|
|
|
|
Legal Resources
Business Contracts
MCLE Courses
Projects
Friends
|
Sample Business ContractsHome: Sample Business Contracts:
================================================================================
REVOLVING LOAN AGREEMENT
dated as of June 23, 1998
among
AVALON BAY COMMUNITIES, INC.,
as Borrower,
FLEET NATIONAL BANK,
as Co-Agent and Bank,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Co-Agent and Bank,
UNION BANK OF SWITZERLAND
(New York Branch),
as Co-Agent and Bank,
the other banks signatory hereto,
each as a Bank,
and
FLEET NATIONAL BANK,
as Administrative Agent
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I DEFINITIONS; ETC.....................................................................................1
Section 1.01 Definitions.................................................................................1
Section 1.02 Accounting Terms...........................................................................17
Section 1.03 Computation of Time Periods................................................................17
Section 1.04 Rules of Construction......................................................................17
ARTICLE II THE LOANS..........................................................................................18
Section 2.01 Ratable Loans; Bid Rate Loans; Purpose.....................................................18
Section 2.02 Bid Rate Loans.............................................................................19
Section 2.03 Advances, Generally........................................................................22
Section 2.04 Procedures for Advances....................................................................22
Section 2.05 Interest Periods; Renewals.................................................................23
Section 2.06 Interest...................................................................................23
Section 2.07 Fees.......................................................................................24
Section 2.08 Notes......................................................................................24
Section 2.09 Prepayments................................................................................25
Section 2.10 Cancellation of Commitments................................................................25
Section 2.11 Method of Payment..........................................................................26
Section 2.12 Elections, Conversions or Continuation of Loans............................................26
Section 2.13 Minimum Amounts............................................................................26
Section 2.14 Certain Notices Regarding Elections, Conversions and Continuations of Loans................26
Section 2.15 Late Payment Premium.......................................................................27
Section 2.16 Letters of Credit..........................................................................27
Section 2.17 Intentionally Omitted......................................................................29
Section 2.18 Swing Loans................................................................................29
Section 2.19 Extension Of Maturity......................................................................30
ARTICLE III YIELD PROTECTION; ILLEGALITY, ETC.................................................................31
Section 3.01 Additional Costs...........................................................................31
Section 3.02 Limitation on Types of Loans...............................................................32
Section 3.03 Illegality.................................................................................33
Section 3.04 Treatment of Affected Loans................................................................33
Section 3.05 Certain Compensation.......................................................................33
Section 3.06 Capital Adequacy...........................................................................34
Section 3.07 Substitution of Banks......................................................................34
Section 3.08 Applicability..............................................................................36
ARTICLE IV CONDITIONS PRECEDENT...............................................................................36
Section 4.01 Conditions Precedent to the Initial Advance................................................36
Section 4.02 Conditions Precedent to Advances After the Initial Advance.................................37
Section 4.03 Deemed Representations.....................................................................38
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE V REPRESENTATIONS AND WARRANTIES......................................................................38
Section 5.01 Due Organization...........................................................................38
Section 5.02 Power and Authority; No Conflicts; Compliance With Laws....................................38
Section 5.03 Legally Enforceable Agreements.............................................................39
Section 5.04 Litigation.................................................................................39
Section 5.05 Good Title to Properties...................................................................39
Section 5.06 Taxes......................................................................................39
Section 5.07 ERISA......................................................................................39
Section 5.08 No Default on Outstanding Judgments or Orders..............................................40
Section 5.09 No Defaults on Other Agreements............................................................40
Section 5.10 Government Regulation......................................................................40
Section 5.11 Environmental Protection...................................................................40
Section 5.12 Solvency...................................................................................40
Section 5.13 Financial Statements.......................................................................40
Section 5.14 Valid Existence of Affiliates..............................................................40
Section 5.15 Insurance..................................................................................41
Section 5.16 Accuracy of Information; Full Disclosure...................................................41
Section 5.17 Corporate Merger and Termination of Other Credit Facilities................................41
ARTICLE VI AFFIRMATIVE COVENANTS..............................................................................41
Section 6.01 Maintenance of Existence...................................................................41
Section 6.02 Maintenance of Records.....................................................................42
Section 6.03 Maintenance of Insurance...................................................................42
Section 6.04 Compliance with Laws; Payment of Taxes.....................................................42
Section 6.05 Right of Inspection........................................................................42
Section 6.06 Compliance With Environmental Laws.........................................................42
Section 6.07 Maintenance of Properties..................................................................42
Section 6.08 Payment of Costs...........................................................................42
Section 6.09 Reporting and Miscellaneous Document Requirements..........................................42
Section 6.10 Principal Prepayments as a Result of Reduction in Total Loan Commitment....................44
ARTICLE VII NEGATIVE COVENANTS................................................................................45
Section 7.01 Mergers Etc................................................................................45
Section 7.02 Investments................................................................................45
Section 7.03 Sale of Assets.............................................................................45
ARTICLE VIII FINANCIAL COVENANTS..............................................................................45
Section 8.01 Consolidated Tangible Net Worth............................................................45
Section 8.02 Relationship of Total Outstanding Indebtedness to Capitalization Value.....................45
Section 8.03 Relationship of Combined EBITDA to Interest Expense........................................45
Section 8.04 Relationship of Combined EBITDA to Combined Debt Service...................................46
Section 8.05 Relationship of Combined EBITDA to Total Outstanding Indebtedness..........................46
Section 8.06 Unsecured Debt Yield.......................................................................46
Section 8.07 Relationship of Unencumbered Combined EBITDA to Unsecured Interest Expense.................46
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
Section 8.08 Relationship of Dividends to Funds From Operations.........................................46
Section 8.09 Relationship of Secured Indebtedness to Capitalization Value...............................46
ARTICLE IX EVENTS OF DEFAULT..................................................................................46
Section 9.01 Events of Default..........................................................................46
Section 9.02 Remedies...................................................................................48
ARTICLE X ADMINISTRATIVE AGENT; RELATIONS AMONG BANKS.........................................................49
Section 10.01 Appointment, Powers and Immunities of Administrative Agent.................................49
Section 10.02 Reliance by Administrative Agent...........................................................49
Section 10.03 Defaults...................................................................................50
Section 10.04 Rights of Administrative Agent as a Bank...................................................50
Section 10.05 Indemnification of Administrative Agent....................................................50
Section 10.06 Non-Reliance on Administrative Agent and Other Banks.......................................51
Section 10.07 Failure of Administrative Agent to Act.....................................................51
Section 10.08 Resignation or Removal of Administrative Agent.............................................51
Section 10.09 Amendments Concerning Agency Function......................................................52
Section 10.10 Liability of Administrative Agent..........................................................52
Section 10.11 Transfer of Agency Function................................................................52
Section 10.12 Non-Receipt of Funds by Administrative Agent...............................................52
Section 10.13 Withholding Taxes..........................................................................53
Section 10.14 Minimum Commitment by Co-Agents............................................................53
Section 10.15 Pro Rata Treatment.........................................................................53
Section 10.16 Sharing of Payments Among Banks............................................................53
Section 10.17 Possession of Documents....................................................................54
ARTICLE XI NATURE OF OBLIGATIONS..............................................................................54
Section 11.01 Absolute and Unconditional Obligations.....................................................54
Section 11.02 Non-Recourse to Borrower's Principals......................................................54
ARTICLE XII MISCELLANEOUS.....................................................................................55
Section 12.01 Binding Effect of Request for Advance......................................................55
Section 12.02 Amendments and Waivers.....................................................................55
Section 12.03 Usury......................................................................................56
Section 12.04 Expenses; Indemnification..................................................................56
Section 12.05 Assignment; Participation..................................................................57
Section 12.06 Documentation Satisfactory.................................................................58
Section 12.07 Notices....................................................................................58
Section 12.08 Setoff.....................................................................................58
Section 12.09 Table of Contents; Headings................................................................59
Section 12.10 Severability...............................................................................59
Section 12.11 Counterparts...............................................................................59
Section 12.12 Integration................................................................................59
Section 12.13 Governing Law..............................................................................59
Section 12.14 Waivers....................................................................................59
Section 12.15 Jurisdiction; Immunities...................................................................59
Section 12.16 Designated Lender..........................................................................60
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
Section 12.17 No Bankruptcy Proceedings..................................................................61
Section 12.18 Year 2000..................................................................................61
</TABLE>
EXHIBIT A - Authorization Letter
EXHIBIT B - Ratable Loan Note
EXHIBIT B-1 - Bid Rate Loan Note
EXHIBIT B-2 - Swing Loan Note
EXHIBIT C - Information Regarding Material Affiliates
EXHIBIT D - Solvency Certificate
EXHIBIT E - Assignment and Assumption Agreement
EXHIBIT F - Designation Agreement
EXHIBIT G-1 - Bid Rate Quote Request
EXHIBIT G-2 - Invitation for Bid Rate Quotes
EXHIBIT G-3 - Bid Rate Quote
EXHIBIT G-4 - Borrower's Acceptance of Bid Rate Quote
iv
<PAGE> 6
REVOLVING LOAN AGREEMENT dated as of June 23, 1998 among AVALON BAY
COMMUNITIES, INC., a corporation organized and existing under the laws of the
State of Maryland ("Borrower"), FLEET NATIONAL BANK (in its individual capacity
and not as Administrative Agent, "Fleet"), MORGAN GUARANTY TRUST COMPANY OF NEW
YORK ("Morgan"), UNION BANK OF SWITZERLAND (New York Branch) ("UBS"), the other
lenders signatory hereto, and FLEET NATIONAL BANK, as administrative agent for
the Banks (in such capacity, together with its successors in such capacity,
"Administrative Agent"; Fleet, Morgan, UBS, the other lenders signatory hereto,
such other lenders who from time to time become Banks pursuant to Section 3.07
or 12.05 and, if applicable, any of the foregoing lenders' Designated Lender,
each a "Bank" and collectively, the "Banks").
Borrower desires that the Banks extend credit as provided herein, and
the Banks are prepared to extend such credit. Accordingly, in consideration of
the premises and the mutual agreements, covenants and conditions hereinafter set
forth, Borrower, Administrative Agent and each of the Banks agree as follows:
ARTICLE I
DEFINITIONS; ETC.
Section 1.01 Definitions. As used in this Agreement the following
terms have the following meanings (except as otherwise provided, terms defined
in the singular to have a correlative meaning when used in the plural and vice
versa):
"Absolute Bid Rate" has the meaning specified in Section 2.02(c)(2).
"Absolute Bid Rate Loan" means a Bid Rate Loan bearing interest at
the Absolute Bid Rate.
"Absolute Rate Auction" means a solicitation of Bid Rate Quotes
setting forth Absolute Bid Rates pursuant to Section 2.02.
"Acquisition" means the acquisition by Borrower, directly or
indirectly, of an interest in multi-family real estate.
"Additional Costs" has the meaning specified in Section 3.01.
"Administrative Agent" has the meaning specified in the preamble.
"Administrative Agent's Office" means Administrative Agent's address
located at One Landmark Square, Stamford, Connecticut 06904, or such other
address in the United States as Administrative Agent may designate by written
notice to Borrower and the Banks.
"Affiliate" means, with respect to any Person (the "first Person"),
any other Person (1) which directly or indirectly controls, or is controlled by,
or is under common control with the first Person; or (2) 10% or more of the
beneficial interest in which is directly or indirectly owned or held by the
first Person. The term "control" means the possession, directly
1
<PAGE> 7
or indirectly, of the power, alone, to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise.
"Agreement" means this Revolving Loan Agreement.
"Applicable Lending Office" means, for each Bank and for its LIBOR
Loan, Bid Rate Loan(s) or Base Rate Loan, as applicable, the lending office of
such Bank (or of an Affiliate of such Bank) designated as such on its signature
page hereof or in the applicable Assignment and Assumption Agreement, or such
other office of such Bank (or of an Affiliate of such Bank) as such Bank may
from time to time specify to Administrative Agent and Borrower as the office by
which its LIBOR Loan, Bid Rate Loan(s) or Base Rate Loan (and, in the case of
the Swing Lender, its Swing Loan), as applicable, is to be made and maintained.
"Applicable Margin" means, with respect to Base Rate Loans and LIBOR
Loans (and for purposes of determining the Banks' L/C Fee Rate under Section
2.16(f)), the respective rates per annum determined at any time, based on the
range into which Borrower's Credit Rating then falls, in accordance with the
following table (any change in Borrower's Credit Rating causing it to move to a
different range on the table shall effect an immediate change in the Applicable
Margin):
<TABLE>
<CAPTION>
Range of Borrower's Applicable Margin Applicable Margin
Credit Rating for Base Rate Loans for LIBOR Loans
(S&P/Moody's) (% per annum) (% per annum)
------------- ------------- -------------
<S> <C> <C>
Below BBB-/below Baa3 or unrated 0.25 1.15
BBB-/Baa3 0.00 0.95
BBB/Baa2 0.00 0.75
BBB+/Baa1 0.00 0.60
A-or higher/A3 or higher 0.00 0.55
</TABLE>
"Assignee" and "Consented Assignee" have the respective meanings
specified in Section 12.05.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement, substantially in the form of EXHIBIT E, pursuant to which
a Bank assigns and an Assignee assumes rights and obligations in accordance with
Section 12.05.
"Authorization Letter" means a letter agreement executed by Borrower
in the form of EXHIBIT A.
"Available Total Loan Commitment" has the meaning specified in
Section 2.01(b).
"Avalon" means Avalon Properties, Inc., a Maryland corporation.
2
<PAGE> 8
"Bank" and "Banks" have the respective meanings specified in the
preamble; provided, however, that the term "Bank" shall exclude each Designated
Lender when used in reference to a Ratable Loan, the Loan Commitments or terms
relating to the Ratable Loans and the Loan Commitments.
"Bank Parties" means Administrative Agent and the Banks.
"Banking Day" means (1) any day on which commercial banks are not
authorized or required to close in New York City and (2) whenever such day
relates to a LIBOR Loan, a LIBOR Bid Rate Loan, an Interest Period with respect
to a LIBOR Loan or a LIBOR Bid Rate Loan, or notice with respect to a LIBOR Loan
or a LIBOR Bid Rate Loan or a LIBOR Auction, a day on which dealings in Dollar
deposits are also carried out in the London interbank market and banks are open
for business in London.
"Base Rate" means, for any day, the higher of (1) the Federal Funds
Rate for such day plus .50%, or (2) the Prime Rate for such day.
"Base Rate Loan" means all or any portion (as the context requires)
of a Bank's Ratable Loan which shall accrue interest at a rate determined in
relation to the Base Rate.
"Bay" means Bay Apartment Communities, Inc., a Maryland corporation.
"Bid Borrowing Limit" means 66 2/3% of the Total Loan Commitment.
"Bid Rate Loan" has the meaning specified in Section 2.01(c).
"Bid Rate Loan Note" has the meaning specified in Section 2.08.
"Bid Rate Quote" means an offer by a Bank to make a Bid Rate Loan in
accordance with Section 2.02.
"Bid Rate Quote Request" has the meaning specified in Section
2.02(a).
"Borrower" has the meaning specified in the preamble.
"Borrower's Accountants" means Coopers & Lybrand, or such other
accounting firm(s) selected by Borrower and reasonably acceptable to the
Required Banks.
"Borrower's Credit Rating" means the rating assigned from time to
time to Borrower's unsecured and unsubordinated long-term indebtedness by,
respectively, S&P and/or Moody's. In connection with the foregoing, it is
understood that if more than one (1) of the rating agencies identified above
assigns a rating to Borrower's unsecured and unsubordinated long-term
indebtedness, the following shall apply: (i) "Borrower's Credit Rating" shall be
the lower of said ratings and (ii) if the aforesaid ratings are greater than one
(1) rating level apart, "Borrower's Credit Rating" shall be the average of said
ratings. Unless such indebtedness of Borrower is rated by at least one (1) of
the rating agencies identified above, "Borrower's Credit Rating" shall be
considered unrated for purposes of this Agreement.
3
<PAGE> 9
"Borrower's Principals" means the officers and directors of Borrower
at any applicable time.
"Borrower's Share of UJV Combined Outstanding Indebtedness" means the
sum of the indebtedness of each of the UJVs contributing to UJV Combined
Outstanding Indebtedness multiplied by Borrower's respective beneficial
fractional interests in each such UJV.
"Capitalization Value" means, as of the end of any calendar quarter,
the sum of (1) Combined EBITDA (less all leasing commissions and management and
development fees, net of any expenses applicable thereto, contributing to
Combined EBITDA) for such quarter annualized (i.e., multiplied by four (4)),
capitalized at a rate of 8.75% per annum (i.e., divided by 8.75%), and (2) such
leasing commissions and management and development fees for such quarter,
annualized, (i.e., multiplied by four (4)), capitalized at a rate of 25% per
annum (i.e., divided by 25%), (3) Cash and Cash Equivalents of Borrower and its
Consolidated Businesses, as of the end of such quarter, as reflected in
Borrower's Consolidated Financial Statements, and (4) the lesser of (a) the
aggregate book value (on a cost basis) of the properties of Borrower and its
Consolidated Businesses under development plus Borrower's beneficial interest in
the book value (on a cost basis) of the properties of the UJVs under development
or (b) 20% of the sum of the amounts determined pursuant to clauses (1), (2) and
(3) of this definition.
"Capital Lease" means any lease which has been or should be
capitalized on the books of the lessee in accordance with GAAP.
"Cash and Cash Equivalents" means (1) cash, (2) direct obligations of
the United States Government, including, without limitation, treasury bills,
notes and bonds, (3) interest-bearing or discounted obligations of federal
agencies and government-sponsored entities or pools of such instruments offered
by Approved Banks and dealers, including, without limitation, Federal Home Loan
Mortgage Corporation participation sale certificates, Government National
Mortgage Association modified pass through certificates, Federal National
Mortgage Association bonds and notes, and Federal Farm Credit System securities,
(4) time deposits, domestic and eurodollar certificates of deposit, bankers'
acceptances, commercial paper rated at least A-1 by S&P and P-1 by Moody's
and/or guaranteed by an Aa rating by Moody's, an AA rating by S&P or better
rated credit, floating rate notes, other money market instruments and letters of
credit each issued by Approved Banks, (5) obligations of domestic corporations,
including, without limitation, commercial paper, bonds, debentures and loan
participations, each of which is rated at least AA by S&P and/or Aa2 by Moody's
and/or guaranteed by an Aa rating by Moody's, an AA rating by S&P or better
rated credit, (6) obligations issued by states and local governments or their
agencies, rated at least MIG-1 by Moody's and /or SP-1 by S&P and /or guaranteed
by an irrevocable letter of credit of an Approved Bank, (7) repurchase
agreements with major banks and primary government security dealers fully
secured by the United States Government or agency collateral equal to or
exceeding the principal amount on a daily basis and held in safekeeping and (8)
real estate loan pool participations, guaranteed by an AA rating given by S&P or
an Aa2 rating given by Moody's or better rated credit. For purposes of this
definition, "Approved Bank" means a financial institution which has (x) (A) a
minimum net worth of $500,000,000 and/or (B) total assets of at least
$10,000,000,000 and (y) a minimum long-term debt rating of A+ by S&P or A1 by
Moody's.
4
<PAGE> 10
"Closing Date" means the date this Agreement has been executed by all
parties.
"Co-Agent" means each of Fleet, Morgan and UBS and "Co-Agents" means
Fleet, Morgan and UBS collectively.
"Code" means the Internal Revenue Code of 1986.
"Combined Debt Service" means, for any period of time, (1) Borrower's
share of total debt service (including principal) paid or payable by Borrower
and its Consolidated Businesses during such period (other than debt service on
construction loans until completion of the relevant construction and other
capitalized interest) plus a deemed annual capital expense charge of $150 per
apartment unit owned by Borrower or its Consolidated Businesses plus (2)
Borrower's beneficial interest in (a) total debt service (including principal)
paid or payable by the UJVs during such period (other than debt service on
construction loans until completion of the relevant construction and other
capitalized interest) plus (b) a deemed annual capital expense charge of $150
per apartment unit owned by the UJVs plus (3) preferred dividends paid or
payable by Borrower and its Consolidated Businesses during such period.
"Combined EBITDA" means, for any period of time, the sum, without
duplication, of (1) Borrower's share of revenues less operating expenses,
general and administrative expenses and property taxes before Interest Expense,
income taxes, gains or losses on the sale of real estate and/or marketable
securities, depreciation and amortization and extraordinary items for Borrower
and its Consolidated Businesses, and adjusted, if material, for non-cash revenue
attributable to straight lining of rents and (2) Borrower's beneficial interest
in revenues less operating expenses, general and administrative expenses and
property taxes before Interest Expense, income taxes, gains or losses on the
sale of real estate and/or marketable securities, depreciation and amortization
and extraordinary items (after eliminating appropriate intercompany amounts)
applicable to each of the UJVs, and adjusted, if material, for non-cash revenue
attributable to straight lining of rents, in all cases as reflected in
Borrower's Consolidated Financial Statements.
"Consolidated Businesses" means, collectively, each Affiliate of
Borrower who is or should be included in Borrower's Consolidated Financial
Statements in accordance with GAAP.
"Consolidated Financial Statements" means, with respect to any
Person, the consolidated balance sheet and related consolidated statement of
operations, accumulated deficiency in assets and cash flows, and footnotes
thereto, of such Person, prepared in accordance with GAAP.
"Consolidated Outstanding Indebtedness" means, as of any time,
Borrower's share of all indebtedness and liability for borrowed money, secured
or unsecured, of Borrower and its Consolidated Businesses, including mortgage
and other notes payable but excluding any indebtedness which is margin
indebtedness on cash and cash equivalent securities, all as reflected in
Borrower's Consolidated Financial Statements.
"Consolidated Tangible Net Worth" means, at any date, Borrower's
share of the consolidated stockholders' equity of Borrower and its Consolidated
Businesses less their
5
<PAGE> 11
consolidated Intangible Assets, all determined as of such date. For purposes of
this definition, "Intangible Assets" means with respect to any such intangible
assets, the amount (to the extent reflected in determining such consolidated
stockholders' equity) of (1) all write-ups (other than write-ups resulting from
foreign currency translations and write-ups of assets of a going concern
business made within twelve (12) months after the acquisition of such business)
subsequent to September 30, 1994 in the book value of any asset (other than real
property assets) owned by Borrower or a Consolidated Business and (2) all debt
discount and expense, deferred charges, goodwill, patents, trademarks, service
marks, trade names, anticipated future benefit of tax loss carry-forwards,
copyrights, organization or developmental expenses and other intangible assets
(in each case, not adjusted for depreciation).
"Contingent Obligations" means, without duplication, Borrower's share
of (1) any contingent obligations of Borrower or its Constituted Businesses
required to be shown on the balance sheet of Borrower and its Consolidated
Businesses in accordance with GAAP and (2) any obligation required to be
disclosed in the footnotes to Borrower's Consolidated Financial Statements,
guaranteeing partially or in whole any non-Recourse Debt, 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 Borrower or any of its Consolidated Businesses or of any
other Person. The amount of any Contingent Obligation described in clause (2)
shall be deemed to be (a) with respect to a guaranty of interest or interest and
principal, or operating income guaranty, the net present value (using the Base
Rate as a discount rate) of 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), 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 Borrower and/or one or more
of its Consolidated Businesses is required to perform thereunder) as recorded on
the balance sheet and on the footnotes to the most recent Borrower's
Consolidated Financial Statements required to be delivered pursuant to this
Agreement. 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 or performance 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, (1) in the
case of a joint and several guaranty given by Borrower or one of its
Consolidated Businesses and another Person (but only to the extent such guaranty
is recourse, directly or indirectly to Borrower), the amount of the guaranty
shall be deemed to be 100% thereof unless and only to the extent that such other
Person has delivered Cash and Cash Equivalents to secure all or any part of such
Person's guaranteed obligations and (2) in the case of joint and several
guarantees given by a Person in which Borrower owns an interest (which
guarantees are non-recourse to Borrower), to the extent the guarantees, in the
aggregate, exceed 10% of Capitalization Value, the amount in excess of 10% shall
be deemed to be a Contingent Obligation of Borrower. Notwithstanding anything
contained herein to the
6
<PAGE> 12
contrary, "Contingent Obligations" shall be deemed not to include guarantees of
unadvanced funds under any indebtedness of Borrower or its Consolidated
Businesses or of construction loans to the extent the same have not been drawn.
All matters constituting "Contingent Obligations" shall be calculated without
duplication.
"Continue", "Continuation" and "Continued" refer to the continuation
pursuant to Section 2.12 of a LIBOR Loan as a LIBOR Loan from one Interest
Period to the next Interest Period.
"Convert", "Conversion" and "Converted" refer to a conversion
pursuant to Section 2.12 of a Base Rate Loan into a LIBOR Loan or a LIBOR Loan
into a Base Rate Loan, each of which may be accompanied by the transfer by a
Bank (at its sole discretion) of all or a portion of its Ratable Loan from one
Applicable Lending Office to another.
"Debt" means (1) indebtedness or liability for borrowed money, or for
the deferred purchase price of property or services (including trade
obligations); (2) obligations as lessee under Capital Leases; (3) current
liabilities in respect of unfunded vested benefits under any Plan; (4)
obligations under letters of credit issued for the account of any Person; (5)
all obligations arising under bankers' or trade acceptance facilities; (6) all
guarantees, endorsements (other than for collection or deposit in the ordinary
course of business), and other contingent obligations to purchase any of the
items included in this definition, to provide funds for payment, to supply funds
to invest in any Person, or otherwise to assure a creditor against loss; (7) all
obligations secured by any Lien on property owned by the Person whose Debt is
being measured, whether or not the obligations have been assumed; and (8) all
obligations under any agreement providing for contingent participation or other
hedging mechanisms with respect to interest payable on any of the items
described above in this definition.
"Default" means any event which with the giving of notice or lapse of
time, or both, would become an Event of Default.
"Default Rate" means a rate per annum equal to: (1) with respect to
Base Rate Loans and Swing Loans, a variable rate 3% above the rate of interest
then in effect thereon; and (2) with respect to LIBOR Loans and Bid Rate Loans,
a fixed rate 3% above the rate(s) of interest in effect thereon (including the
Applicable Margin or the LIBOR Bid Margin, as the case may be) at the time of
Default until the end of the then current Interest Period therefor and,
thereafter, a variable rate 3% above the rate of interest for a Base Rate Loan.
"Designated Lender" means a special purpose corporation that (i)
shall have become a party to this Agreement pursuant to Section 12.16 and (ii)
is not otherwise a Bank.
"Designating Lender" has the meaning specified in Section 12.16.
"Designation Agreement" means an agreement in substantially the form
of EXHIBIT F, entered into by a Bank and a Designated Lender and accepted by
Administrative Agent.
"Disposition" means a sale (whether by assignment, transfer or
Capital Lease) of an asset.
7
<PAGE> 13
"Documentation Agent" means Union Bank of Switzerland (New York
Branch).
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Elect", "Election" and "Elected" refer to election, if any, by
Borrower pursuant to Section 2.12 to have all or a portion of an advance of the
Ratable Loans be outstanding as LIBOR Loans.
"Environmental Discharge" means any discharge or release of any
Hazardous Materials in violation of any applicable Environmental Law.
"Environmental Law" means any applicable Law relating to pollution or
the environment, including Laws relating to noise or to emissions, discharges,
releases or threatened releases of Hazardous Materials into the work place, the
community or the environment, or otherwise relating to the generation,
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials.
"Environmental Notice" means any written complaint, order, citation
or notice from any Person (1) affecting or relating to Borrower's compliance
with any Environmental Law in connection with any activity or operations at any
time conducted by Borrower, (2) relating to (a) the existence of any Hazardous
Materials contamination or Environmental Discharges or threatened Hazardous
Materials contamination or Environmental Discharges at any of Borrower's
locations or facilities or (b) remediation of any Environmental Discharge or
Hazardous Materials at any such location or facility or any part thereof; or (3)
any violation or alleged violation by Borrower of any relevant Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
including the rules and regulations promulgated thereunder.
"ERISA Affiliate" means any corporation which is a member of the same
controlled group of corporations (within the meaning of Section 414(b) of the
Code) as Borrower, or any trade or business which is under common control
(within the meaning of Section 414(c) of the Code) with Borrower, or any
organization which is required to be treated as a single employer with Borrower
under Section 414(m) or 414(o) of the Code.
"Event of Default" has the meaning specified in Section 9.01.
"Extension Option", "Notice to Extend" and "Request to Extend" have
the respective meanings specified in Section 2.19.
8
<PAGE> 14
"Facility Fee Rate" means the rate per annum determined, at any time,
based on Borrower's Credit Rating in accordance with the following table. Any
change in Borrower's Credit Rating which causes it to move into a different
range on the table shall effect an immediate change in the Facility Fee Rate.
<TABLE>
<CAPTION>
Borrower's Credit Rating Facility Fee Rate
(S&P/Moody's) (% per annum)
------------- -------------
<S> <C>
Below BBB-/Baa3 or unrated 0.25
BBB-/Baa3 0.20
BBB/Baa2 0.150
BBB+/Baa1 0.150
A-/A3 or higher 0.150
</TABLE>
"Federal Funds Rate" means, for any day, the rate per annum
(expressed on a 360-day basis of calculation) equal to the weighted average of
the rates on overnight federal funds transactions as published by the Federal
Reserve Bank of New York for such day provided that (1) if such day is not a
Banking Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the immediately preceding Banking Day as so published on the
next succeeding Banking Day; and (2) if no such rate is so published on such
next succeeding Banking Day, the Federal Funds Rate for such day shall be the
average of the rates quoted by three (3) Federal Funds brokers to Administrative
Agent on such day on such transactions.
"Fiscal Year" means each period from January 1 to December 31.
"Fleet" has the meaning specified in the preamble.
"Funds From Operations" means Combined EBITDA less the sum of
Interest Expense and income taxes included in Combined EBITDA.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, applied on a basis consistent
with those used in the preparation of the financial statements referred to in
Section 5.13 (except for changes concurred in by Borrower's Accountants).
"Good Faith Contest" means the contest of an item if: (1) the item is
diligently contested in good faith, and, if appropriate, by proceedings timely
instituted; (2) reserves that are adequate based on reasonably foreseeable
likely outcomes are established with respect to the contested item; (3) during
the period of such contest, the enforcement of any contested item is effectively
stayed, delayed or postponed; and (4) the failure to pay or comply with the
contested item during the period of the contest is not likely to result in a
Material Adverse Change.
"Governmental Approvals" means any authorization, consent, approval,
license, permit, certification, or exemption of, registration or filing with or
report or notice to, any Governmental Authority.
9
<PAGE> 15
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Hazardous Materials" means any pollutant, effluents, emissions,
contaminants, toxic or hazardous wastes or substances, as any of those terms are
defined from time to time in or for the purposes of any relevant Environmental
Law, including asbestos fibers and friable asbestos, polychlorinated biphenyls,
and any petroleum or hydrocarbon-based products or derivatives.
"Initial Advance" means the first advance of proceeds of the Loans.
"Interest Expense" means, for any period of time, Borrower's share of
the consolidated interest expense (without deduction of consolidated interest
income, and excluding (x) interest expense on construction loans and (y) other
capitalized interest expense in respect of either construction activity or
construction loans, in any such case under clauses (x) or (y), only until
completion of the relevant construction) of Borrower and its Consolidated
Businesses, including, without limitation or duplication (or, to the extent not
so included, with the addition of), (1) the portion of any rental obligation in
respect of any Capital Lease obligation allocable to interest expense in
accordance with GAAP; (2) the amortization of Debt discounts; (3) any payments
or fees (other than up-front fees) with respect to interest rate swap or similar
agreements; and (4) the interest expense and items listed in clauses (1) through
(3) above applicable to each of the UJVs multiplied by Borrower's respective
beneficial interests in the UJVs, in all cases as reflected in Borrower's
Consolidated Financial Statements.
"Interest Period" means, (1) with respect to any LIBOR Loan, the
period commencing on the date the same is advanced, converted from a Base Rate
Loan or Continued, as the case may be, and ending, as Borrower may select
pursuant to Section 2.05, on the numerically corresponding day in the first,
second or third calendar month thereafter, provided that each such Interest
Period which commences on the last Banking Day of a calendar month (or on any
day for which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Banking Day of the appropriate
calendar month; (2) with respect to any LIBOR Bid Rate Loan, the period
commencing on the date the same is advanced and ending, as Borrower may select
pursuant to Section 2.02, on the numerically corresponding day in the first,
second or third calendar month thereafter, provided that each such Interest
Period which commences on the last Banking Day of a calendar month (or on any
day for which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Banking Day of the appropriate
calendar month; and (3) with respect to any Absolute Bid Rate Loan, the period
commencing on the date the same is advanced and ending, as Borrower may select
pursuant to Section 2.02, provided, however, that each such period shall not be
less than fourteen (14) days nor more than ninety (90) days.
"Invitation for Bid Rate Quotes" has the meaning specified in Section
2.02 (b).
"Law" means any federal, state or local statute, law, rule,
regulation, ordinance, order, code, or rule of common law, now or hereafter in
effect, and in each case as amended, and any judicial or administrative order,
consent decree or judgment.
10
<PAGE> 16
"Letter of Credit" has the meaning specified in Section 2.16(a).
"LIBOR Auction" means a solicitation of Bid Rate Quotes setting forth
LIBOR Bid Margins pursuant to Section 2.02.
"LIBOR Base Rate" means, with respect to any Interest Period
therefor, the rate per annum (rounded up, if necessary, to the nearest 1/100 of
1%) that appears on Dow Jones Page 3750 at approximately 11:00 a.m. (London
time) on the date (the "LIBOR Determination Date") two (2) Banking Days prior to
the first day of the applicable Interest Period, for the same period of time as
the Interest Period; or, if such rate does not appear on Dow Jones Page 3750 as
of approximately 11:00 a.m. (London time) on the LIBOR Determination Date, the
rate (rounded up, if necessary, to the nearest 1/100 of 1%) for deposits in
Dollars for a period comparable to the applicable Interest Period that appears
on the Reuters Screen LIBOR Page as of approximately 11:00 a.m. (London time) on
the LIBOR Determination Date. If such rate does not appear on either Dow Jones
Page 3750 or on the Reuters Screen LIBOR Page as of approximately 11:00 a.m.
(London time) on the LIBOR Determination Date, the LIBOR Base Rate for the
Interest Period will be determined on the basis of the offered rates for
deposits in Dollars for the same period of time as such Interest Period that are
offered by four (4) major banks in the London interbank market at approximately
11:00 a.m. (London time) on the LIBOR Determination Date. Administrative Agent
will request that the principal London office of each of the four (4) major
banks provide a quotation of its Dollar deposit offered rate. If at least two
(2) such quotations are provided, the LIBOR Base Rate will be the arithmetic
mean of the quotations. If fewer than two (2) quotations are provided as
requested, the LIBOR Base Rate will be determined on the basis of the rates
quoted for loans in Dollars to leading European banks for amounts comparable to
such amount requested by Borrower for the same period of time as such Interest
Period offered by major banks in New York City at approximately 11:00 a.m. (New
York time) on the LIBOR Determination Date. In the event that Administrative
Agent is unable to obtain any such quotation as provided above, it will be
deemed that the LIBOR Base Rate cannot be determined. For purposes of the
foregoing definition, "Dow Jones Page 3750" means the display designated as
"Page 3750" on the Dow Jones Markets Service (or such other page as may replace
Page 3750 on that 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 Dollar
deposits); and "Reuters Screen LIBOR Page" means the display designated as page
"LIBOR" on the Reuters Monitor Money Rates Service (or such other page as may
replace the LIBOR page on that service for the purpose of displaying interbank
rates from London in Dollars).
"LIBOR Bid Margin" has the meaning specified in Section 2.02(c)(2).
"LIBOR Bid Rate" means the rate per annum equal to the sum of (1) the
LIBOR Interest Rate for the LIBOR Bid Rate Loan and Interest Period in question
and (2) the LIBOR Bid Margin.
"LIBOR Bid Rate Loan" means a Bid Rate Loan bearing interest at the
LIBOR Bid Rate.
11
<PAGE> 17
"LIBOR Interest Rate" means, for any LIBOR Loan or LIBOR Bid Rate
Loan, a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) determined by Administrative Agent to be equal to the quotient of (1) the
LIBOR Base Rate for such LIBOR Loan or LIBOR Bid Rate Loan, as the case may be,
for the Interest Period therefor divided by (2) one minus the LIBOR Reserve
Requirement for such LIBOR Loan or LIBOR Bid Rate Loan, as the case may be, for
such Interest Period.
"LIBOR Loan" means all or any portion (as the context requires) of
any Bank's Ratable Loan which shall accrue interest at rate(s) determined in
relation to LIBOR Interest Rate(s).
"LIBOR Reserve Requirement" means, for any LIBOR Loan or LIBOR Bid
Rate Loan, the average maximum rate at which reserves (including any marginal,
supplemental or emergency reserves) are required to be maintained during the
Interest Period for such LIBOR Loan or LIBOR Bid Rate Loan under Regulation D by
member banks of the Federal Reserve System in New York City with deposits
exceeding $1,000,000,000 against "Eurocurrency liabilities" (as such term is
used in Regulation D). Without limiting the effect of the foregoing, the LIBOR
Reserve Requirement shall also reflect any other reserves required to be
maintained by such member banks by reason of any Regulatory Change against (1)
any category of liabilities which includes deposits by reference to which the
LIBOR Base Rate is to be determined as provided in the definition of "LIBOR Base
Rate" in this Section 1.01 or (2) any category of extensions of credit or other
assets which include loans the interest rate on which is determined on the basis
of rates referred to in said definition of "LIBOR Base Rate".
"Lien" means any mortgage, deed of trust, pledge, negative pledge,
security interest, hypothecation, assignment for collateral purposes, deposit
arrangement, lien (statutory or other), or other security agreement or charge of
any kind or nature whatsoever of any third party (excluding any right of setoff
but including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable Law of any jurisdiction to evidence any of
the foregoing and carriers, warehousemen, mechanics and other similar inchoate
liens that have been insured against in a manner reasonably satisfactory to the
Required Banks).
"Loan" means, with respect to each Bank, collectively, its Ratable
Loan and Bid Rate Loan(s), and, in the case of the Swing Lender, its Swing
Loan(s).
"Loan Commitment" means, with respect to each Bank, the obligation to
make a Ratable Loan in the principal amount set forth below (subject to change
as a result of assignments by one or more of the Banks pursuant to the third
paragraph of Section 12.05) as such amount may be reduced from time to time in
accordance with the provisions of Section 2.10:
<TABLE>
<CAPTION>
Loan
Bank Commitment
---- ----------
<S> <C>
Morgan $120,000,000
</TABLE>
12
<PAGE> 18
<TABLE>
<S> <C>
Fleet 65,000,000
UBS 65,000,000
Commerzbank AG 50,000,000
Dresdner Bank AG 50,000,000
First Union National Bank 50,000,000
NationsBank, N.A. 50,000,000
PNC Bank, National Association 50,000,000
AMSOUTH Bank 30,000,000
The Long Term Credit Bank of Japan 25,000,000
Summit Bank 25,000,000
The Sumitomo Bank, Limited 20,000,000
TOTAL: $600,000,000
============
</TABLE>
"Loan Documents" means this Agreement, the Notes, the Authorization
Letter and the Solvency Certificate.
"Majority Banks" means at any time the Banks having Pro Rata Shares
aggregating at least 51%; provided, however, that during the existence of an
Event of Default, the "Majority Banks" shall be the Banks holding at least 51%
of the then aggregate unpaid principal amount of the Loans. For purposes of this
definition, a Bank's Loan shall be deemed to include its participating interest
in Swing Loans pursuant to Section 2.18(c) and the Swing Lender's Loans shall be
deemed to exclude such participating interests of other Banks.
"Material Adverse Change" means an effect resulting from any
circumstance or event or series of circumstances or events, of whatever nature,
which does or could reasonably be expected to, on more than an interim basis,
either (1) materially and adversely impair the ability of Borrower and its
Consolidated Businesses, taken as a whole, to fulfill its material obligations
or (2) cause a Default.
"Material Affiliates" means the Affiliates of Borrower described on
EXHIBIT C, together with (or excluding) any Affiliates of Borrower which are
hereafter from time to time reasonably determined by Administrative Agent to be
material (or no longer material), upon written notice to Borrower, based on the
most recent Borrower's Consolidated Financial Statements.
"Maturity Date" means July 1, 2001, subject to extension in
accordance with Section 2.19.
"Moody's" means Moody's Investors Service, Inc.
"Morgan" has the meaning specified in the preamble.
13
<PAGE> 19
"Multiemployer Plan" means a Plan defined as such in Section 3(37) of
ERISA to which contributions have been made by Borrower or any ERISA Affiliate
and which is covered by Title IV of ERISA.
"Note" and "Notes" have the respective meanings specified in Section
2.08.
"Obligations" means each and every obligation, covenant and agreement
of Borrower, now or hereafter existing, contained in this Agreement, and any of
the other Loan Documents, whether for principal, reimbursement obligations,
interest, fees, expenses, indemnities or otherwise, and any amendments or
supplements thereto, extensions or renewals thereof or replacements therefor,
including but not limited to all indebtedness, obligations and liabilities of
Borrower to Administrative Agent and any Bank now existing or hereafter incurred
under or arising out of or in connection with the Notes, this Agreement, the
other Loan Documents, and any documents or instruments executed in connection
therewith; in each case whether direct or indirect, joint or several, absolute
or contingent, liquidated or unliquidated, now or hereafter existing, renewed or
restructured, whether or not from time to time decreased or extinguished and
later increased, created or incurred, and including all indebtedness of
Borrower, under any instrument now or hereafter evidencing or securing any of
the foregoing.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" and "Participations" have the respective meanings
specified in Section 12.05.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan" means any employee benefit or other plan established or
maintained, or to which contributions have been made, by Borrower or any ERISA
Affiliate and which is covered by Title IV of ERISA or to which Section 412 of
the Code applies.
"Presence", when used in connection with any Environmental Discharge
or Hazardous Materials, means and includes presence, generation, manufacture,
installation, treatment, use, storage, handling, repair, encapsulation,
disposal, transportation, spill, discharge and release.
"Prime Rate" means the variable per annum rate of interest designated
from time to time by Fleet National Bank at its principal office in Boston,
Massachusetts as its "prime Rate" (it being understood that the "prime rate" is
a reference rate and does not necessarily represent the lowest or best rate
being charged to any customer).
"Pro Rata Share" means, for purposes of this Agreement and with
respect to each Bank, a fraction, the numerator of which is the amount of such
Bank's Loan Commitment and the denominator of which is the Total Loan
Commitment.
14
<PAGE> 20
"Prohibited Transaction" means any transaction proscribed by Section
406 of ERISA or Section 4975 of the Code and to which no statutory or
administrative exemption applies.
"Ratable Loan" has the meaning specified in Section 2.01(b).
"Ratable Loan Note" has the meaning specified in Section 2.08.
"Recourse Debt" means Debt, recourse for the satisfaction of which is
not limited to specified collateral.
"Refunded Swing Loans" and "Refunding Date" have the respective
meanings specified in Section 2.18.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be amended or supplemented from time to
time, or any similar Law from time to time in effect.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as the same may be amended or supplemented from time to
time.
"Regulatory Change" means, with respect to any Bank, any change after
the date of this Agreement in United States federal, state, municipal or foreign
laws or regulations (including Regulation D) or the adoption or making after
such date of any interpretations, directives or requests applying to a class of
banks including such Bank of or under any United States, federal, state,
municipal or foreign laws or regulations (whether or not having the force of
law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty (30) day notice
period is waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
Section 2615.
"Required Banks" means at any time the Banks having Pro Rata Shares
aggregating at least 66 2/3%; provided, however, that during the existence of an
Event of Default, the "Required Banks" shall be the Banks holding at least 66
2/3% of the then aggregate unpaid principal amount of the Loans. For purposes of
this definition, a Bank's Loan shall be deemed to include its participating
interest in Swing Loans pursuant to Section 2.18(c) and the Swing Lender's Loans
shall be deemed to exclude such participating interests of other Banks.
"Secured Indebtedness" means that portion of Total Outstanding
Indebtedness that is secured.
"Solvency Certificate" means a certificate in the form of EXHIBIT D,
to be delivered by Borrower pursuant to the terms of this Agreement.
15
<PAGE> 21
"Solvent" means, when used with respect to any Person, that the fair
value of the property of such Person, on a going concern basis, is greater than
the total amount of liabilities (including, without limitation, contingent
liabilities) of such Person.
"S&P" means Standard and Poor's Ratings Services, a division of
McGraw-Hill Companies.
"Supplemental Fee Letter" means, collectively, those certain letter
agreements, each dated on or prior to the date hereof, between Borrower and each
of Morgan, Fleet and UBS.
"Swing Lender" means Fleet in its capacity as the lender under the
Swing Loan facility described in Section 2.18, and its successors in such
capacity.
"Swing Loan" means a loan made by the Swing Lender pursuant to
Section 2.18.
"Swing Loan Commitment" means $20,000,000.
"Swing Loan Note" has the meaning specified in Section 2.08.
"Swing Loan Refund Amount" has the meaning specified in Section 2.18.
"Syndication Agent" means JP Morgan Securities, Inc.
"Total Loan Commitment" means an amount equal to the aggregate amount
of all Loan Commitments (i.e., $600,000,000).
"Total Outstanding Indebtedness" means the sum, without duplication,
of (1) Consolidated Outstanding Indebtedness; (2) Borrower's Share of UJV
Combined Outstanding Indebtedness; and (3) Contingent Obligations.
"UBS" has the meaning specified in the preamble.
"UJV Combined Outstanding Indebtedness" means, as of any time, all
indebtedness and liability for borrowed money, secured or unsecured, of the
UJV's, on a combined basis, including mortgage and other notes payable but
excluding any indebtedness which is margin indebtedness on cash and cash
equivalent securities, all as reflected in the balance sheets of each of the
UJVs, prepared in accordance with GAAP.
"UJVs" means the unconsolidated joint ventures (including general and
limited partnerships) in which Borrower owns a beneficial interest and which are
accounted for under the equity method in Borrower's Consolidated Financial
Statements.
"Unencumbered Combined EBITDA" means that portion of Combined EBITDA
attributable to Unencumbered Wholly-Owned Assets (assuming corporate overhead is
allocated proportionately to Unencumbered Wholly-Owned Assets).
"Unencumbered Wholly-Owned Assets" means income-producing assets,
reflected on Borrower's Consolidated Financial Statements, wholly owned,
directly or indirectly,
16
<PAGE> 22
by Borrower which (1) are not, and the direct or indirect interests of Borrower
therein are not, subject to any Lien to secure all or any portion of Secured
Indebtedness or any other encumbrances which, in the reasonable judgment of
Co-Agents, may diminish the value of the asset in question and (2) complies with
the occupancy requirements set forth in the immediately following sentence. In
order to qualify as an Unencumbered Wholly-Owned Asset for a particular calendar
quarter an asset must (1) have average occupancy for the twelve (12)-month
period ending with such quarter of 85% or more and (2) have average quarterly
occupancy for at least three (3) of the four (4) calendar quarters during such
twelve (12)-month period of 85% or more.
"Unsecured Debt Yield" means, for any calendar quarter, the ratio of
(1) Unencumbered Combined EBITDA for such quarter to (2) Unsecured Indebtedness
as of the end of such calendar quarter.
"Unsecured Indebtedness" means that portion of Total Outstanding
Indebtedness that is unsecured.
"Unsecured Interest Expense" means that portion of Interest Expense
relating to Unsecured Indebtedness.
Section 1.02 Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP, and all
financial data required to be delivered hereunder shall be prepared in
accordance with GAAP.
Section 1.03 Computation of Time Periods. Except as otherwise
provided herein, 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 words "to" and "until" each means "to but excluding".
Section 1.04 Rules of Construction. Except as provided otherwise,
when used in this Agreement (1) "or" is not exclusive; (2) a reference to a Law
includes any amendment or modification to such Law; (3) a reference to a Person
includes its permitted successors and permitted assigns; (4) all references to
the singular shall include the plural and vice versa; (5) a reference to an
agreement, instrument or document shall include such agreement, instrument or
document as the same may be amended, modified or supplemented from time to time
in accordance with its terms and as permitted by the Loan Documents; (6) all
references to Articles, Sections or Exhibits shall be to Articles, Sections and
Exhibits of this Agreement unless otherwise indicated; (7) "hereunder",
"herein", "hereof" and the like refer to this Agreement as a whole; and (8) all
Exhibits to this Agreement shall be incorporated into this Agreement.
17
<PAGE> 23
ARTICLE II
THE LOANS
Section 2.01 Ratable Loans; Bid Rate Loans; Purpose. (a) Subject to
the terms and conditions of this Agreement, the Banks agree to make loans to
Borrower as provided in this Article II.
(b) Each of the Banks severally agrees to make a loan to Borrower
(each such loan by a Bank, a "Ratable Loan") in an amount up to its Loan
Commitment pursuant to which the Bank shall from time to time advance and
re-advance to Borrower an amount equal to its Pro Rata Share of the excess (the
"Available Total Loan Commitment") of the Total Loan Commitment over the sum of
(1) all previous advances (including Bid Rate Loans and Swing Loans) made by the
Banks which remain unpaid and (2) the outstanding amount of all Letters of
Credit. Within the limits set forth herein, Borrower may borrow from time to
time under this paragraph (b) and prepay from time to time pursuant to Section
2.09 (subject, however, to the restrictions on prepayment set forth in said
Section), and thereafter re-borrow pursuant to this paragraph (b). The Ratable
Loans may be outstanding as (1) Base Rate Loans; (2) LIBOR Loans; or (3) a
combination of the foregoing, as Borrower shall elect and notify Administrative
Agent in accordance with Section 2.14. The LIBOR Loan, Bid Rate Loan and Base
Rate Loan of each Bank shall be maintained at such Bank's Applicable Lending
Office.
(c) In addition to Ratable Loans pursuant to paragraph (b) above, so
long as Borrower's Credit Rating is BBB- or better by S&P or Baa(3) or better by
Moody's, one or more Banks may, at Borrower's request and in their sole
discretion, make non-ratable loans which shall bear interest at the LIBOR Bid
Rate in accordance with Section 2.02 (such loans being referred to in this
Agreement as "Bid Rate Loans"). Borrower may borrow Bid Rate Loans from time to
time pursuant to this paragraph (c) in an amount up to the Available Total Loan
Commitment at the time of the borrowing (taking into account any repayments of
the Loans made simultaneously therewith) and shall repay such Bid Rate Loans as
required by Section 2.08, and it may thereafter re-borrow pursuant to this
paragraph (c); provided, however, that the aggregate outstanding principal
amount of Bid Rate Loans at any particular time shall not exceed the Bid
Borrowing Limit.
(d) The obligations of the Banks under this Agreement are several,
and no Bank shall be responsible for the failure of any other Bank to make any
advance of a Loan to be made by such other Bank. However, the failure of any
Bank to make any advance of the Loan to be made by it hereunder on the date
specified therefor shall not relieve any other Bank of its obligation to make
any advance of its Loan specified hereby to be made on such date.
(e) Borrower shall use the proceeds of the Loans for general capital
and working capital requirements of Borrower and its Consolidated Businesses and
UJVs (which shall include, but not be limited to, Acquisitions and/or costs
incurred in connection with the development, construction or reconstruction of
multi-family real estate properties). In no event shall proceeds of the Loans be
used in a manner that would violate Regulation U or in connection with a hostile
acquisition.
18
<PAGE> 24
Section 2.02 Bid Rate Loans. (a) When Borrower wishes to request
offers from the Banks to make Bid Rate Loans, it shall transmit to
Administrative Agent by facsimile a request (a "Bid Rate Quote Request")
substantially in the form of EXHIBIT G-1 so as to be received not later than
12:00 Noon (New York time) on (x) the fifth Banking Day prior to the date for
funding of the LIBOR Bid Rate Loan(s) proposed therein in the case of a LIBOR
Auction or (y) the second Banking Day prior to the date for funding of the
Absolute Bid Rate Loan(s) proposed therein in the case of an Absolute Rate
Auction, specifying:
(1) the proposed date of funding of the Bid Rate Loan(s), which shall
be a Banking Day;
(2) the aggregate amount of the Bid Rate Loans requested, which shall
be $20,000,000 or a larger integral multiple of $500,000;
(3) the duration of the Interest Period(s) applicable thereto,
subject to the provisions of the definition of "Interest Period" in Section
1.01 and the provisions of Section 2.05; and
(4) whether the Bid Rate Quotes requested are to set forth a LIBOR
Bid Margin (to be used to compute the LIBOR Bid Rate) or an Absolute Bid
Rate.
Borrower may request offers to make Bid Rate Loans for more than one (1)
Interest Period in a single Bid Rate Quote Request. No more than two (2) Bid
Rate Quote Requests may be submitted by Borrower during any calendar month and
no more than twenty-four (24) Bid Rate Quote Requests per year may be submitted
by Borrower.
(b) Promptly (the same day, if possible) upon receipt of a Bid Rate
Quote Request, Administrative Agent shall send to the Banks by facsimile an
invitation (an "Invitation for Bid Rate Quotes") substantially in the form of
EXHIBIT G-2, which shall constitute an invitation by Borrower to the Banks to
submit Bid Rate Quotes offering to make Bid Rate Loans to which such Bid Rate
Quote Request relates in accordance with this Section.
(c) (1) Each Bank may submit a Bid Rate Quote containing an
offer or offers to make Bid Rate Loans in response to any Invitation for Bid
Rate Quotes. Each Bid Rate Quote must comply with the requirements of this
paragraph (c) and must be submitted to Administrative Agent by facsimile not
later than (x) 2:00 p.m. (New York time) on the fourth Banking Day prior to the
proposed date of the LIBOR Bid Rate Loan(s) in the case of a LIBOR Auction or
(y) 9:30 a.m. (New York time) on the Banking Day immediately preceding the
proposed date of the Absolute Bid Rate Loan(s) in the case of an Absolute Rate
Auction; provided that Bid Rate Quotes submitted by Administrative Agent (or any
Affiliate of Administrative Agent) in its capacity as a Bank may be submitted,
and may only be submitted, if Administrative Agent or such Affiliate notifies
Borrower of the terms of the offer or offers contained therein not later than
(x) one (1) hour prior to the deadline for the other Banks in the case of a
LIBOR Auction or (y) thirty (30) minutes prior to the deadline for the other
Banks in the case of an Absolute Rate Auction. Any Bid Rate Quote so made shall
(subject to Borrower's satisfaction of the conditions precedent set forth in
this Agreement to its entitlement to an advance) be irrevocable except with the
written consent of Administrative Agent given on the
19
<PAGE> 25
instructions of Borrower. Bid Rate Loans to be funded pursuant to a Bid Rate
Quote may, as provided in Section 12.16, be funded by a Bank's Designated
Lender. A Bank making a Bid Rate Quote shall, if then known, specify in its Bid
Rate Quote whether the related Bid Rate Loans are intended to be funded by such
Bank's Designated Lender, as provided in Section 12.16, provided, however, that
whether or not the same is specified in a Bank's Bid Rate Quote, such Bank's Bid
Rate Loan(s) may be funded by its Designated Lender at the time of funding
thereof.
(2) Each Bid Rate Quote shall be in substantially the form of
EXHIBIT G-3 and shall in any case specify:
(i) the proposed date of funding of the Bid Rate Loan(s);
(ii) the principal amount of the Bid Rate Loan(s) for which each
such offer is being made, which principal amount (w) may be greater than or
less than the Loan Commitment of the quoting Bank, (x) must be in the
aggregate $20,000,000 or a larger integral multiple of $500,000, (y) may
not exceed the principal amount of Bid Rate Loans for which offers were
requested and (z) may be subject to an aggregate limitation as to the
principal amount of Bid Rate Loans for which offers being made by such
quoting Bank may be accepted;
(iii) in the case of a LIBOR Auction, the margin above or below
the applicable LIBOR Interest Rate (the "LIBOR Bid Margin") offered for
each such LIBOR Bid Rate Loan, expressed as a percentage per annum
(specified to the nearest 1/1,000th of 1%) to be added to (or subtracted
from) the applicable LIBOR Interest Rate;
(iv) in the case of an Absolute Rate Auction, the rate of
interest, expressed as a percentage per annum (specified to the nearest
1/1,000th of 1%) (the "Absolute Bid Rate"), offered for each such Absolute
Bid Rate Loan;
(v) the applicable Interest Period; and
(vi) the identity of the quoting Bank.
A Bid Rate Quote may set forth up to three (3) separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Bid Rate Quotes.
(3) Any Bid Rate Quote shall be disregarded if it:
(i) is not substantially in conformity with EXHIBIT G-3 or does
not specify all of the information required by sub-paragraph (c)(2) above;
(ii) contains qualifying, conditional or similar language
(except for an aggregate limitation as provided in sub-paragraph (c)(2)(ii)
above);
(iii) proposes terms other than or in addition to those set forth
in the applicable Invitation for Bid Rate Quotes; or
20
<PAGE> 26
(iv) arrives after the time set forth in sub-paragraph (c)(1)
above.
(d) Administrative Agent shall (x) not later than 3:00 p.m. (New York
time) on the fourth Banking Day prior to the proposed date of funding of the
LIBOR Bid Rate Loan(s) in the case of a LIBOR Auction or (y) not later than
10:30 a.m. (New York time) on the Banking Day immediately preceding the proposed
date of funding of the Absolute Bid Rate Loan(s) in the case of an Absolute Rate
Auction, notify Borrower in writing of the terms of any Bid Rate Quote submitted
by a Bank that is in accordance with paragraph (c). In addition, Administrative
Agent shall, on the Banking Day of its receipt thereof, notify Borrower in
writing of any Bid Rate Quote that amends, modifies or is otherwise inconsistent
with a previous Bid Rate Quote submitted by such Bank with respect to the same
Bid Rate Quote Request. Any such subsequent Bid Rate Quote shall be disregarded
by Administrative Agent unless such subsequent Bid Rate Quote is submitted
solely to correct a manifest error in such former Bid Rate Quote. Administrative
Agent's notice to Borrower shall specify (A) the aggregate principal amount of
Bid Rate Loans for which offers have been received for each Interest Period
specified in the related Bid Rate Quote Request, (B) the respective principal
amounts, LIBOR Bid Margins and Absolute Bid Rates so offered and (C) if
applicable, limitations on the aggregate principal amount of Bid Rate Loans for
which offers in any single Bid Rate Quote may be accepted.
(e) Not later than (x) 9:30 a.m. (New York time) on the third Banking
Day prior to the proposed date of funding of the LIBOR Bid Rate Loan in the case
of a LIBOR Auction or (y) the Banking Day immediately preceding the proposed
date of funding of the Absolute Bid Rate Loan in the case of an Absolute Rate
Auction, Borrower shall notify Administrative Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to paragraph (d). A
notice of acceptance shall be substantially in the form of EXHIBIT G-4 and shall
specify the aggregate principal amount of offers for each Interest Period that
are accepted. Borrower may accept any Bid Rate Quote in whole or in part;
provided that:
(i) the principal amount of each Bid Rate Loan may not exceed
the applicable amount set forth in the related Bid Rate Quote Request or be
less than $500,000 per Bank and shall be an integral multiple of $100,000;
(ii) acceptance of offers with respect to a particular Interest
Period may only be made on the basis of ascending LIBOR Bid Margins or
Absolute Bid Rates, as the case may be, offered for such Interest Period
from the lowest effective cost; and
(iii) Borrower may not accept any offer that is described in
sub-paragraph (c)(3) or that otherwise fails to comply with the
requirements of this Agreement.
(f) If offers are made by two (2) or more Banks with the same LIBOR
Bid Margins or Absolute Bid Rates, as the case may be, for a greater aggregate
principal amount than the amount in respect of which such offers are accepted
for the related Interest Period, the principal amount of Bid Rate Loans in
respect of which such offers are accepted shall be allocated by Administrative
Agent among such Banks as nearly as possible (in multiples of $100,000, as
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Administrative Agent shall promptly (and in
any event within one (1) Banking Day after such offers are accepted) notify
Borrower and each such Bank in
21
<PAGE> 27
writing of any such allocation of Bid Rate Loans. Determinations by
Administrative Agent of the allocation of Bid Rate Loans shall be conclusive in
the absence of manifest error.
(g) In the event that Borrower accepts the offer(s) contained in one
(1) or more Bid Rate Quotes in accordance with paragraph (e), the Bank(s) making
such offer(s) shall make a Bid Rate Loan in the accepted amount (as allocated,
if necessary, pursuant to paragraph (f)) on the date specified therefor, in
accordance with the procedures specified in Section 2.04, and such Bid Rate Loan
shall bear interest at the accepted LIBOR Bid Rate or Absolute Bid Rate, as the
case may be, for the applicable Interest Period.
(h) Notwithstanding anything to the contrary contained herein, each
Bank shall be required to fund its Pro Rata Share of the Available Total Loan
Commitment in accordance with Section 2.01(b) despite the fact that any Bank's
Loan Commitment may have been or may be exceeded as a result of such Bank's
making Bid Rate Loans.
(i) A Bank who is notified that it has been selected to make a Bid
Rate Loan as provided above may designate its Designated Lender (if any) to fund
such Bid Rate Loan on its behalf, as described in Section 12.16. Any Designated
Lender which funds a Bid Rate Loan shall on and after the time of such funding
become the obligee under such Bid Rate Loan and be entitled to receive payment
thereof when due. No Bank shall be relieved of its obligation to fund a Bid Rate
Loan, and no Designated Lender shall assume such obligation, prior to the time
the applicable Bid Rate Loan is funded.
(j) Administrative Agent shall promptly notify each Bank which
submitted a Bid Rate Quote of Borrower's acceptance or non-acceptance thereof.
At the request of any Bank which submitted a Bid Rate Quote, Administrative
Agent will promptly notify all Banks which submitted Bid Rate Quotes of (a) the
aggregate principal amount of, and (b) the range of Absolute Bid Rates or LIBOR
Bid Margins of, the accepted Bid Rate Loans for each requested Interest Period.
Section 2.03 Advances, Generally. The Initial Advance shall be in
the minimum amount of $500,000 and in integral multiples of $100,000 above such
amount and shall be made upon satisfaction of the conditions set forth in
Section 4.01. Subsequent advances shall be made no more frequently than weekly
thereafter, upon satisfaction of the conditions set forth in Section 4.02. The
amount of each advance subsequent to the Initial Advance shall be in the minimum
amount of $500,000 (unless less than $500,000 is available for disbursement
pursuant to the terms hereof at the time of any subsequent advance, in which
case the amount of such subsequent advance shall be equal to such remaining
availability) and in integral multiples of $100,000 above such amount.
Additional restrictions on the amounts and timing of, and conditions to the
making of, advances of Bid Rate Loans are set forth in Section 2.02.
Section 2.04 Procedures for Advances. In the case of advances of
Ratable Loans hereunder, Borrower shall submit to Administrative Agent a request
for each advance, stating the amount requested and certifying the purpose, in
general terms, for which such advance is to be used, no later than 11:00 a.m.
(New York time) on the date, in the case of advances of Base Rate Loans, which
is one (1) Banking Day, and, in the case of advances of LIBOR Loans, which is
three (3) Banking Days, prior to the date the advance is to be made. In
22
<PAGE> 28
the case of advances of Swing Loans hereunder, Borrower shall submit to
Administrative Agent a request for such advance, stating the amount requested
and certifying the purpose, in general terms, for which such advance is to be
used, no later than 11:00 a.m. (New York time) on the date which is one (1)
Banking Day prior to the date the advance is to be made. In the case of advances
of Bid Rate Loans hereunder, Borrower shall submit a Bid Rate Quote Request at
the time specified in Section 2.02, accompanied by a certification of the
purpose, in general terms, for which the advance is to be used. Administrative
Agent, on the Banking Day of its receipt and approval of the request for
advance, will so notify the Banks (or, in the case of Swing Loans, the Swing
Lender) either by telephone or by facsimile. Not later than 11:00 a.m. (New York
time) on the date of each advance, each Bank (in the case of Ratable Loans) or
the applicable Bank(s) (in the case of Bid Rate Loans) or the Swing Lender (in
the case of Swing Loans) shall, through its Applicable Lending Office and
subject to the conditions of this Agreement, make the amount to be advanced by
it on such day available to Administrative Agent, at Administrative Agent's
Office and in immediately available funds for the account of Borrower. The
amount so received by Administrative Agent shall, subject to the conditions of
this Agreement, be made available to Borrower, in immediately available funds,
by Administrative Agent's crediting an account of Borrower designated by
Borrower and maintained with Administrative Agent at Administrative Agent's
Office.
Section 2.05 Interest Periods; Renewals. In the case of the LIBOR
Loans and Bid Rate Loans, Borrower shall select an Interest Period of any
duration in accordance with the definition of Interest Period in Section 1.01,
subject to the following limitations: (1) no Interest Period may extend beyond
the Maturity Date; and (2) if an Interest Period would end on a day which is not
a Banking Day, such Interest Period shall be extended to the next Banking Day,
unless such Banking Day would fall in the next calendar month, in which event
such Interest Period shall end on the immediately preceding Banking Day. Only
twelve (12) discrete segments of a Bank's Ratable Loan bearing interest at a
LIBOR Interest Rate, for a designated Interest Period, pursuant to a particular
Election, Conversion or Continuation, may be outstanding at any one time (each
such segment of each Bank's Ratable Loan corresponding to a proportionate
segment of each of the other Banks' Ratable Loans).
Upon notice to Administrative Agent as provided in Section 2.14,
Borrower may Continue any LIBOR Loan on the last day of the Interest Period of
the same or different duration in accordance with the limitations provided
above. If Borrower shall fail to give notice to Administrative Agent of such a
Continuation, such LIBOR Loan shall automatically become a LIBOR Loan with an
Interest Period of one (1) month on the last day of the current Interest Period.
Administrative Agent shall notify each of the Banks, either by telephone or by
facsimile, at least two (2) Banking Days prior to the termination of the
Interest Period in question in the event of such failure by Borrower to give
such notice of Continuation.
Section 2.06 Interest. Borrower shall pay interest to
Administrative Agent for the account of the applicable Bank on the outstanding
and unpaid principal amount of the Loans, at a rate per annum as follows: (1)
for Base Rate Loans at a rate equal to the Base Rate plus the Applicable Margin;
(2) for LIBOR Loans at a rate equal to the applicable LIBOR Interest Rate plus
the Applicable Margin; (3) for LIBOR Bid Rate Loans at a rate equal to the
applicable LIBOR Bid Rate; (4) for Absolute Bid Rate Loans at a rate equal to
the applicable Absolute Bid Rate; and (5) for Swing Loans at a three (3)-day
LIBOR rate, as determined by the Swing
23
<PAGE> 29
Lender. Any principal amount not paid when due (when scheduled, at acceleration
or otherwise) shall bear interest thereafter, payable on demand, at the Default
Rate.
The interest rate on Base Rate Loans shall change when the Base Rate
changes. Interest on Base Rate Loans, LIBOR Loans, Bid Rate Loans and Swing
Loans shall not exceed the maximum amount permitted under applicable law.
Interest shall be calculated for the actual number of days elapsed on the basis
of, in the case of Base Rate Loans, LIBOR Loans, Bid Rate Loans and Swing Loans,
three hundred sixty (360) days.
Accrued interest shall be due and payable in arrears upon and with
respect to any payment or prepayment of principal and, (x) in the case of Base
Rate Loans, LIBOR Loans and Swing Loans, on the first Banking Day of each
calendar month and (y) in the case of Bid Rate Loans, at the expiration of the
Interest Period applicable thereto; provided, however, that interest accruing at
the Default Rate shall be due and payable on demand.
Section 2.07 Fees. (a) Borrower agrees to pay to and for the
accounts of the parties specified therein, the fees provided for in the
Supplemental Fee Letter.
(b) Borrower shall pay to Administrative Agent for the account of
each Bank a facility fee computed on the daily Loan Commitment of such Bank
(irrespective of usage) at a rate per annum equal to the daily Facility Fee
Rate, calculated on the basis of a year of three hundred sixty (360) days for
the actual number of days elapsed. The accrued facility fee shall be due and
payable quarterly in arrears on the tenth (10th) day of October, January, April
and July of each year, commencing on the first such date after the Closing Date,
and upon the Maturity Date (as stated or by acceleration or otherwise) or
earlier termination of the Loan Commitments.
Section 2.08 Notes. The Ratable Loan made by each Bank under this
Agreement shall be evidenced by, and repaid with interest in accordance with, a
single promissory note of Borrower in the form of EXHIBIT B duly completed and
executed by Borrower, in the principal amount equal to such Bank's Loan
Commitment, payable to such Bank for the account of its Applicable Lending
Office (each such note, as the same may hereafter be amended, modified,
extended, severed, assigned, renewed or restated from time to time, including
any substitute notes pursuant to Section 3.07 or 12.05, a "Ratable Loan Note").
The Bid Rate Loans of the Banks shall be evidenced by a single global promissory
note of Borrower, in the form of EXHIBIT B-1, duly completed and executed by
Borrower, in the principal amount of $400,000,000, payable to Administrative
Agent for the account of the respective Banks making Bid Rate Loans (such note,
as the same may hereafter be amended, modified, extended, severed, assigned,
substituted, renewed or restated from time to time, the "Bid Rate Loan Note").
The Swing Loan of the Swing Lender shall be evidenced by, and repaid with
interest in accordance with, a promissory note of Borrower, in the form of
EXHIBIT B-2, duly completed and executed by Borrower, payable to the Swing
Lender (such note, as the same may hereafter be amended, modified extended,
severed, assigned, substituted, renewed or restated from time to time, the
"Swing Loan Note"). A particular Bank's Ratable Loan Note, together with its
interest, if any, in the Bid Rate Loan Note, and, in the case of the Swing
Lender, the Swing Loan Note, are referred to collectively in this Agreement as
such Bank's "Note"; all such Ratable Loan Notes and interests and Swing Loan
Notes are referred to collectively in this Agreement as the "Notes". The Ratable
Loan Notes shall mature, and all outstanding principal
24
<PAGE> 30
and accrued interest and other sums thereunder shall be paid in full, on the
Maturity Date, as the same may be accelerated. The outstanding principal amount
of each Bid Rate Loan evidenced by the Bid Rate Loan Note, and all accrued
interest and other sums with respect thereto, shall become due and payable to
the Bank making such Bid Rate Loan at the earlier of the expiration of the
Interest Period applicable thereto or the Maturity Date, as the same may be
accelerated. Principal amounts evidenced by the Swing Loan Notes shall become
due and payable three (3) Banking Days after said amounts are advanced.
Each Bank is hereby authorized by Borrower to endorse on the schedule
attached to the Ratable Loan Note held by it, the amount of each advance and
each payment of principal received by such Bank for the account of its
Applicable Lending Office(s) on account of its Ratable Loan, which endorsement
shall, in the absence of manifest error, be conclusive as to the outstanding
balance of the Ratable Loan made by such Bank. The Swing Lender is hereby
authorized by Borrower to endorse on the schedule attached to the Swing Loan
Note held by it, the amount of each advance and each payment of principal
received by the Swing Lender for the account of its Applicable Lending Office(s)
on account of its Swing Loan, which endorsement shall, in the absence of
manifest error, be conclusive as to the outstanding balance of the Swing Loan
made by the Swing Lender. Administrative Agent is hereby authorized by Borrower
to endorse on the schedule attached to the Bid Rate Loan Note the amount of each
LIBOR Bid Rate Loan and/or Absolute Bid Rate Loan, the name of the Bank making
the same, the date of the advance thereof, the interest rate applicable thereto
and the expiration of the Interest Period applicable thereto (i.e., the maturity
date thereof). The failure by Administrative Agent or any Bank to make such
notations with respect to the Loans or each advance or payment shall not limit
or otherwise affect the obligations of Borrower under this Agreement or the
Notes.
In case of any loss, theft, destruction or mutilation of any Bank's
Note, Borrower shall, upon its receipt of an affidavit of an officer of such
Bank as to such loss, theft, destruction or mutilation and an appropriate
indemnification, execute and deliver a replacement Note to such Bank in the same
principal amount and otherwise of like tenor as the lost, stolen, destroyed or
mutilated Note.
Section 2.09 Prepayments. Without prepayment premium or penalty but
subject to Section 3.05, Borrower may, upon at least one (1) Banking Day's
notice to Administrative Agent in the case of the Base Rate Loans and Swing
Loans, and at least three (3) Banking Days' notice to Administrative Agent in
the case of LIBOR Loans, prepay the Ratable Loans, provided that (1) any partial
prepayment under this Section shall be in integral multiples of $500,000; (2) a
LIBOR Loan or Swing Loan may be prepaid at any time, subject, however, to the
provisions of Section 3.05; and (3) each prepayment under this Section shall
include all interest accrued on the amount of principal prepaid through the date
of prepayment. Prepayment of Bid Rate Loans shall not be permitted.
Section 2.10 Cancellation of Commitments. (a) At any time, Borrower
shall have the right, without premium or penalty, to terminate any unused Loan
Commitments or unused commitment of the Swing Lender to make Swing Loans, in
whole or in part, from time to time, provided that: (1) Borrower shall give
notice of each such termination to Administrative Agent and the Swing Lender, if
applicable, no later then 10:00 a.m. (New York time) on the date which is
fifteen (15) Banking Days prior to the effectiveness of such termination; (2)
the Loan Commitments of each of the Banks, or Swing Lender, as applicable, must
be terminated ratably and simultaneously with those of the other Banks, or Swing
Lender, as applicable; and (3) each partial termination of the Loan Commitments,
or commitments to make Swing Loans, as a whole (and corresponding reduction of
the Total Loan Commitment) shall be in an integral multiple of $1,000,000.
25
<PAGE> 31
(b) The Loan Commitments, to the extent terminated, may not be
reinstated.
Section 2.11 Method of Payment. Borrower shall make each payment
under this Agreement and under the Notes not later than 11:00 a.m. (New York
time) on the date when due in Dollars to Administrative Agent at Administrative
Agent's Office in immediately available funds. Administrative Agent will
thereafter, on the day of its receipt of each such payment, cause to be
distributed to each Bank (1) such Bank's appropriate share (based upon the
respective outstanding principal amounts and rate(s) of interest under the Notes
of the Banks) of the payments of principal and interest in like funds for the
account of such Bank's Applicable Lending Office; and (2) fees payable to such
Bank in accordance with the terms of this Agreement. In the event Administrative
Agent fails to pay funds received from Borrower to the Banks on the date on
which Borrower is credited with payment, Administrative Agent shall pay interest
on such amounts at the Federal Funds Rate until such payment to the Banks is
made. Borrower hereby authorizes Administrative Agent and the Banks, if and to
the extent payment by Borrower is not made when due under this Agreement or
under the Notes, to charge from time to time against any account Borrower
maintains with Administrative Agent or any Bank any amount so due to
Administrative Agent and/or the Banks.
Except to the extent provided in this Agreement, whenever any payment
to be made under this Agreement or under the Notes is due on any day other than
a Banking Day, such payment shall be made on the next succeeding Banking Day,
and such extension of time shall in such case be included in the computation of
the payment of interest and other fees, as the case may be.
Section 2.12 Elections, Conversions or Continuation of Loans.
Subject to the provisions of Article III and Sections 2.05 and 2.13, Borrower
shall have the right to Elect to have all or a portion of any advance of the
Ratable Loans be LIBOR Loans, to Convert Base Rate Loans into LIBOR Loans, to
Convert LIBOR Loans into Base Rate Loans, or to Continue LIBOR Loans as LIBOR
Loans, at any time or from time to time, provided that (1) Borrower shall give
Administrative Agent notice of each such Election, Conversion or Continuation as
provided in Section 2.14; and (2) a LIBOR Loan may be Converted or Continued
only on the last day of the applicable Interest Period for such LIBOR Loan.
Except as otherwise provided in this Agreement, each Election, Continuation and
Conversion shall be applicable to each Bank's Ratable Loan in accordance with
its Pro Rata Share.
Section 2.13 Minimum Amounts. With respect to the Ratable Loans as
a whole, each Election and each Conversion shall be in an amount at least equal
to $1,000,000 and in integral multiples of $500,000.
Section 2.14 Certain Notices Regarding Elections, Conversions and
Continuations of Loans. Notices by Borrower to Administrative Agent of
Elections, Conversions and Continuations of LIBOR Loans shall be irrevocable and
shall be effective only if received by Administrative Agent not later than 10:30
a.m. (New York time) on the number of Banking Days prior to the date of the
relevant Election, Conversion or Continuation specified below:
26
<PAGE> 32
<TABLE>
<CAPTION>
Number of Banking
Notice Days Prior
------ -----------------
<S> <C>
Conversions into Base Rate
Loans two (2)
Elections of, Conversions into or
Continuations as, LIBOR Loans three (3)
</TABLE>
Promptly following its receipt of any such notice, and no later than the close
of business on the Banking Day of such receipt, Administrative Agent shall so
advise the Banks either by telephone or by facsimile. Each such notice of
Election shall specify the portion of the amount of the advance that is to be
LIBOR Loans (subject to Section 2.13) and the duration of the Interest Period
applicable thereto (subject to Section 2.05); each such notice of Conversion
shall specify the LIBOR Loans or Base Rate Loans to be Converted; and each such
notice of Conversion or Continuation shall specify the date of Conversion or
Continuation (which shall be a Banking Day), the amount thereof (subject to
Section 2.13) and the duration of the Interest Period applicable thereto
(subject to Section 2.05). In the event that Borrower fails to Elect to have any
portion of an advance of the Ratable Loans be LIBOR Loans, the entire amount of
such advance shall constitute Base Rate Loans. In the event that Borrower fails
to Continue LIBOR Loans within the time period and as otherwise provided in this
Section, such LIBOR Loans will automatically become LIBOR Loans with an Interest
Period of one (1) month on the last day of the then current applicable Interest
Period for such LIBOR Loans. Administrative Agent shall notify each of the
Banks, either by telephone or by facsimile, at least two (2) Banking Days prior
to the termination of the Interest Period in question in the event of such
failure by Borrower.
Section 2.15 Late Payment Premium. Borrower shall, at
Administrative Agent's option and upon notice to Borrower, pay to Administrative
Agent for the account of the Banks a late payment premium in the amount of 4% of
any payments of interest under the Loans made more than ten (10) days after the
due date thereof, which shall be due with any such late payment.
Section 2.16 Letters of Credit. (a) Borrower, by notice to
Administrative Agent, may request, in lieu of advances of proceeds of the
Ratable Loans, that Administrative Agent issue unconditional, irrevocable
standby letters of credit (each, a "Letter of Credit") for the account of
Borrower, payable by sight drafts, for such beneficiaries and with such other
terms as Borrower shall specify. Promptly upon issuance of a Letter of Credit,
Administrative Agent shall notify each of the Banks.
(b) The amount of any Letter of Credit shall be limited to the lesser
of (x) $75,000,000 less the aggregate amount of all Letters of Credit
theretofore issued or (y) the Available Total Loan Commitment, it being
understood that the amount of each Letter of Credit issued and outstanding shall
effect a reduction, by an equal amount, of the Available Total Loan Commitment
(such reduction to be allocated to each Bank's Ratable Loan ratably in
accordance with the Banks' respective Pro Rata Shares).
27
<PAGE> 33
(c) The amount of each Letter of Credit shall be further subject to
the limitations applicable to amounts of advances set forth in Section 2.03 and
the procedures for the issuance of each Letter of Credit shall be the same as
the procedures applicable to the making of advances as set forth in the first
sentence of Section 2.04. Administrative Agent's issuance of each Letter of
Credit shall be subject to Administrative Agent's determination that Borrower
has satisfied all conditions precedent to its entitlement to an advance of
proceeds of the Loans.
(d) Each Letter of Credit shall expire no later than one (1) month
prior to the Maturity Date, but may have a so-called "evergreen" clause allowing
for the extension of the expiration date thereof upon the extension of the
Maturity Date pursuant to Section 2.19.
(e) In connection with, and as a further condition to the issuance
of, each Letter of Credit, Borrower shall execute and deliver to Administrative
Agent an application for the Letter of Credit on Administrative Agent's standard
form therefor, together with such other documents, opinions and assurances as
Administrative Agent shall reasonably require.
(f) In connection with each Letter of Credit, Borrower hereby
covenants to pay to Administrative Agent the following fees: (1) a fee, payable
quarterly in arrears (on the first Banking Day of each calendar quarter
following the issuance of the Letter of Credit), for the account of the Banks,
computed daily on the amount of the Letter of Credit issued and outstanding at a
rate per annum equal to the "Banks' L/C Fee Rate" (as hereinafter defined) and
(2) the fee, for Administrative Agent's own account, required by the
Supplemental Fee Letter between Borrower and Fleet. For purposes of this
Agreement, the "Banks' L/C Fee Rate" shall mean, at any time, a rate per annum
equal to the Applicable Margin for LIBOR Loans less 0.125% per annum. It is
understood and agreed that the last installment of the fees provided for in this
paragraph (f) with respect to any particular Letter of Credit shall be due and
payable on the first day of the calendar quarter following the return, undrawn,
or cancellation of such Letter of Credit and Borrower's receipt of notice from
Administrative Agent.
(g) The parties hereto acknowledge and agree that, immediately upon
notice from Administrative Agent of any drawing under a Letter of Credit, each
Bank shall, notwithstanding the existence of a Default or Event of Default or
the non-satisfaction of any conditions precedent to the making of an advance of
the Loans, advance proceeds of its Ratable Loan, in an amount equal to its Pro
Rata Share of such drawing, which advance shall be made to Administrative Agent
to reimburse Administrative Agent, for its own account, for such drawing. Each
of the Banks further acknowledges that its obligation to fund its Pro Rata Share
of drawings under Letters of Credit as aforesaid shall survive the Banks'
termination of this Agreement or enforcement of remedies hereunder or under the
other Loan Documents.
(h) Borrower agrees, upon the occurrence of an Event of Default and
at the written request of Administrative Agent, (1) to deposit with
Administrative Agent cash collateral in the amount of all the outstanding
Letters of Credit, which cash collateral shall be held by Administrative Agent
as security for Borrower's obligations in connection with the Letters of Credit
and (2) to execute and deliver to Administrative Agent such documents as
Administrative Agent reasonably requests to confirm and perfect the assignment
of such cash collateral to Administrative Agent.
28
<PAGE> 34
Section 2.17 Intentionally Omitted.
Section 2.18 Swing Loans. (a) During the term of this Agreement,
the Swing Lender agrees, on the terms and conditions set forth in this
Agreement, to make advances to Borrower pursuant to this Section from time to
time in amounts such that (i) the aggregate of such advance and amount of Swing
Loans theretofore advanced and still outstanding does not at any time exceed the
Swing Loan Commitment and (ii) the amount of such advance does not exceed the
Available Total Loan Commitment. Each advance under this Section shall be in an
aggregate principal amount of $1,000,000 or a larger multiple of $100,000
(except that any such advance may be in the aggregate available amount of Swing
Loans determined in accordance with the immediately preceding sentence). With
the foregoing limits, Borrower may borrow under this Section, repay or, to the
extent permitted by Section 2.09, prepay Swing Loans and reborrow under this
Section at any time during the term of this Agreement.
(b) The Swing Lender shall, on behalf of Borrower (which hereby
irrevocably directs the Swing Lender to act on its behalf), on notice given by
the Swing Lender no later than 1:00 p.m. (New York time) on the Banking Day
immediately following the funding of any Swing Loan, request each Bank to make,
and each Bank hereby agrees to make, an advance of its Ratable Loan, in an
amount (with respect to each Bank, its "Swing Loan Refund Amount") equal to such
Bank's Pro Rata Share of the aggregate principal amount of the Swing Loans (the
"Refunded Swing Loans") outstanding on the date of such notice, to repay the
Swing Lender. Unless any of the events described in paragraph (5) of Section
9.01 with respect to Borrower shall have occurred and be continuing (in which
case the procedures of paragraph (c) of this Section shall apply), each Bank
shall make such advance of its Ratable Loan available to Administrative Agent at
Administrative Agent's Office in immediately available funds, not later than
1:00 p.m. (New York time), on the third Banking Day immediately following the
date of such notice. Administrative Agent shall pay the proceeds of such advance
of Ratable Loans to the Swing Lender, which shall immediately apply such
proceeds to repay Refunded Swing Loans. Effective on the day such advances of
Ratable Loans are made, the portion of the Swing Loans so paid shall no longer
be outstanding as Swing Loans, shall no longer be due as Swing Loans under the
Swing Loan Note held by the Swing Lender, and shall be due as Ratable Loans
under the respective Ratable Loan Notes issued to the Banks (including the Swing
Lender). Borrower authorizes the Swing Lender to charge Borrower's accounts with
Administrative Agent (up to the amount available in each such accounts) in order
to immediately pay the amount of such Refunded Swing Loans to the extent amounts
received from the Banks are not sufficient to repay in full such Refunded Swing
Loans.
(c) If, prior to the time advances of Ratable Loans would have
otherwise been made pursuant to paragraph (b) of this Section, one of the events
described in paragraph (5) of Section 9.01 with respect to the Borrower shall
have occurred and be continuing, each Bank shall, on the date such advances were
to have been made pursuant to the notice referred to in paragraph (b) of this
Section (the "Refunding Date"), purchase an undivided participating interest in
the Swing Loans in an amount equal to such Bank's Swing Loan Refund Amount. On
the Refunding Date, each Bank shall transfer to the Swing Lender, in immediately
available funds, such Bank's Swing Loan Refund Amount, and upon receipt thereof,
the Swing Lender shall deliver to such Bank a Swing Loan participation
certificate dated the date of the Swing Lender's receipt of such funds and in
the Swing Loan Refund Amount of such Bank.
29
<PAGE> 35
(d) Whenever, at any time after the Swing Lender has received from
any Bank such Bank's Swing Loan Refund Amount pursuant to paragraph (c) of this
Section, the Swing Lender receive any payment on account of the Swing Loans in
which the Banks have purchased participations pursuant to said paragraph (c),
the Swing Lender will promptly distribute to each such Bank its ratable share
(determined on the basis of the Swing Loan Refund Amounts of all of the Banks)
of such payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Bank's participating interest was
outstanding and funded); provided, however, that in the event that such payment
received by the Swing Lender is required to be returned, such Bank will return
to the Swing Lender any portion thereof previously distributed to it by the
Swing Lender.
(e) Each Bank's obligation to transfer the amount of a Loan to the
Swing Lender as provided in paragraph (b) of this Section or to purchase a
participating interest pursuant to paragraph (c) of this Section shall be
absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any set-off, counterclaim, recoupment,
defense or other right which such Bank, Borrower or any other Person may have
against the Swing Lender or any other Person, (ii) the occurrence or continuance
of a Default or an Event of Default, the termination or reduction of the Loan
Commitments or the non-satisfaction of any condition precedent to the making of
any advance of the Loans, (iii) any adverse change in the condition (financial
or otherwise) of Borrower or any other Person, (iv) any breach of this Agreement
by Borrower, any other Bank or any other Person or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
(f) Notwithstanding anything above in this Section or elsewhere in
this Agreement to the contrary, in the event that the Swing Lender funds a Swing
Loan hereunder when it has actual knowledge that a monetary Default, or material
Event of Default (which, for the avoidance of doubt shall include any violation
of any provision of Article VII or Article VIII) has occurred and is continuing,
the Banks shall have the option to make Ratable Loans to fund their ratable
shares of such Swing Loan as contemplated in paragraph (b) of this Section or to
purchase participations as contemplated in paragraph (c) of this Section.
(g) For purposes of Article III, Swing Loans shall be deemed to be
LIBOR Loans.
Section 2.19 Extension Of Maturity. (a) Borrower shall have the
option (the "Extension Option") to extend the original Maturity Date for a
period of one (1) year. Subject to the conditions set forth below, Borrower may
exercise the Extension Option by delivering a written notice to Administrative
Agent not less than one hundred twenty (120) days prior to the original Maturity
Date (a "Notice to Extend"), stating that Borrower has elected to extend the
original Maturity Date for one (1) year. Borrower's delivery of the Notice to
Extend shall be irrevocable and Borrower's right to exercise the Extension
Option shall be subject to the following terms and conditions: (i) there shall
exist no Event of Default on both the date Borrower delivers the Notice to
Extend to Administrative Agent and on the original Maturity Date, (ii) Borrower
shall have paid to Administrative Agent for the account of each Bank an
extension fee equal to 0.10% of such Bank's Loan Commitment simultaneously with
delivery of the Notice to Extend and (iii) Borrower shall be in compliance with
the covenants contained in Articles VII and VIII.
30
<PAGE> 36
(b) If Borrower shall have effectively exercised the Extension Option
pursuant to paragraph (a) above, Borrower may request a one-year extension of
the Maturity Date, as so extended, by delivering a written request therefor to
Administrative Agent not more than six (6) months or less than one hundred
twenty (120) days prior to such Maturity Date (a "Request to Extend").
Administrative Agent shall notify the Banks of its receipt of the Request to
Extend and each Bank shall give notice in writing to Administrative Agent not
less than ninety (90) days prior to the Maturity Date to be extended of such
Bank's acceptance or rejection of such Request to Extend. If all the Banks shall
have notified Administrative Agent on or prior to the date which is ninety (90)
days prior to the Maturity Date to be extended that they accept such request,
the Maturity Date shall be extended for one (1) year. If any Bank shall not have
notified Administrative Agent on or prior to the date which is ninety (90) days
prior to the Maturity Date to be extended that it accepts such Request to
Extend, the Maturity Date shall not be extended. Administrative Agent shall
notify Borrower and the Banks whether the Request to Extend has been accepted by
all of the Banks. If the Request to Extend is accepted by all of the Banks, the
Maturity Date shall be extended for one (1) year. The effectiveness of the
acceptance of the Request to Extend shall be subject to the following terms and
conditions: (i) there shall exist no Event of Default on both the date Borrower
delivers the Request to Extend to Administrative Agent and on the Maturity Date
to be extended, (ii) Borrower shall pay to Administrative Agent for the account
of each Bank an extension fee equal to 0.10% of such Bank's Loan Commitment
within five (5) Banking Days after receipt of notice from Administrative Agent
that the Request to Extend has been accepted by all of the Banks and (iii)
Borrower shall be in compliance with the covenants contained in Articles VII and
VIII.
ARTICLE III
YIELD PROTECTION; ILLEGALITY, ETC.
Section 3.01 Additional Costs. Borrower shall pay directly to each
Bank from time to time on demand such amounts as such Bank may determine to be
necessary to compensate it for any increased costs which such Bank determines
are attributable to its making or maintaining a LIBOR Loan or a LIBOR Bid Rate
Loan, or its obligation to make or maintain a LIBOR Loan or a LIBOR Bid Rate
Loan, or its obligation to Convert a Base Rate Loan to a LIBOR Loan hereunder,
or any reduction in any amount receivable by such Bank hereunder in respect of
its LIBOR Loan or LIBOR Bid Rate Loan(s) or such obligations (such increases in
costs and reductions in amounts receivable being herein called "Additional
Costs"), in each case resulting from any Regulatory Change which:
(1) changes the basis of taxation of any amounts payable to such Bank
under this Agreement or the Notes in respect of any such LIBOR Loan or
LIBOR Bid Rate Loan (other than changes in the rate of general corporate,
franchise, branch profit, net income or other income tax imposed on such
Bank or its Applicable Lending Office by the jurisdiction in which such
Bank has its principal office or such Applicable Lending Office); or
(2) (other than to the extent the LIBOR Reserve Requirement is taken
into account in determining the LIBOR Rate at the commencement of the
applicable Interest Period) imposes or modifies any reserve, special
deposit, deposit insurance or
31
<PAGE> 37
assessment, minimum capital, capital ratio or similar requirements relating
to any extensions of credit or other assets o |
