,
however, that the Borrower's agreement shall not be required for any amendment
or modification of Sections 12.1 through 12.8 (other than Section 12.7). In the
event that the Administrative Agent shall request the agreement of the Lenders
to any amendment, modification or waiver, if any Lender shall fail to respond to
any such request within fifteen (15) days after receipt of such request, such
Lender's approval thereto shall be deemed to have been given; provided, however,
that such request shall state, in capital letters that "FAILURE TO RESPOND TO
THIS REQUEST WITHIN FIFTEEN (15) DAYS AFTER RECEIPT, SHALL BE DEEMED CONSENT TO
THE ENCLOSED REQUEST". No termination or waiver of any provision of this
Agreement or any of the other Loan Documents, or consent to any departure by the
Borrower therefrom, shall be effective without the written concurrence of the
Requisite Lenders, which the Requisite Lenders shall have the right to grant or
withhold in their sole discretion. All amendments, waivers and consents not
specifically reserved to the Administrative Agent or the other Lenders in
Section 14.7(b), 14.7(c), and in other provisions of this Agreement shall
require only the approval of the Requisite Lenders. Any waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which it was given. No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances.
(b) Amendments, Consents and Waivers by Affected Lenders. Any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender affected thereby as described below:
(i) waiver of any of the conditions specified in Sections 6.1 (except
with respect to a condition based upon another provision of this Agreement,
the waiver of which requires only the concurrence of the Requisite
Lenders),
(ii) increase in the amount of such Lender's Commitment,
(iii) reduction of the principal of, rate or amount of interest on the
Loans, or any fees or other amounts payable to such Lender (other than by
the payment or prepayment thereof), and
(iv) postponement or extension of any date (other than the Termination
Date postponement or extension of which is governed by Section 14.7(c)(i))
fixed for any payment of principal of, or interest on, the Loans or any
fees or other amounts payable to such Lender (except with respect to any
modifications of the application provisions relating to prepayments of
Loans and other Obligations which are governed by Section 4.2(b)).
(c) Amendments, Consents and Waivers by All Lenders. Any amendment,
modification, termination, waiver or consent with respect to any of the
following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender:
(i) postponement of the Termination Date, or increase in the Maximum
Revolving Credit Amount to any amount in excess of $75,000,000,
(ii) change in the definition of Requisite Lenders or in the aggregate
Pro Rata Share of the Lenders which shall be required for the Lenders or
any of them to take action hereunder or under the other Loan Documents,
(iii) amendment of Section 14.6 or this Section 14.7,
(iv) assignment of any right or interest in or under this Agreement or
any of the other Loan Documents by the Borrower,
(v) waiver of any Event of Default under Section 11.1(a), Section
11.1(f) or Section 11.1(g), and
(vi) amendment or release of the Guaranty.
(d) Administrative Agent Authority. Subject to the second succeeding
sentence of this subsection (d), the Administrative Agent may, but shall have no
obligation to, with the written concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender. Notwithstanding
anything to the contrary contained in this Section 14.7, no amendment,
modification, waiver or consent shall affect the rights or duties of the
Administrative Agent under this Agreement and the other Loan Documents, unless
made in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action. Notwithstanding anything herein to
the contrary, in the event that the Borrower shall have requested, in writing,
that any Lender agree to an amendment, modification, waiver or consent with
respect to any particular provision or provisions of this Agreement or the other
Loan Documents, and such Lender shall have failed to state, in writing, that it
either agrees or disagrees (in full or in part) with all such requests (in the
case of its statement of agreement, subject to satisfactory documentation and
such other conditions it may specify) within fifteen (15) days after such
request, then such Lender hereby irrevocably authorizes the Administrative Agent
to agree or disagree, in full or in part, and in the Administrative Agent's sole
discretion, to such requests on behalf of such Lender as such Lenders'
attorney-in-fact and to execute and deliver any writing approved by the
Administrative Agent which evidences such agreement as such Lender's duly
authorized agent for such purposes.
14.8. Notices. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served, sent by facsimile transmission or by
courier service or United States certified mail and shall be deemed to have been
given when delivered in person or by courier service, upon receipt of a
facsimile transmission, or four (4) Business Days after deposit in the United
States mail with postage prepaid and properly addressed. Notices to the
Administrative Agent pursuant to Articles II, IV or XII shall not be effective
until received by the Administrative Agent. For the purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is delivered
as provided in this Section 14.8) shall be as set forth below each party's name
on the signature pages hereof or the signature page of any applicable Assignment
and Acceptance, or, as to each party, at such other address as may be designated
by such party in a written notice to all of the other parties to this Agreement.
14.9. Survival of Warranties and Agreements. All representations and
warranties made herein and all obligations of the Borrower in respect of taxes,
indemnification and expense reimbursement shall survive the execution and
delivery of this Agreement and the other Loan Documents, the making and
repayment of the Loans and, in the case of any Lender that may assign any
interest in its Commitment or Loans hereunder, shall survive the making of such
assignment, notwithstanding that such assigning Lender may cease to be a
"Lender" hereunder, and, except for the representations and warranties, the
termination of this Agreement other than any of the foregoing set forth in
Section 13.1 or Section 13.2 or Section 13.3 or Section 5.2(f) shall survive for
thirty (30) days after termination of this Agreement.
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of the Administrative Agent or any other Lender in
the exercise of any power, right or privilege under any of the Loan Documents
shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or
of any other right, power or privilege. All rights and remedies existing under
the Loan Documents are cumulative to and not exclusive of any rights or remedies
otherwise available.
14.11. Payments Set Aside. To the extent that the Borrower makes a
payment or payments to the Administrative Agent or any other Lender or any such
Person exercises its rights of setoff, and such payment or payments or the
proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid to a trustee, receiver or any other party, then to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all right and remedies therefor, shall be revived and continued in full
force and effect as if such payment had not been made or such enforcement or
setoff had not occurred.
14.12. Severability. In case any provision in or obligation under this
Agreement or the other Loan Documents shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
14.13. Headings. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement or be given any substantive effect.
14.14. Governing Law. THIS AGREEMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS
PRINCIPLES.
14.15. Limitation of Liability. No claim may be made by any Lender, the
Administrative Agent, or any other Person against any Lender (acting in any
capacity hereunder) or the Affiliates, directors, officers, employees, attorneys
or agents of any of them for any consequential or punitive damages in respect of
any claim for breach of contract or any other theory of liability arising out of
or related to the transactions contemplated by this Agreement, or any act,
omission or event occurring in connection therewith; and each Lender and the
Administrative Agent hereby waives, releases and agrees not to sue upon any such
claim for any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.
14.16. Successors and Assigns. This Agreement and the other Loan
Documents shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and permitted assigns of the Lenders. Except as otherwise
provided in Section 10.7, the rights hereunder of the Borrower, or any interest
therein, may not be assigned without the written consent of all Lenders.
14.17. Certain Consents and Waivers of the Borrower.
(a) Personal Jurisdiction. (i) EACH OF THE AGENT, THE LENDERS AND THE
BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY,
TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT
SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING JURISDICTION OVER APPEALS OF
MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR PROCEEDING ARISING OUT OF,
CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT,
EQUITY OR OTHERWISE, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH
OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF
THE AGENTS, THE LENDERS AND THE BORROWER AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
EACH OF THE AGENTS, THE LENDERS AND THE BORROWER WAIVES IN ALL DISPUTES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(ii) THE BORROWER AGREES THAT THE ADMINISTRATIVE AGENT SHALL HAVE THE
RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION
NECESSARY OR APPROPRIATE TO ENABLE THE ADMINISTRATIVE AGENT AND THE OTHER
LENDERS TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE
ADMINISTRATIVE AGENT OR ANY OTHER LENDER. THE BORROWER WAIVES ANY OBJECTION THAT
IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE ADMINISTRATIVE AGENT OR
ANY LENDER MAY COMMENCE A PROCEEDING DESCRIBED IN THIS SECTION.
(b) Service of Process. THE BORROWER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE PROCESS AGENT OR THE BORROWER'S NOTICE ADDRESS SPECIFIED
BELOW, SUCH SERVICE TO BECOME EFFECTIVE UPON RECEIPT. THE BORROWER EACH
IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY JURISDICTION SET
FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT OR
THE OTHER LENDERS TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY
OTHER JURISDICTION.
(c) WAIVER OF JURY TRIAL. EACH OF THE AGENT AND THE OTHER LENDERS AND
THE BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
14.18. Counterparts; Effectiveness; Inconsistencies. This Agreement and
any amendments, waivers, consents, or supplements hereto may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective against the Borrower and
each Agent and Lender on the Closing Date. This Agreement and each of the other
Loan Documents shall be construed to the extent reasonable to be consistent one
with the other, but to the extent that the terms and conditions of this
Agreement are actually inconsistent with the terms and conditions of any other
Loan Document, this Agreement shall govern.
14.19. Limitation on Agreements. All agreements between the Borrower,
the Administrative Agent and each Lender in the Loan Documents are hereby
expressly limited so that in no event shall any of the Loans or other amounts
payable by the Borrower under any of the Loan Documents be directly or
indirectly secured (within the meaning of Regulation U) by Margin Stock.
14.20. Disclaimers. The Administrative Agent and the other Lenders
shall not be liable to any contractor, subcontractor, supplier, laborer,
architect, engineer, tenant or other party for services performed or materials
supplied in connection with any work performed on the Projects, including any TI
Work. The Administrative Agent and the other Lenders shall not be liable for any
debts or claims accruing in favor of any such parties against the Borrower or
others or against any of the Projects. the Borrower is not and shall not be an
agent of the Administrative Agent or the other Lenders for any purposes and none
of the Lenders,, or the Administrative Agent shall be deemed partners or joint
venturers with Borrower. None of the Administrative Agent or the other Lenders
shall be deemed to be in privity of contract with any contractor or provider of
services to any Project, nor shall any payment of funds directly to a contractor
or subcontractor or provider of services be deemed to create any third party
beneficiary status or recognition of same by any of the Administrative Agent or
the other Lenders and the Borrower agrees to hold the Administrative Agent and
the other Lenders harmless from any of the damages and expenses resulting from
such a construction of the relationship of the parties or any assertion thereof.
14.21. Entire Agreement. This Agreement, taken together with all of the
other Loan Documents, embodies the entire agreement and understanding among the
parties hereto and supersedes all prior agreements and understandings, written
and oral, relating to the subject matter hereof.
14.22. Confidentiality. Each of the Administrative Agent and the
Lenders agrees to keep confidential all non-public information provided to it by
the Borrower pursuant to this Agreement that is designated by the Borrower as
confidential; provided that nothing herein shall prevent the Agents or the
Lenders from disclosing any such information (a) to the Agents, any other Lender
or any Affiliate of any Lender (provided such Affiliate is made aware of the
confidentiality of such information and agrees to keep such information
confidential), (b) to any Assignee, Participant or prospective Assignee or
Participant (provided such Person is made aware of the confidentiality of such
information and agrees to keep such information confidential), (c) to the
employees, directors, agents, attorneys, accountants and other professional
advisors of any Lender, Assignee, Participant, prospective Assignee or
Participant who are advised of the provisions of this Section, (d) upon the
request or demand of any Governmental Authority having or asserting jurisdiction
over either Agent or any Lender, (e) in response to any order of any court or
other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection with the
exercise of any remedy hereunder or under any other Loan Document or (i) upon
the advice of counsel that such disclosure is required by law.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
BORROWER:
---------
RECKSON OPERATING PARTNERSHIP, L.P.
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.
By: ____________________________________
Name:
Title:
Notice Address:
Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, New York 11747
Telephone: 516-694-6900
Telecopy: 516-622-6786
Attention: Michael Maturo
Chief Financial Officer
<PAGE>
ADMINISTRATIVE AGENT,
ARRANGER AND LENDER:
THE CHASE MANHATTAN BANK
By: ______________________________________
Name: Marc E. Costantino
Title: Vice President
Notice Address, Domestic and
Eurodollar Lending Office:
The Chase Manhattan Bank
1 Chase Manhattan Plaza
Loan and Agency Services, 8th floor
New York, New York 10081
Attention: Thierry LeJouan
Telecopy: 212-552-5701
Reference:
with copy of all Notices to:
---------------------------
The Chase Manhattan Bank
380 Madison Avenue, 11th floor
New York, New York 10017
Attention: Joanne Avery
Telecopy: 212-270-9541
Reference:
Pro Rata Share: 20%
Commitment: $15,000,000
<PAGE>
DOCUMENTATION AGENT
AND LENDER:
ING (U.S.) CAPITAL LLC
By: ING (U.S.) Capital Financial
Holdings LLC, its sole member
By:________________________
Name: Thomas R. Hobbis
Title: Vice President
Pro Rata Share: 33.33%
Commitment: $25,000,000
<PAGE>
LENDER: BAYERISCHE LANDESBANK, CAYMAN
ISLANDS BRANCH
By:________________________
Name:
Title:
By:________________________
Name:
Title:
Pro Rata Share: 26.67%
Commitment: $20,000,000
<PAGE>
LENDER: EUROPEAN AMERICAN BANK
By:________________________
Name:
Title:
Pro Rata Share: 10%
Commitment: $7,500,000
<PAGE>
LENDER: LASALLE BANK NATIONAL ASSOCIATION
By:________________________
Name:
Title:
Pro Rata Share: 10%
Commitment: $7,500,000
<PAGE>
LIST OF EXHIBITS AND SCHEDULES
------------------------------
Exhibit A-- Form of Assignment and Acceptance
Exhibit B-- Form of Note
Exhibit C-- Form of Notice of Borrowing
Exhibit D-- Form of Notice of Conversion/Continuation
Exhibit E-- List of Closing Documents
Exhibit F-- Form of [Quarterly/Annual] Compliance Certificate to Accompany
Reports
Exhibit G-- Sample Calculations of Financial Covenants
Schedule 1.1.1 -- Existing Permitted Liens
Schedule 1.1.2 -- Permitted Securities Options
Schedule 6.1(d)-- Equity Changes
Schedule 7.1-A -- Organizational Documents
Schedule 7.1-C -- Corporate Structure; Outstanding Capital Stock and
Partnership Interests; Partnership Agreement
Schedule 7.1-H -- Indebtedness for Borrowed Money; Contingent Obligations
Schedule 7.1-I -- Pending Actions
Schedule 7.1-P -- Environmental Matters
Schedule 7.1-Q -- ERISA Matters
Schedule 7.1-R -- Securities Activities
Schedule 7.1-T -- Insurance Policies
EXHIBIT A
to
Second Amended and Restated Credit Agreement
dated as of December 17, 1999
FORM OF ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE dated as of 199_, among [Names of
Assignor Lenders] (each, an "Assignor" and collectively, the "Assignors") and
I , (etc.) (each, an "Assignee" and collectively, the "Assignees").
PRELIMINARY STATEMENTS
A. Reference is made to the Second Amended and Restated Credit
Agreement dated as of December 17, 1999 (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the "Credit
Agreement") among Reckson Operating Partnership, L.P., the institutions from
time to time party thereto as Lenders, ING (U.S.) Capital LLC (formerly known
as ING (U.S.) Capital Corporation), as Documentation Agent, and The Chase
Manhattan Bank, as Arranger and Administrative Agent. Capitalized terms used
herein and not otherwise defined herein are used as defined in the Credit
Agreement.
B. The Assignors are Lenders under the Credit Agreement and each
desires to sell and assign to the Assignees a portion of such Assignor's
existing Commitment, as set forth on Schedule 2 attached hereto (each, an
"Assigned Commitment") in the aggregate amount of $_________ of the
Commitments (the "Aggregate Assigned Amount"), and each Assignee desires to
purchase and assume from each Assignor, on terms and conditions set forth
below, an interest in such Assignor's respective Assigned Commitment and
related outstanding Loans (the "Assigned Percentages"), together with the
Assignors I respective rights and obligations under the Credit Agreement with
respect to the Assigned Percentages, such that each Assignee shall, from and
after the Effective Date (as defined below), become a Lender under the Credit
Agreement with the respective Commitment and Pro Rata Share listed on the
signature pages attached hereto.
NOW, THEREFORE, for or good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Assignors and the
Assignees hereby agree as follows:
1. In consideration of the payments of each Assignee to each
Assignor, to be made by wire transfer to the Administrative Agent of
immediately available funds on the Effective Date in accordance with Schedule
3 attached hereto, each Assignor hereby sells and assigns to each Assignee,
and each Assignee hereby purchases and assumes from such Assignor, the
Assigned Percentage set forth on Schedule 1 attached hereto, together with
such Assignor's rights and obligations under the Credit Agreement and all of
the other Loan Documents with respect to the Assigned Percentages as of the
date hereof (after giving effect to any other assignments thereof made prior
to the date hereof, whether or not such assignments have become effective, but
without giving effect to any other assignments thereof also made on the date
hereof), including, without limitation, the obligation to make Loans and the
obligation to participate in Letters of Credit.
2. Each Assignor (i) represents and warrants that as of the date
hereof its Commitment is as set forth on Schedule 2 attached hereto (in each
case, after giving effect to any other assignments thereof made prior to the
date hereof, whether or not such assignments have become effective, but
without giving effect to any other assignments thereof made as of the date
hereof); (ii) represents and warrants that it is the legal and beneficial
owner of the interest being assigned by it hereunder and that such interest is
free and clear of any adverse claim and that such Assignor is legally
authorized to enter into this Assignment and Acceptance; (iii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or any of the other Loan Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement or any of the other Loan Documents or any other instrument or
document furnished pursuant thereto; and (iv) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any
obligations under the Credit Agreement or any of the other Loan Documents or
any other instrument or document furnished pursuant thereto.
3. Each Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance;
(iii) agrees that it shall have no recourse against the Assignor with respect
to any matter relating to the Credit Agreement, any of the other Loan
Documents, or this Assignment and Acceptance (except with respect to the
representations or warranties made by the Assignors in clauses (i) and _(ii) of
paragraph 2 above) ; (iv) agrees that it will, independently and without
reliance upon the Administrative Agent, the Assignors or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (v) confirms that it is an Eligible Assignee; (vi)
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under the Credit Agreement as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (vii) agrees that it will perform
in accordance with their terms all of the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender; (viii)
confirms that, to the best of its knowledge, as of the date hereof, it is not
subject to any law, regulation or guideline from any central bank or other
Governmental Authority or quasi-governmental authority exercising
jurisdiction, power or control over it, which would subject the Borrower to
the payment of additional compensation under Section 13.2 or under Section
13.3 of the Credit Agreement; (ix) specifies as its Domestic Lending Office
(and address for notices) and Eurodollar Lending Office(s) the offices set
forth beneath its name on the signature pages hereof; (x) if such Assignee is
organized under the laws of a jurisdiction outside the United States, attaches
the forms described in Section 13.1(d) of the Credit Agreement or any
successor forms prescribed by the Internal Revenue Service of the United
States certifying as to the Assignee's exemption from United States
withholding taxes with respect to all payments to be made to the Assignee
under the Credit Agreement and the Notes or such other documents as are
necessary to indicate that all such payments are subject to such rates at a
rate reduced by an applicable tax treaty; and (xi) represents and warrants
that none of the funds, monies, assets or other consideration being used to
purchase pursuant to this Assignment and Acceptance are "plan assets" as
defined under ERISA and that its rights, benefits, and interests in and under
the Loan Documents will not be "plan assets" under ERISA.
4. Following the execution of this Assignment and Acceptance by each
of the Assignors and the Assignees, it will be delivered to the Administrative
Agent for acceptance and recording by the Administrative Agent. The effective
date of this Assignment and Acceptance shall be 1 199- (the "Effective Date").
5. As of the Effective Date, (i) each Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii)
each Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement with respect to its Assigned Commitment.
6. From and after the Effective Date, the Administrative Agent shall
make all payments under the Credit Agreement and the Notes in respect of the
Aggregate Assigned Amount (including, without limitation, all payments of
principal, interest and fees with respect thereto) to the appropriate
Assignees. The Administrative Agent shall make all appropriate adjustments in
payments under the Credit Agreement and the Notes for periods prior to the
Effective Date.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. This Assignment and Acceptance may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
(9. The Assignor represents and warrants that it has given the
Borrower five (5) days written notice by telecopy of its intention to enter
into this Assignment and Acceptance in accordance with the provisions of
Section 14.1(bl of the Credit Agreement.]-(1)
- ------------
(1) Applies only during the continuance of an Event of Default and prior to
an acceleration of the Loans.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
ASSIGNORS: ________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
Notice Address, Domestic
Lending Office and Eurodollar
Lending Office:
Adjusted Pro Rata Share: _____%
Adjusted Commitment: $_________
ASSIGNEES: ________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
Notice Address, Domestic
Lending Office and Eurodollar
Lending Office:
Adjusted Pro Rata Share: _____%
Adjusted Commitment: $_________
Accepted as of this ___ day
of ____________, ____
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:_______________________
Name:
Title:
By:_______________________
Name:
Title:
Consented and agreed to
as of this ___ day of __________, ____
RECKSON OPERATING PARTNERSHIP, L.P.,-(2)
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.,
a Maryland corporation, its
general partner
By: _____________________________
Name:
Title:
- -----------------
(2) Consent not required if the circumstances described in
Section 14. 1 (b) of the Credit Agreement have occurred and
are continuing.
SCHEDULE I
Assignee Assigned New Pro
-------- Percentage Rata Share
---------- ----------
SCHEDULE 2
EXISTING COMMITMENTS AND
PRO RATA SHARES OF ASSIGNORS
Assignor Existing Existing Pro Assigned
Commitment Rata Share Commitment
---------- ---------- ----------
SCHEDULE 3
PAYMENTS(3)
Lender Facility Funding Fee to
------ -------- ------- ------
Fee Amount/Repay- Administrative
--- ------------- --------------
ment to Assignors Agent(4)
----------------- --------
- ------------------
(3) Payments to the Lenders are shown without parentheses; payments from the
Lenders to the Administrative Agent, on its own behalf or on behalf of the
Lenders, are shown in parentheses.
(4) Pursuant to Section 14.1 (d) of the Credit Agreement.
EXHIBIT B
to
Second Amended and Restated Credit Agreement,
dated as of December 17, 1999
FORM OF PROMISSORY NOTE
- ------------------------------------------------------------------------------
$_,000,000 ______________ New York, New York
_________ __, 1999
For value received, Reckson Operating Partnership, L.P., a Delaware
limited partnership (the "Borrower"), promises to pay to the order of
____________________ (the "Lender"), the unpaid principal amount of each Loan
made by the Lender to the Borrower pursuant to the Credit Agreement referred
to below on the Termination Date (as such term is defined in the Credit
Agreement). The Borrower promises to pay interest on the unpaid principal
amount of each such Loan on the dates and at the rate or rates provided for in
the Credit Agreement. All such payments of principal and interest shall be
made in lawful money of the United States in Federal. or other immediately
available funds at the office of the Administrative Agent (as such term is
defined in the Credit Agreement).
All Loans made by the Lender, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Lender and, if the Lender so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding may be endorsed by
the Lender on the schedule attached hereto, or on a continuation of such
schedule attached to and made a part hereof; provided that the failure of the
Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Amended and
Restated Credit Agreement, dated as of December 17, 1999, among the Borrower,
the institutions from time to time party thereto, ING (U.S.) Capital LLC
(formerly known as ING (U.S.) Capital Corporation), as Documentation Agent,
and The Chase Manhattan Bank, as Arranger and Administrative Agent (as the
same may be amended, supplemented, restated, or otherwise modified from time
to time, the "Credit Agreement"). Terms defined in the Credit Agreement are
used herein with the same meanings. Reference is made to the Credit Agreement
for provisions for the prepayment hereof and the acceleration of the maturity
hereof upon the happening of certain events.
THIS NOTE SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
BORROWER:
RECKSON OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.,
a Maryland corporation, its
general partner
By: _________________________
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
- ------------------------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
EXHIBIT C
to
Second Amended and Restated Credit Agreement,
dated as of December 17, 1999
------------------------------------------------------------------
FORM OF NOTICE OF BORROWING
__________, 199__
The Chase Manhattan Bank, as Administrative Agent
for the Lenders party to the Credit Agreement
referred to below
270 Park Avenue
New York, New York 10017
Attention: Marc Costantino
Ladies and Gentlemen:
Reference is hereby made to that certain Amended and Restated Credit
Agreement dated as of December 17, 1999 (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among Reckson Operating Partnership, L.P., a Delaware limited partnership (the
"Borrower"), the institutions from time to time party thereto as Lenders, ING
(U.S.) Capital LLC (formerly known as ING (U.S.) Capital Corporation), as
Documentation Agent, and The Chase Manhattan Bank, as Arranger and
Administrative Agent.
The Borrower hereby gives you notice, irrevocably, pursuant to
Section 2.1(b) of the Credit Agreement that the Borrower hereby requests a
Borrowing under the Credit Agreement and, in that connection, sets forth below
the information relating to such Borrowing (the "Proposed Borrowing") as
required pursuant to the terms of the Credit Agreement:
The Funding Date (which shall be a Business Day) of the Proposed
Borrowing is _________, 199_.
The amount of the Proposed Borrowing is $______________.(1)
- ---------------------
(1) Such amount must be in a minimum amount of $3,000,000 and in
integral multiples of $500,000 in excess of that amount.
The Credit Availability as of the date of this Notice of Borrowing
is $__________________.
The Proposed Borrowing will be of [Eurodollar Rate Loans] (Base Rate
Loans].
The requested Eurodollar Interest Period for the Proposed Borrowing
is from _________________ and ending _________________ (for a total of _____
months).(2)
- -------------------
(2) To be specified if the Proposed Borrowing is of Eurodollar Rate Loans.
Such Eurodollar Interest Period must comply with the provisions of
Section 5.2(b) of the Credit Agreement.
The Borrower (by its signature below) hereby directs the
Administrative Agent to disburse the proceeds of the Loans comprising the
Proposed Borrowing on the Funding Date therefor as set forth on Schedule 1
attached hereto and made a part hereof, whereupon the proceeds of such Loans
shall be deemed received by or for the benefit of the Borrower.
The Borrower (by its signature below) hereby certifies that the
conditions precedent contained in Section r6.11 r6.21 are satisfied on the
date hereof and will be satisfied on the Funding Date of the Proposed
Borrowing.
RECKSON OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.,
a Maryland corporation,
its general partner
By:_______________________
Name:
Title:
SCHEDULE 1
to
Notice of Borrowing
-------------------
dated ___________, 199_
(Insert disbursement directions]
EXHIBIT D
to
Credit Agreement dated as of December 17, 1999
------------------------------------------------------
FORM OF NOTICE OF CONVERSION/CONTINUATION
___________, 199_
The Chase Manhattan Bank, as Administrative Agent
for the Lenders party to the Credit Agreement
referred to below
380 Madison Avenue
New York, New York 10017
Attention: Marc Costantino
Ladies and Gentlemen:
Reference is hereby made to that certain Amended and Restated Credit
Agreement dated as of December 17, 1999 (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among Reckson Operating Partnership, L.P., a Delaware limited partnership (the
"Borrower"), the institutions from time to time party thereto as Lenders, ING
(U.S.) Capital LLC (formerly known as ING (U.S.) Capital Corporation), as
Documentation Agent, and The Chase Manhattan Bank, as Arranger and
Administrative Agent.
The Borrower by its signature below hereby gives you notice pursuant
to Section 5.1(c) (ii) of the Credit Agreement that the Borrower hereby elects
to(1):
- ----------------------
(1) Include those items that are applicable, completed appropriately for the
circumstances.
1. Convert $_________(2) in aggregate principal amount of Base Rate
Loans from Base Rate Loans to Eurodollar Rate Loans on ___________, 199_(3).
The Eurodollar Interest Period for such Eurodollar Rate Loans is requested to
be _____ month(s).(4)
- --------------------------
(2) Such amount of conversion to or continuation of Eurodollar Rate Loans
must be in a minimum amount of $3,000,000 and in integral multiples of
$500,000 in excess of that amount, except in the case of a conversion into
or a conversion of an entire Borrowing of Non Pro Rata Loans.
(3) Date of conversion must be a Business Day.
(4) Such Eurodollar Interest Period must comply with the provisions of
Section 5.2 (b) of the Credit Agreement.
2. Convert $_________ in aggregate principal amount of Eurodollar
Rate Loans with a current Eurodollar Interest Period ending ___________,
199_(5) to Base Rate Loans.
- ---------------------------
(5) The Conversion of Eurodollar Rate Loans to Base Rate Loans shall be
made on, and only on, the last day of the Eurodollar Interest Period for
such Eurodollar Rate Loans.
3. Continue as Eurodollar Rate Loans $_________(6) in aggregate
principal amount of Eurodollar Rate Loans with a current Eurodollar Interest
Period from ___________ and ending ___________, 199_. The succeeding Eurodollar
Interest period for such Eurodollar Rate Loans is requested to be _________
month(s).(7)
- ---------------------------
(6) See footnote 2.
(7) See footnote 4.
The Borrower by its signature below hereby certifies that on the
date hereof there are no prohibitions under the Credit Agreement to the
requested conversion/continuation, and no such prohibitions will exist on the
date of the requested conversion/continuation.
RECKSON OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.,
a Maryland corporation,
its general partner
By:__________________________
Name:
Title:
EXHIBIT E
to
Credit Agreement dated as of December 17, 1999
- -----------------------------------------------------------------------------
LIST OF CLOSING DOCUMENTS
$75,000,000
SECOND AMENDED AND RESTATED CREDIT FACILITY
among
RECKSON OPERATING PARTNERSHIP, L.P.,
THE LENDERS, AND
THE CHASE MANHATTAN BANK
December 17, 1999
LIST OF CLOSING DOCUMENTS(1)
- -----------------------
(1) Capitalized terms used herein but not otherwise defined herein have
the meanings assigned to such terms in the Credit Agreement.
1. Amended and Restated Credit Agreement (the "Credit Agreement"),
among Reckson Operating Partnership, L.P. (the "Borrower"), certain financial
institutions listed on the signature pages thereof as lenders (collectively
referred to herein, together with their respective successors and assigns, as
the "Lenders"), ING (U.S.) Capital LLC (formerly known as ING (U.S.) Capital
Corporation), as Documentation Agent, and The Chase Manhattan Bank, as
Arranger and Administrative Agent ("Chase")
2. Exhibits and Schedules to the Credit Agreement as described on
Schedule 1 attached hereto.
3. Promissory Notes (the "Notes") executed by the Borrower and
payable to each Lender evidencing the Loans made by such Lender under the
Credit Agreement.
4. Amended and Restated Guaranty Agreement by the Borrower, Reckson
Associates Realty Corp. (the "Company"), and Reckson FS Limited Partnership
("Reckson FS11) for the benefit of Chase.
5. Certificate of the Company dated the Closing Date (a) in its
capacity as general partner of the Borrower certifying (1) the names and true
signatures of the incumbent officers of the Company authorized to sign the
Credit Agreement, the Borrower Notes, and the other Loan Documents on behalf
of the Borrower, (2) the resolutions of the Company's Board of Directors
approving and authorizing the execution, delivery and performance of the
Credit Agreement, the Borrower Notes and all other Loan Documents executed by
the General Partner on behalf of the Borrower, and (3) a copy of the
Partnership Agreement of the Borrower as in effect on the date of such
certification, and (2) a copy of the Certificate of Incorporation of the
Company, together with all amendments thereto, if any, certified by the
Secretary of State of Maryland.
6. Copy of the Certificate of Limited Partnership of the Borrower,
together with all amendments thereto, if any certified by the Secretary of
State of Delaware.
7. Copy of the Articles of Incorporation of the Company, together
with all amendments thereto, if any certified by the Secretary of State of
Maryland.
8. Certificate of Reckson FS, Inc. dated the Closing Date (a) in its
capacity as general partner of Reckson FS certifying (1) the names and true
signatures of the incumbent officers of Reckson FS, Inc. authorized to sign
the Guaranty Agreement on behalf of Reckson FS, (2) the resolutions of Reckson
FS, Inc.'s Board of Directors approving and authorizing the execution,
delivery and performance of the Guaranty Agreement executed by Reckson FS,
Inc. on behalf of the Borrower, and (3) a copy of the Partnership Agreement of
the Reckson FS as in effect on the date of such certification, and (2) a copy
of the Certificate of Incorporation of Reckson FS, Inc., together with all
amendments thereto, if any, certified by the Secretary of State of Delaware.
9. Good Standing Certificates of the Borrower, the Company, Reckson
FS and Reckson FS, Inc.
10. Opinion of Brown & Wood LLP, counsel for the Borrower and the
Company.
11. Notice of Borrowing executed by the Borrower with respect to the
Loans to be made on the Initial Funding Date.
12. Disbursement Direction Authorization executed by the Borrower
pursuant to which Chase is directed to disburse the proceeds of the Loans to
be made on the Initial Funding Date as described therein.
13. Officer's Certificate of the General Partners dated the Initial
Funding Date, signed by the President of the Company, certifying, among other
things, satisfaction of the conditions precedent to funding set forth in
Section 6.1 of the Credit Agreement.
EXHIBIT F
to
Credit Agreement dated as of December 17, 1999
- -----------------------------------------------------------------------------
FORM OF [QUARTERLY /ANNUAL I COMPLIANCE CERTIFICATE TO
ACCOMPANY REPORTS
___________, 199_
The Chase Manhattan Bank, as Administrative Agent
for the Lenders party to the Credit Agreement
referred to below
270 Park Avenue
New York, New York 10017
Attention: Marc Costantino
Ladies and Gentlemen:
Pursuant to Section [ 8. 2 (a) (iii) I [ 8. 2 (b) (iii) I of that
certain Amended and Restated Credit Agreement dated as of December 17, 1999
(as the same may be amended, supplemented, restated or otherwise modified from
time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined) among Reckson Operating Partnership, L.P., a
Delaware limited partnership (the "Borrower"), the institutions from time to
time party thereto as Lenders, ING (U.S.) Capital LLC (formerly known as ING
(U.S.) Capital Corporation), as Documentation Agent, and The Chase Manhattan
Bank, as Arranger and Administrative Agent, the undersigned, _______________,
the ______________ of [Reckson operating Partnership, L.P., a Delaware limited
partnership] [Reckson Associates Realty Corp., a Maryland corporation (the
"Company")), hereby certifies that:
1. The undersigned has reviewed the terms of the Loan Documents, and
has made, or caused to be made under (his/her] supervision, a review in
reasonable detail of the consolidated financial condition of the Company and
its consolidated Subsidiaries during the accounting period covered by the
financial statements identified below. To the best of the undersigned's
knowledge, such review has not disclosed the existence during or at the end of
such accounting period, and as of the date hereof the undersigned does not
have knowledge, of the existence of any condition or event which constitutes
an Event of Default or Potential Event of Default.(1)
- --------------------------
(1) If such condition or event exists or existed, specify (i) the nature
and period of such condition or event and (ii) the action taken, being
taken or proposed to be taken with respect thereto.
2. The financial statements, reports and copies of certain
instruments and documents attached hereto, namely,
A. Compliance Certificate, dated _____________________
B. ______________________, dated _____________________
C. ______________________, dated _____________________
D. ______________________, dated _____________________
are true and complete copies of the aforesaid which constitute part of or
are based upon the customary books and records of the Company, and, to the
best of the undersigned's knowledge and belief, there exist no facts or
circumstances which would have a Material Adverse Effect.
____________________________________
Name:
Title:
EXHIBIT G
SAMPLE CALCULATIONS OF FINANCIAL COVENANTS
Schedule 1.1.1
Existing, Permitted Liens
See Schedule 7.1H - Indebtedness
Schedule 1.1.2
Permitted Securities Options
1. Company
o Articles of Amendment and Restatement of Reckson Associates
Realty Corp. filed with the Maryland Department of Assessments and
Taxation on May 22, 1995.
o 1995 Stock Option Plan.
o 1996 Employee- Stock Option Plan.
o 1997 Stock Option Plans.
o 1998 Stock Option Plans.
o Amended and Restated Agreement of Limited Partnership of
Reckson Operating Partnership, L.P. dated June 2, 1995 (as amended
and supplemented through June 30, 1998).
2. Borrower
o Certificate of Limited Partnership of Reckson Operating
Partnership, L.P. filed with the Secretary of State of Delaware on
September 28, 1994.
o Amended and Restated Agreement of Limited Partnership of
Reckson Operating Partnership, L.P. dated June 2, 1995 (as amended
and supplemented through June 3 )0, 1998).
3. Reckson FS LP
o Amended and Restated Certificate of Limited Partnership filed
with the Secretary of State of Delaware on July 21, 1998.
o Third Amended and Restated Agreement of Limited Partnership
dated July 21, 1998.
Schedule 6.1-D
Equity Changes
Company Borrower
Class B
Common Common
shares units
10/15/99 200,000 -repurchase
10/25/99 230,000 -repurchase
11/11/99 15,000 -repurchase
11/12/99 85,000 -repurchase
11/15/99 100,000 -repurchase
11/19/99 400 -redeemed for cash
Schedule 7.1-A
Borrower's Organizational Documents
1. Reckson Associates Realty Corp.
o Articles of Amendment and Restatement filed with the Maryland
Department of Assessments and Taxation on May 22, 1995.
o Articles Supplementary filed with the Maryland Department of
Assessments and Taxation on April 9, 1998.
2. Reckson Operating Partnership, L.P.
o Certificate of Limited Partnership filed with the Secretary of
State of Delaware on September 28, 1994.
o Amended and Restated Agreement of Limited Partnership dated
June 2, 1995 (as amended on December 6, 1995, Apri1 13, 1998,
June 30, 1998 and June 2, 1999).
3. Reckson Financing LLC
o Certificate of Formation filed with the Secretary of State of
Delaware on July 1, 1998.
o Limited liability company operatin2 a(2reement dated July 7, 1998
4. Reckson FS Limited Partnership.
o Amended and Restated Certificate of Limited Partnership filed
with the Secretary of State of Delaware on July 21, 1998.
o Third Amended and Restated Agreement of Limited Partnership
dated July 21, 1998.
Schedule 7.1-C
Subsidiaries; Ownership of Capital
Stock and Partnership Interests
1. Diagram of Entities
See Exhibit A attached hereto.
2. List of Entities
<TABLE>
<CAPTION>
Jurisdiction Where Equity Securities
Jurisdiction of Qualified to Transact
Legal Name Organization Business as a Foreign Number Number Issued
of Such Person Type of Entity or Formation Corporation or Otherwise Authorized and Outstanding Owners
<S> <C> <C> <C> <C> <C> <C>
Reckson Associates Corp. MD NY 100,000,000 40,375,506 Public
Realty Corp. ("RA") NJ (Common) (Class A
CT common stock)
10,283,763
(Class B
common stock)
25,000,000 9,192.000
(Preferred)
Reckson Operating LP DE NY RA (88%)
Partnership, L.P. NJ LPs (12%)
CT of common units;
RA- 100% of Series
A Preferred Units
Reckson Executive LLC NY See Diagram
Center, LLC
Reckson Management Corp. NY NY 1,000 1,000 See Diagram
Group, Inc. NJ (Common)
CT 1,000 1,000
(Preferred)
Reckson Construction Corp. NY NY 1,000 1,000 See Diagram
Group, Inc. NJ (Common)
CT 1,000 1,000
(Preferred)
Reckson FS Limited Corp. DE NY See Diagram
Partnership NJ
Reckson LLC DE NY See Diagram
Financing LLC NJ
Omni Partners, L.P. LP DE NY See Diagram
360 Hamilton LLC DE NY Borrower (50%);
Ave, LLC Hamilton Plaza of
White Plains, Inc.
(50%)
RM Square LLC LLC NY NY 100% owned by
Reckson Operating
Partnership, L.P.
Reckson 120 White LLC NY NY 100% owned by
Plains Road LLC Reckson Operating
Partnership, L.P.
520 LLC LLC DE NY Borrower (60%):
Tarrytown Corporate
Center 111, L.P.
(40%)
Reckson/Matrix LLC NJ NJ Reckson Operating
Cabbot Drive, LLC Partnership, L.P.
(99%): Reckson
Construction Group.
Inc. (1%)
Metropolitan Partners LLC DE RA (50%); Crescent
LLC Real Estate
Equities Company
(50%)
</TABLE>
<TABLE>
<CAPTION>
Metropolitan Exhibit A to Schedule 7.1-C
Partners LLC
Interests
Company.........50% Reckson Associates Realty Corp.
Crescent Real (the Company)
Estate Equities
Company.........50% (General (88%))
Reckson Operating Partnership, L.P.
(the Operating Partnership)
Common Units Preferred Units
<S> <C> <C>
Company 88% 100% of Series A
Limited Partners 12% 100% of Series B, C and D
Reckson Management Group, Inc.
and Reckson Construction Group, Inc. Omni Partners, L.P. Reckson 17S Limited
(the Management and Construction (the Omni Partnership) Partnership
Companies) (the Financing Partnership)
Non-
Voting Voting Interests Interests
Common Preferred Operating Operating
Stock Stock Partnership ......60% Partnership........99%
Operating 100% Partnership
Partnership... Odyssey and Financing
Reckson Management affiliate ........40% Subsidiary(2).......1%
Partners, L.L.C. (1)... 100%
</TABLE>
- ------------------
(1) Reckson Management Partners, L.L.C., is owned by Scott, Mitchell, Gregg
and Mark Rechler.
(2) The Financing Subsidiary is a wholly-owned subsidiary of the Operating
Partnership named Reckson Financing LLC.
Schedule 7.1-H
Indebtedness
See Exhibit A attached hereto
<TABLE>
<CAPTION>
Pro Rata Share of
Outstanding Outstanding Expiration Amortization
Property % Owned Lender Balance Balance Interest Rate Date Term
-------- ------- ------ ------- ------- ------------- ---- ----
WHOLLY OWNED
NON-RECOURSE SECURED:
- --------------------
<S> <C> <C> <C> <C> <C> <C> <C>
6800 Jericho 100% New York Life Insurance $ 15,000,825 $ 15,000,825 7.25% Jun-00 None
6900 Jericho 100% New York Life Insurance 5,278,830 5,278,830 7.25% Jun-00 None
200 Broadhollow Rd. 100% Dime Savings 6,560,141 6,560,141 7.75% Jun-02 30 Year
50 Charles Lindbergh 100% New York Life Insurance 15,479,269 15,479,269 7.50% Jul-01 None
310 E. Shore Rd. 100% Woodmen of the World 2,322,462 2,322,462 8.00% Jul-02 None
80 Orville Drive 100% Principal Mutual Life 2,615,651 2,615,651 7.50% Feb-04 None
110 Bi-County Blvd. 100% Fortis Benefits Ins. Co. 4,220,824 4,220,824 9.13% Nov-12 20 year
580 White Plains 100% Mellon Mortgage Company 8,143,610 8,143,610 7.38% Sep-00 20 year
395 N. Service Road 100% Bayerische VereinsBank 20,933,000 20,933,000 6.45% Oct-05 (B)
100 Summit Lake Dr. 100% M & T Real Estate Inc. 22,613,861 22,613,861 8.50% Mar-07 14 year
200 Summit Lake Dr. 100% USGI Inc. 20,462,940 20,462,940 9.25% Nov-05 27 year
120 West 45th Street 100% Midland Loan Services 67,000,000 67,000,000 6.82% Nov-27 (C)
1 Orlando Center 100% Midland Loan Services 40,000,000 40,000,000 6.82% Nov-27 (C)
810 Seventh Avenue 100% Aegon USA Realty 36,820,833 36,820,833 7.73% Aug-09 25 year
100 Wall Street 100% Aegon USA Realty 37,622,792 37,622,792 7.73% Aug-09 25 year
---------------------------------
Total Wholly-Owned Non-Recourse Secured $ 355,075,037 $ 355,075,037
---------------------------------
RECOURSE SECURED:
- ----------------
Landmark Square 100% Metropolitan Life 47,808,523 47,808,523 8.02% Oct-06 25 year
---------------------------------
Total Wholly-Owned Recourse Secured $ 47,808,523 $ 47,808,523
---------------------------------
Total Secured Wholly-Owned $ 402,883,561 $ 402,883,561
---------------------------------
JOINT VENTURE
Omni 60% Northwestern Mutual Life $ 56,430,536 $ 33,358,352 7.72% Sep-07 10 year
520 White Plains 60% Dorman & Wilson 13,951,340 3,370,304 8.85% Sep-05 20 year
---------------------------------
Total Joint Venture $ 70,381,927 $ 42,229,156
---------------------------------
OTHER SECURED DEBT: $ - $ -
- ----------------------------------------------------------------------------------------
Total Secured Debt $ 473,265,488 $ 445,112,717
- ----------------------------------------------------------------------------------------
Unsecured Revolver $ 297,600,000 $ 297,600,000 6.28% Jul-01
Unsecured Term Loan $ 75,000,000 $ 75,000,000 7.13% Dec-99
Other Unsecured Debt-Corporate & Wholly-Owned Interests $ 150,000,000 $ 150,00,000 7.20% Aug-07 (D)
Other Unsecured Debt-Corporate & Wholly-Owned Interests $ 99,842,474 $ 99,842,474 7.40% Mar-04 (E)
Other Unsecured Debt-Corporate & Wholly-Owned Interests $ 199,453,059 $ 199,453,059 7.75% Mar-?? (F)
- ----------------------------------------------------------------------------------------
Total Other Unsecured Debt $ 449,295,533 $ 449,295,533
- ----------------------------------------------------------------------------------------
Total Unsecured Debt $ 821,895,533 $ 821,895,533
- ----------------------------------------------------------------------------------------
Subsidiary Unsecured Recourse Debt $ - $ -
- ----------------------------------------------------------------------------------------
Total Outstanding Debt $1,295,161,021 $1,267,008,250
- ----------------------------------------------------------------------------------------
</TABLE>
Notes
- -----
(B) 534,000 Scheduled Amortization per Month
(C) 28 Year Amortization Beginning 1299
(D) ???enior unsecured notes
(E) ???enior unsecured notes
(F) ???enior unsecured notes
<PAGE>
SCHEDULE 7.1-I
LITIGATION; ADVERSE EFFECTS
---------------------------
None.
<PAGE>
SCHEDULE 7.1-P
ENVIRONMENTAL MATTERS
---------------------
100 Oser Avenue, Hauppauge, NY, a property formerly owned by Vanderbilt
Associates is listed on the Registry of Inactive Hazardous
Waste Disposal Sites in New York State.
<PAGE>
SCHEDULE 7.1-Q
ERISA PLANS
-----------
o 401(k) Plan
<PAGE>
SCHEDULE 7.1-R
SECURITIES ACTIVITIES
---------------------
Loans in connection with each of the Stock Option Plans
listed on Schedule 1.1.2
<PAGE>
SCHEDULE 7.1-T
INSURANCE PLANS
---------------
See Exhibit A attached hereto
<PAGE>
COLEX COVERAGE CORP.
488 WILLIS AVENUE
WILLISTON PARK, NY 11596
Phone: 516/746-7177 o Fax: 516/742-7180
SCHEDULE OF INSURANCE
AS OF 06/25/99
INSURED: RECKSON ASSOCIATES REALTY CORP., &/OR RECKSON OPERATING
PARTNERSHIP, LP, etal
<TABLE>
<CAPTION>
===============================================================================================---------------------------------
CoMPANY POLICY NO. COVERAGE LIMITS TERM PREMIUM
================================================================================------------------------------------------------
<S> <C> <C> <C> <C> <C>
Amer Protection 3ZG008388-00 COMMERCIAL PROPERTY POLICY 08/02/99-00 $718,370
Blanket Real & Personal Property $ 2,562,940,558
Business Income
Extra Expense 6,000,000
Boiler & Machinery Included
Flood 50,000,000
Earth Movement 50,000,000
Lm erman's 3F968870-00 CRIME 06/02/99-00 5,741
Employee Dishonesty 1,000,000
Depositor's Forgery 1,000,000
Money & Securities
Inside 25,000
Outside 10,000
Diamond State L7126311 COMMERCIAL GENERAL LIABILITY 06/02/99-00 666,252
Each Occurrence 1,000,000
Policy Aggregate 2,000,000
Fire Damage Liability 1,000,000
Medical Expense 10,000
Lumberman's FSV088673-00 BUSINESS AUTO 06/02/99-00 135,400
Bodily Injury & Property Damage Liability
(Combined Single Limit) 1,000,000
Personal Injury Protection Included
Additional Personal Injury Protection Included
Optional Basic Economic Loss (NY) Included
Supplementary Uninsured Motorists 1,000,000
Comprehensive - $500 Ded. ACV
Collision - $500 Ded. ACV
Rental Reimbursement (Pvt Pass only) Included
Towing (Pvt Pass only) Included
Hired/Non Owned Auto Liability 1,000,000
AR?OMA 001308 COMMERCIAL UMBRELLA LIABILITY 12/10/98-99 96,020
Each Occurrence 125,000,000
General Aggregate 125,000,000
Reliance Ins Co NAR0137864-99 DIRECTORS & OFFICERS LIABILITY 05/25/99-00 275,000
Aggregate Limit of Liability - Policy Year 25,000,000
Greater NY Mutual 6631003306 WORKER'S COMPENSATION Statutory 06/02/98-99 146,162
Trans Genl Life 02574 NY DISABILITY BENEFITS Up to $500/week Continuous See Remarks
(26 weeks)
Fireman's of OH OEP02959680 EMPLOYMENT PRACTICES LIABILITY 05/08/99-00 13,281
Per Claim Limit 5,000,000
Total Aggregate Limit 5,000,000
CNA 1P88407A2AANJ NJ TEMPORARY DISABILITY BENEFITS Up to $500/week Continuous See Remarks
(26 weeks)
Reliance NTL1632511 ENVIRONMENTAL LIABILITY 7/24/97-99 $12,800
Pollution Legal Liability $1,000,000
Remediation Legal Liability 1,000,000
Legal Defense Expense 1,000,000
Aggregate Policy Limit (including all
losses and expenses) 1,000,000
</TABLE>
REMARKS:
- -------
(1) NY DBL and NJ TDB policy premiums are reconciled by the Insured
quarterly and remitted directly to the carrier.
THE INFORMATION SHOWN ON THIS SCHEDULE IS A BRIEF OUTLINE OF THE INSURANCE
WRITTEN THROUGH COLEX COVERAGE CORP. SINCE IT IS NOT INTENDED TO STATE ALL
COVERAGES, CONDITIONS, LIMITATIONS AND EXCLUSIONS, PLEASE REFER TO THE
SPECIFIC POLICY. PREMIUMS SHOWN ARE EITHER AS AN ANNUAL DEPOSIT OR AS THE
INITIAL PREMIUM AT INCEPTION.
COLEX COVERAGE CORP. | 486 Willis Avenue | Williston Park, NY 11596
<PAGE>
Exhibit 1.2
SECOND AMENDED AND RESTATED GUARANTY AGREEMENT
SECOND AMENDED AND RESTATED UNCONDITIONAL GUARANTY OF PAYMENT (this
"Guaranty"), is made as of December 17, 1999 by RECKSON ASSOCIATES REALTY
CORP. ("RAR"), a Maryland corporation, RECKSON FS LIMITED PARTNERSHIP ("RFS"
and together with RAR, the "Guarantor"), a Delaware limited partnership, in
favor of THE CHASE MANHATTAN BANK, as arranger, book manager, and
administrative agent (the "Agent") for the benefit of the banks (the
"Lenders") that are from time to time parties to that certain Second Amended
and Restated Credit Agreement (the "Credit Agreement"), dated as of December
17, 1999, among Guarantor, the Lenders and the Agent.
Capitalized terms not otherwise defined in this Guaranty shall have
the meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, Borrower, Reckson Morris Operating Partnership, L.P. and the
Agent entered into an Amended and Restated Credit Agreement dated as of
January 12, 1999, as amended by First Amendment to Amended and Restated Credit
Agreement, dated as of September 27, 1999 (the "Existing Credit Agreement");
and
WHEREAS, pursuant to the terms of the Existing Credit Agreement, the
Loans were to be guaranteed by the Borrower Guarantors pursuant to the
Guaranty Agreement dated as of January 12, 1999 (the "Existing Guaranty"); and
WHEREAS, the parties to the Existing Credit Agreement have agreed to
amend and restate the terms and conditions contained in the Existing Credit
Agreement in their entirety in that certain Credit Agreement, pursuant to
which the Lenders shall make Loans to the Borrower to be guaranteed by the
Borrower, and to be evidenced by certain Promissory Notes (as the same may be
amended, supplemented, modified or restated from time to time, the "Notes"),
each dated as of the date hereof, in the aggregate principal amount of
$75,000,000, payable by the Borrower to the order of the Lenders respective to
their Pro Rata Shares of the Loans; and
WHEREAS, the parties hereto have agreed to amend and restate the
terms and conditions contained in the Existing Guaranty in their entirety as
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the direct and
indirect benefits to be derived from the making of the Loans by the Lenders to
the Borrower, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Guarantor hereby agrees as
follows:
I. The Existing Guaranty is hereby modified so that all of the terms
and conditions of the aforesaid Existing Guaranty shall be restated in their
entirety as set forth herein, and Guarantor agrees to comply with and be
subject to all of the terms, covenants and conditions of this Guaranty.
II. This Guaranty shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and assigns, and shall be
deemed to be effective as of the date hereof.
III. Any reference in any other Loan Document or any other document
executed in connection with the Existing Credit Agreement to the Existing
Guaranty shall be deemed to refer to this Guaranty.
The parties hereby agree as follows:
1. The Guarantor, on behalf of themselves and their successors and
assigns, each hereby irrevocably, absolutely, and unconditionally jointly and
severally guarantees the full and punctual payment when due, whether at stated
maturity or otherwise, of all obligations of the Borrower now or hereafter
existing under the Note or under any of the other Loan Documents to which the
Borrower is a party, together with any and all reasonable costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements)
incurred by the Agent in enforcing its rights under this Guaranty (all such
obligations set forth in this Paragraph 1 being referred to as the "Guaranteed
Obligations").
2. It is agreed that the obligations of Guarantor hereunder are
primary and this Guaranty shall be enforceable against Guarantor and their
successors and assigns without the necessity for any suit or proceeding of any
kind or nature whatsoever brought by the Agent against the Borrower or its
successors or assigns or any other party or against any security for the
payment and performance of the Guaranteed Obligations and, to the extent
permitted by applicable law, without the necessity of any notice of
non-payment or nonobservance or of any notice of acceptance of this Guaranty
or of any notice or demand to which Guarantor might otherwise be entitled
(including, without limitation, diligence, presentment, notice of maturity,
extension of time, change in nature or form of the Guaranteed Obligations,
acceptance of further security, release of further security, imposition or
agreement arrived at as to the amount of or the terms of the Guaranteed
Obligations, notice of adverse change in the Borrower's financial condition
and any other fact which might materially increase the risk to Guarantor), all
of which Guarantor, to the extent permitted by applicable law, hereby
expressly waives; and, to the extent permitted by applicable law, Guarantor
hereby expressly agrees that the validity of this Guaranty and the obligations
of the Guarantor hereunder shall in no way be terminated, affected,
diminished, modified or impaired by reason of the assertion of, or the failure
to assert by the Agent against the Borrower or its respective successors or
assigns, any of the rights or remedies reserved to the Agent pursuant to the
provisions of the Loan Documents. Guarantor hereby agrees that, to the extent
permitted by applicable law, any notice or directive given at any time to the
Agent which is inconsistent with the waiver in the immediately preceding
sentence shall be void and may be ignored by the Agent, and, in addition, may
not be pleaded or introduced as evidence in any litigation relating to this
Guaranty for the reason that such pleading or introduction would be at
variance with the written terms of this Guaranty, unless the Agent has
specifically agreed otherwise in writing, signed by a duly authorized officer.
Guarantor specifically acknowledges and agrees that the foregoing waivers are
of the essence of this transaction and that, but for this Guaranty and such
waivers, the Agent, the Lenders would not make the requested Loan to the
Borrower.
3. To the extent permitted by applicable law, Guarantor hereby
waives, and covenants and agrees that it will not at any time insist upon,
plead or in any manner whatsoever claim or take the benefit or advantage of,
any and all appraisal, valuation, stay, extension, marshalling-of-assets or
redemption laws, or right of homestead exemption, whether now or at any time
hereafter in force, which may delay, prevent or otherwise affect the
performance by Guarantor of its obligations under, or the enforcement by the
Agent of, this Guaranty. To the extent permitted by applicable law, Guarantor
further covenants and agrees not to set up or claim any defense, counterclaim,
offset, set-off or other objection of any kind to any action, suit or
proceeding in law, equity or otherwise, or to any demand or claim that may be
instituted or made by the Agent other than the defense of the actual timely
payment and performance by the Borrower of the Guaranteed Obligations
hereunder. Guarantor represents, warrants and agrees that, as of the date
hereof, its obligations under this Guaranty are not subject to any
counterclaims, offsets or defenses against the Agent of any kind.
4. The provisions of this Guaranty are for the benefit of the Agent
on behalf of the Lenders and their successors and permitted assigns, and
nothing herein contained shall impair as among the Borrower and the Agent the
obligations of the Borrower under the Loan Documents.
5. This Guaranty shall be a continuing, unconditional and absolute
guaranty and, to the extent permitted by applicable law, the liability of
Guarantor hereunder shall in no way be terminated, affected, modified,
impaired or diminished by reason of the happening, from time to time, of any
of the following, although without notice or the further consent of Guarantor:
(a) any assignment, amendment, modification or waiver of or
change in any of the terms, covenants, conditions or provisions of
any of the Guaranteed Obligations or the Loan Documents or the
invalidity or unenforceability of any of the foregoing; or
(b) any extension of time that may be granted by the Agent to
the Borrower, any guarantor, or their respective successors or
assigns; or
(c) any action which the Agent may take or fail to take under or
in respect of any of the Loan Documents or by reason of any waiver
of, or failure to enforce any of the rights, remedies, powers or
privileges available to the Agent under this Guaranty or available to
the Agent at law, in equity or otherwise, or any action on the part
of the Agent granting indulgence or extension in any form whatsoever;
or
(d) any sale, exchange, release, or other disposition of any
property pledged, mortgaged or conveyed, or any property in which the
Agent and/or the Lenders have been granted a lien or security
interest to secure any indebtedness of the Borrower to the Agent
and/or the Lenders; or
(e) any release of any person or entity who may be liable in any
manner for the payment and collection of any amounts owed by the
Borrower to the Agent and/or the Lenders; or
(f) the application of any sums by whomsoever paid or however
realized to any amounts owing by the Borrower to the Agent and/or the
Lenders under the Loan Documents in such manner as the Agent shall
determine in its sole discretion; or
(g) the Borrower's or any guarantor's voluntary or involuntary
liquidation, dissolution, sale of all or substantially all of their
respective assets and liabilities, appointment of a trustee,
receiver, liquidator, sequestrator or conservator for all or any part
of the Borrower's or guarantor's assets, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment, or the commencement of other similar
proceedings affecting the Borrower or any guarantor or any of the
assets of any of them, including, without limitation, (i) the release
or discharge of the Borrower or any guarantor from the payment and
performance of their respective obligations under any of the Loan
Documents by operation of law, or (ii) the impairment, limitation or
modification of the liability of the Borrower or any guarantor in
bankruptcy, or of any remedy for the enforcement of the Guaranteed
Obligations under any of the Loan Documents, or Guarantor's liability
under this Guaranty, resulting from the operation of any present or
future provisions of the Bankruptcy Code or other present or future
federal, state or applicable statute or law or from the decision in
any court; or
(h) any improper disposition by the Borrower of the proceeds of
the Loans, it being acknowledged by Guarantor that the Agent shall be
entitled to honor any request made by the Borrower for a disbursement
of such proceeds and that the Agent shall have no obligation to see
the proper disposition by the Borrower of such proceeds.
6. Guarantor hereby agrees that if at any time all or any part of any
payment at any time received by the Agent from the Borrower under any of the
Notes or other Loan Documents or Guarantor under or with respect to this
Guaranty is or must be rescinded or returned by the Agent for any reason
whatsoever (including, without limitation, the insolvency, bankruptcy or
reorganization of the Borrower or Guarantor), then Guarantor's obligations
hereunder shall, to the extent of the payment rescinded or returned, be deemed
to have continued in existence notwithstanding such previous receipt by the
Agent, and Guarantor's obligations hereunder shall continue to be effective or
reinstated, as the case may be, as to such payment, as though such previous
payment to the Agent had never been made.
7. Until this Guaranty is terminated pursuant to the terms hereof,
the Guarantor (i) shall have no right of subrogation against the Borrower or
any entity comprising same by reason of any payments or acts of performance by
Guarantor in compliance with the obligations of Guarantor hereunder; (ii)
hereby waives any right to enforce any remedy which Guarantor now or hereafter
shall have against the Borrower or any entity comprising the same by reason of
any one or more payment or acts of performance in compliance with the
obligations of Guarantor hereunder; and (iii) shall subordinate any liability
or indebtedness of the Borrower or any entity comprising same now or hereafter
held by Guarantor to the obligations of the Borrower under the Loan Documents;
provided that nothing contained herein shall limit the right of the Guarantor
to receive any amount from the Borrower, or any entity comprising the same
that is not prohibited by the terms of the Loan Documents.
8. Guarantor hereby represents and warrants on its own behalf to the
Agent with the knowledge that the Agent is relying upon the same, as follows:
(a) as of the date hereof, Reckson Associates Realty Corp. owns
a one percent (1%) general partnership interest and an eighty-two
percent (82%) limited partnership interest in the Borrower, and
Reckson Financing LLC (a wholly-owned subsidiary of Reckson Operating
Partnership, L.P.) is the general partner of Reckson FS Limited
Partnership, and Guarantor is familiar with the financial condition
of Borrower;
(b) based upon such relationship, Guarantor has determined that
it is in its best interest to enter into this Guaranty;
(c) this Guaranty is necessary and convenient to the conduct,
promotion and attainment of Guarantor's business, and is in
furtherance of Guarantor's business purposes;
(d) the benefits to be derived by Guarantor from the Borrower's
access to funds made possible by the Loan Documents are at least
equal to the obligations of Guarantor undertaken pursuant to this
Guaranty;
(e) each Guarantor is Solvent and has full corporate,
partnership, limited liability company or trust power, as the case
may be, and legal right to enter into this Guaranty and to perform
its obligations under the terms hereof and (i) Guarantor is organized
or formed and validly existing under the laws of the state of its
establishment or formation, (ii) Guarantor has complied with all
provisions of applicable law in connection with all aspects of this
Guaranty, and (iii) the person executing this Guaranty on behalf of
Guarantor has all the requisite power and authority to execute and
deliver this Guaranty; and
(f) this Guaranty has been duly executed by Guarantor and
constitutes the legal, valid and binding obligation of Guarantor,
enforceable against it in accordance with its terms except as
enforceability may be limited by applicable insolvency, bankruptcy or
other laws affecting creditors' rights generally or general
principles of equity whether such enforceability is considered in a
proceeding in equity or at law.
9. Guarantor and the Agent acknowledge and agree that this Guaranty
is a guaranty of payment and not of collection and enforcement in respect of
any obligations which may accrue to the Agent and/or the Lenders from the
Borrower under the provisions of any Loan Document.
10. Subject to the terms and conditions of the Credit Agreement, and
only in conjunction with a transfer permitted thereunder, the Agent may assign
any or all of its rights under this Guaranty.
11. Guarantor agrees, upon the written request of the Agent, to
execute and deliver to the Agent, from time to time, any modification or
amendment hereto or any additional instruments or documents reasonably
considered necessary by the Agent or its counsel to cause this Guaranty to be,
become or remain valid and effective in accordance with its terms or in order
to implement more fully the intent of this Guaranty, provided, that, any such
modification, amendment, additional instrument or document shall not increase
Guarantor's obligations or diminish its rights hereunder and shall be
reasonably satisfactory as to form to Guarantor and to Guarantor's counsel.
12. The representation and warranties of the Guarantor set forth in
this Guaranty shall survive until this Guaranty shall terminate in accordance
with the terms hereof.
13. This Guaranty together with the Credit Agreement and the other
Loan Documents contains the entire agreement among the parties with respect to
the Loans being made to the Borrower simultaneously with the execution and
delivery hereof, and supersedes all prior agreements relating to such Loan and
may not be modified, amended, supplemented or discharged except by a written
agreement signed by Guarantor and the Agent.
14. If all or any portion of any provision contained in this Guaranty
shall be determined to be invalid, illegal or unenforceable in any respect for
any reason, such provision or portion thereof shall be deemed stricken and
severed from this Guaranty and the remaining provisions and portions thereof
shall continue in full force and effect.
15. In order for any demand, request or notice to the respective
parties hereto to be effective, such demand, request or notice shall be given,
in writing, by delivering the same personally or by nationally recognized
overnight courier service or by mailing, by certified or registered mail,
postage prepaid or by telecopying the same, addressed to such party at the
address set forth below or to such other address as may be identified by any
party in a written notice to the others. Any such demand, request or notice
sent as aforesaid shall be deemed to have been received by the party to whom
it is addressed upon delivery, if personally delivered and on the actual
receipt thereof, if sent by certified or registered mail or by telecopier, and
when transmitted, if sent by telex:
If to the
Borrower: 225 Broadhollow Road
Melville, New York 11747
Attention: Michael Maturo
Telecopy: (516) 756-1764
If to
Guarantor: Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, New York 11747
Attention: Michael Maturo
Telecopy: (516) 756-1764
Guarantor: Reckson FS Limited Partnership
Reckson Morris Operating Partnership, L.P.
225 Broadhollow Road
Melville, New York 11747
Attention: Michael Maturo
Telecopy: (516) 756-1764
With Copies of
Notices to the
Borrower or
Guarantor to: Brown & Wood llp
One World Trade Center
New York, New York 10048
Attention: Patricia A. Murphy, Esq.
Telecopy: (212) 839-5599
If to the Agent: The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Marc Costantino
Telecopy: (212) 270-9554
With Copies to: Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Martha Feltenstein, Esq.
Telecopy: (212) 735-2000
16. This Guaranty shall be binding upon Guarantor and its successors
and assigns and shall inure to the benefit of the Agent and its successors and
assigns.
17. The failure of the Agent to enforce any right or remedy
hereunder, or promptly to enforce any such right or remedy, shall not
constitute a waiver thereof, nor give rise to any estoppel against the Agent,
nor excuse Guarantor from its obligations hereunder. Any waiver of any such
right or remedy to be enforceable against the Agent must be expressly set
forth in a writing signed by the Agent.
18. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
(b) Any legal action or proceeding with respect to this Guaranty and
any action for enforcement of any judgment in respect thereof may be brought
in the courts of the State of New York or of the United States of America for
the Southern District of New York, and, by execution and delivery of this
Guaranty, Guarantor hereby accepts for itself and in respect of its property,
generally and unconditionally, the nonexclusive jurisdiction of the aforesaid
courts and appellate courts from any thereof. Guarantor irrevocably consents
to the service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to Guarantor at the address for notices set
forth herein. Guarantor hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Guaranty brought in
the courts referred to above and hereby further irrevocably waives and agrees
not to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum. Nothing
herein shall affect the right of the Agent to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against Guarantor in any other jurisdiction.
(c) GUARANTOR AND AGENT BY THEIR EXECUTION HEREOF AND THE LENDERS
ACCEPTANCE HEREOF EACH HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY AND ALL
CLAIMS OR CAUSES OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY. IT IS
HEREBY ACKNOWLEDGED BY GUARANTOR THAT THE WAIVER OF A JURY TRIAL IS A MATERIAL
INDUCEMENT FOR THE AGENT TO ACCEPT THIS GUARANTY AND THAT THE LOANS MADE BY
THE LENDERS ARE MADE IN RELIANCE UPON SUCH WAIVER. GUARANTOR FURTHER WARRANTS
AND REPRESENTS THAT SUCH WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY MADE,
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS
GUARANTY MAY BE FILED BY THE AGENT IN COURT AS A WRITTEN CONSENT TO A NON-JURY
TRIAL.
(d) Guarantor does hereby further covenant and agree to and with the
Agent that Guarantor may be joined in any action against the Borrower in
connection with the Loan Documents and that recovery may be had against
Guarantor in such action or in any independent action against Guarantor (with
respect to the Guaranteed Obligations), without the Agent first pursuing or
exhausting any remedy or claim against the Borrower or its successors or
assigns. Guarantor also agrees that, in an action brought with respect to the
Guaranteed Obligations in any jurisdiction, it shall be conclusively bound by
the judgment in any such action by the Agent (wherever brought) against the
Borrower or its successors or assigns, as if Guarantor were a party to such
action, even though Guarantor was not joined as parties in such action.
(e) Guarantor hereby agrees to pay all expenses (including, without
limitation, reasonable attorneys' fees and disbursements) which may be
incurred by the Agent in connection with the enforcement of its rights under
this Guaranty, whether or not suit is initiated; provided, however, that such
expenses shall be paid by the Agent if a final judgment in favor of Guarantor
is rendered by a court of competent jurisdiction. Moreover, Guarantor
covenants and agrees to indemnify and save the Agent harmless of and from, and
defend it against, all losses, out-of-pocket costs and expenses, liabilities,
damages or claims arising by reason of Guarantor's failure to perform its
obligations hereunder.
19. Subject to the terms of Section 6 hereof, this Guaranty shall
terminate and be of no further force or effect upon the full performance and
payment of the Guaranteed Obligations hereunder. Upon termination of this
Guaranty in accordance with the terms of this Guaranty, the Agent promptly
shall deliver to Guarantor such documents as Guarantor or Guarantor's counsel
reasonably may request in order to evidence such termination.
20. All of the Agent's rights and remedies under each of the Loan
Documents or under this Guaranty are intended to be distinct, separate and
cumulative and no such right or remedy therein or herein mentioned is intended
to be in exclusion of or a waiver of any other right or remedy available to
the Agent.
21. Recourse with respect to any claim arising under or in connection
with this Guaranty by the Agent, the Arrangers and the Lenders shall be
limited to the same extent as is provided in Section 4.3(e) of the Credit
Agreement with respect to claims against the Guarantor and the other parties
named therein and the terms, covenants and conditions of Section 4.3 (e) of
the Credit Agreement are hereby incorporated by reference as if fully set
forth herein.
22. By executing and delivering this Guaranty, RAR hereby agrees that
it shall be bound by, and shall comply with, all warranties and covenants
applicable to it set forth in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be
duly executed and delivered as of the date first set forth above.
GUARANTOR:
RECKSON ASSOCIATES REALTY CORP.,
a Maryland corporation
By: __________________________
Name:
Title:
RECKSON FS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Reckson Financing LLC,
a Delaware limited liability company,
its general partner
By: Reckson operating Partnership, L.P.,
its sole member
By: Reckson Associates Realty Corp.,
its general partner
By: ___________________________
Name:
Title:
