Exhibit 10.1
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CREDIT AGREEMENT
dated as of September 16, 2008
among
DST REALTY, INC.
WESTSIDE INDUSTRIAL PARK, L.L.C.
DST REALTY OF CALIFORNIA, INC.
and
DST REALTY CONNECTICUT, INC.
as the Borrowers
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
as Lenders
BANK OF THE WEST,
as a Lender, Administrative Agent, Arranger,
and Syndication Agent
and
ENTERPRISE BANK & TRUST,
as a
Lender and Syndication Co-Agent
The
PrivateBank and Trust Company and Sumitomo Mitsui Banking
Corporation
each as Documentation Agent
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Table of Contents
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SECTION 1 DEFINITIONS; OTHER INTERPRETIVE PROVISIONS; ACCOUNTING
PRINCIPLES................1
1.1
DEFINITIONS..............................................................1
1.2 OTHER
INTERPRETIVE
PROVISIONS...........................................14
1.3 ACCOUNTING
PRINCIPLES...................................................15
SECTION 2 COMMITMENTS OF THE LENDERS; BORROWING
PROCEDURES.................................15
2.1
COMMITMENTS.............................................................15
2.2
COMMITMENTS
SEVERAL.....................................................15
2.3 INCREASE
IN
LOAN........................................................15
SECTION 3 LOAN ACCOUNTS; REPAYMENT;
NOTES..................................................16
3.1 LOAN
ACCOUNT............................................................16
3.2
NOTES...................................................................16
3.3
REPAYMENT...............................................................16
SECTION 4
INTEREST.........................................................................16
4.1 INTEREST
RATES..........................................................16
4.2 INTEREST
PAYMENT
DATES..................................................17
4.3 SETTING
AND NOTICE OF LIBO
RATES........................................17
4.4
COMPUTATION OF
INTEREST.................................................17
4.5 HEDGING
AGREEMENTS......................................................17
SECTION 5 FEES. 17
5.1 AGENTS'
AND ARRANGER'S
FEES.............................................17
SECTION 6
PREPAYMENTS......................................................................18
6.1
PREPAYMENTS.............................................................18
6.2 MANNER OF
PREPAYMENTS; APPLICATION TO ALLOCATED
AMOUNTS.................18
6.3 TERM OF
THE
LOANS.......................................................19
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF;
TAXES..................................19
7.1 MAKING OF
PAYMENTS......................................................19
7.2 DUE DATE
MODIFICATION...................................................19
7.3
SETOFF..................................................................19
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7.4 PRORATION
OF
PAYMENTS...................................................19
7.5
TAXES...................................................................19
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR
LOANS..............................21
8.1 INCREASED
COSTS.........................................................21
8.2 BASIS FOR
DETERMINING INTEREST RATE INADEQUATE OR
UNFAIR................22
8.3 CHANGES IN
LAW RENDERING LIBOR LOANS UNLAWFUL...........................23
8.4 FUNDING
LOSSES..........................................................23
8.5 DISCRETION
OF LENDERS AS TO MANNER OF FUNDING...........................23
8.6 MITIGATION
OF CIRCUMSTANCES; REPLACEMENT OF LENDERS.....................23
8.7
CONCLUSIVENESS OF STATEMENTS; SURVIVAL OF
PROVISIONS....................24
SECTION 9 REPRESENTATIONS AND
WARRANTIES...................................................24
9.1
ORGANIZATION,
ETC.......................................................24
9.2
AUTHORIZATION; NO
CONFLICT..............................................24
9.3 VALIDITY AND BINDING
NATURE.............................................25
9.4 COMPLIANCE
WITH LAWS....................................................25
9.5 FINANCIAL
CONDITION; NO MATERIAL ADVERSE
CHANGE.........................25
9.6 LITIGATION
AND CONTINGENT LIABILITIES...................................25
9.7 OWNERSHIP
OF PROPERTIES;
LIENS..........................................26
9.8
ORGANIZATIONAL CHART OF LOAN
PARTIES....................................26
9.9 ERISA
COMPLIANCE........................................................26
9.10
INVESTMENT COMPANY
ACT..................................................26
9.11
REGULATION
U............................................................26
9.12
TAXES...................................................................26
9.13
ENVIRONMENTAL
COMPLIANCE................................................27
9.14
INFORMATION.............................................................27
9.15
SOLVENCY................................................................27
9.16
INSURANCE...............................................................27
9.17
NO
DEFAULT..............................................................27
9.18
CASUALTY,
ETC...........................................................28
9.19
LABOR
MATTERS...........................................................28
9.20
COLLATERAL
DOCUMENTS....................................................28
9.21
DEBT....................................................................28
9.22
FLOOD HAZARD
AREAS......................................................28
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9.23
USE OF
PROCEEDS.........................................................28
SECTION 10
COVENANTS.......................................................................28
10.1
REPORTS, CERTIFICATES AND OTHER
INFORMATION.............................28
10.2
BOOKS, RECORDS AND
INSPECTIONS..........................................31
10.3
INSURANCE...............................................................31
10.4
COMPLIANCE WITH LAWS; PAYMENT OF
OBLIGATIONS............................32
10.5
MAINTENANCE OF EXISTENCE,
ETC...........................................32
10.6
LIMITATIONS ON
DEBT.....................................................32
10.7
LIENS...................................................................33
10.8
BUSINESS................................................................33
10.9
[INTENTIONALLY
OMITTED].................................................33
10.10
INVESTMENTS.............................................................34
10.11
MERGERS, CONSOLIDATIONS,
SALES..........................................34
10.12 USE
OF
PROCEEDS.........................................................34
10.13
INCONSISTENT
AGREEMENTS.................................................34
10.14
TRANSACTIONS WITH
AFFILIATES............................................34
10.15
EMPLOYEE BENEFIT
PLANS..................................................34
10.16
ENVIRONMENTAL
MATTERS...................................................34
10.17
[INTENTIONALLY
OMITTED].................................................35
10.18
FURTHER
ASSURANCES......................................................35
10.19
MAINTENANCE; ALTERATIONS;
INSPECTIONS...................................35
10.20
[INTENTIONALLY
OMITTED].................................................35
10.21
MINIMUM INTEREST COVERAGE
RATIO.........................................35
SECTION 11 EFFECTIVENESS; CONDITIONS OF LENDING;
ETC.......................................36
11.1
CLOSING
DATE............................................................36
SECTION 12 EVENTS OF DEFAULT AND THEIR
EFFECT..............................................38
12.1
EVENTS OF
DEFAULT.......................................................38
12.2
EFFECT OF EVENT OF
DEFAULT..............................................39
SECTION 13 THE ADMINISTRATIVE
AGENT........................................................40
13.1
APPOINTMENT AND
AUTHORITY...............................................40
13.2
RIGHTS AS A
LENDER......................................................40
13.3
EXCULPATORY
PROVISIONS..................................................40
13.4
RELIANCE BY ADMINISTRATIVE
AGENT........................................41
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13.5
DELEGATION OF
DUTIES....................................................41
13.6
SUCCESSOR ADMINISTRATIVE
AGENT..........................................42
13.7
NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER
LENDERS..................42
13.8
NO OTHER DUTIES,
ETC....................................................42
13.9
ADMINISTRATIVE AGENT MAY FILE PROOFS OF
CLAIM...........................42
13.10
COLLATERAL AND GUARANTY
MATTERS.........................................43
SECTION 14
GENERAL.........................................................................44
14.1
WAIVER;
AMENDMENTS......................................................44
14.2
NOTICES.................................................................44
14.3
PAYMENTS SET
ASIDE......................................................46
14.4
EXPENSES; INDEMNITY; DAMAGE
WAIVER......................................46
14.5
SUCCESSORS AND
ASSIGNS..................................................48
14.6
ASSIGNMENTS;
PARTICIPATIONS.............................................48
14.7
GOVERNING
LAW...........................................................51
14.8
COUNTERPARTS............................................................52
14.9
CONFIDENTIALITY.........................................................52
14.10 NO
THIRD PARTIES
BENEFITED..............................................52
14.11
FORUM SELECTION AND CONSENT TO
JURISDICTION.............................52
14.12
WAIVER OF JURY
TRIAL....................................................53
14.13
MISSOURI STATUTORY
NOTICE...............................................53
14.14
ENTIRE
AGREEMENT........................................................53
14.15 NO
ADVISORY OR FIDUCIARY
RESPONSIBILITY.................................53
14.16 USA
PATRIOT ACT
NOTICE..................................................54
14.17
PRESS
RELEASES..........................................................54
14.18
INTEREST RATE
LIMITATION................................................54
14.19
RELEASE OF
COLLATERAL...................................................55
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SCHEDULES
SCHEDULE 1.1
Lenders, Commitments and Percentages
SCHEDULE 3.3
Amortization
SCHEDULE 9.5
Financial Statements
SCHEDULE 9.8
Organizational Chart of Loan Parties
SCHEDULE 10.7 (Part 1)
Liens and Encumbrances
SCHEDULE 10.7 (Part 2)
KCP&L Easement
SCHEDULE 10.10
Investments
SCHEDULE 14.2
Addresses for Notices
SCHEDULE 14.6
Processing and Recordation Fees
SCHEDULE 14.19
Drawings Regarding Release of Collateral
EXHIBITS
EXHIBIT A1
Legal Description of Property A1
EXHIBIT A2
Legal Description of Property A2
EXHIBIT B
Legal Description of Property B
EXHIBIT C
Legal Description of Property C
EXHIBIT D
Legal Description of Property D
EXHIBIT E
Form of Assignment and Assumption
EXHIBIT F
Form of Guaranty
EXHIBIT G
Form of Note
EXHIBIT H
Form of Compliance Certificate
EXHIBIT I
Credit Agreement Joinder
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CREDIT AGREEMENT
This
CREDIT AGREEMENT dated as of September 16, 2008 (this "Agreement") is
entered into among DST REALTY, INC., a Missouri corporation ("Borrower A"),
WESTSIDE
INDUSTRIAL PARK,
L.L.C.,
a Missouri limited liability company
("Borrower B"),
DST REALTY OF CALIFORNIA, INC., a California corporation
("Borrower C") and DST
REALTY CONNECTICUT,
INC., a Connecticut
corporation (
"Borrower D" and
collectively with
Borrower A,
Borrower B and
Borrower C the
"Borrowers" and individually a "Borrower"), the various financial institutions
from time to time
party to this
Agreement (together with their respective
successors and
assigns, collectively
the "Lenders"), Bank of the West, as a
Lender, Arranger,
and Syndication
Agent as provided
herein ("Administrative
Agent"), and
Enterprise Bank & Trust, as a Lender and syndication
co-agent as
provided herein ("Syndication Co-Agent").
RECITALS
A.
Borrower A is the owner in fee simple of land located at 210 W. 10th
Street, Kansas City,
MO 64105 ("Property
A1") and 710 Central
Street, Kansas
City, MO 64105 ("Property A2"), which land is legally
described in Exhibits
A1
and A2, respectively, attached hereto.
B.
Borrower B is the owner in fee simple of land located at 2600
Southwest
Blvd., Kansas
City, MO 64105, which land is legally described in Exhibit B
attached hereto ("Property B").
C.
Borrower C is the
owner in fee simple of land located at 5220 Robert J.
Mathews, El Dorado Hills, CA 95762, which land is legally described
in Exhibit C
attached hereto ("Property C").
D.
Borrower D is the
owner in fee simple of land located at 125 Ellington
Road, South
Windsor, CT 06074, which land is legally described in Exhibit D
attached hereto ("Property D").
E.
The Borrowers
have applied to the Lenders for loans
in the aggregate
principal amount of up to $120,000,000, and the Lenders are willing
to make such
loans on the terms and conditions hereinafter set forth.
NOW,
THEREFORE, in
consideration of the mutual agreements contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1 DEFINITIONS; OTHER INTERPRETIVE PROVISIONS;
ACCOUNTING PRINCIPLES.
1.1
Definitions.
When used herein the following terms shall have the
following meanings:
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ADMINISTRATIVE
AGENT means
Bank of the West in its capacity as
administrative agent for the Lenders hereunder and any successor
thereto in such
capacity.
ADMINISTRATIVE
QUESTIONNAIRE means an
Administrative
Questionnaire in a
form supplied by the Administrative Agent.
AFFECTED LENDER means any Lender that (a) is a Non-Consenting
Lender and/or
(b) has given notice to any Borrower (which has not been rescinded) of (i) any
obligation by any
Borrower to pay any amount pursuant to Section 7.5 or 8.1
or
(ii) the occurrence of any circumstance of the nature
described in Section
8.2
or 8.3.
AFFILIATE of
any Person means any other Person which, directly or
indirectly, controls,
is controlled by or is under common control with such
Person.
AGENT PARTIES - see Section 14.2(e).
AGENTS means
the Administrative Agent and the Syndication Co-Agent
collectively.
ADMINISTRATIVE
AGENT'S PAYMENT
OFFICE
means
the address of the
Administrative Agent
set forth on Schedule
14.2 or such other
address as the
Administrative Agent
may from time to time specify in accordance with Section
14.2.
AGREEMENT - see the Preamble.
ALLOCATED AMOUNT - see Section 6.1(b).
APPLICABLE CASUALTY PROCEEDS means, the aggregate insurance or
condemnation
proceeds received by
any Borrower from any Casualty Event, net of taxes paid or
payable as a result
thereof (after taking into account any available tax credit
or deduction and any tax sharing arrangement); provided that (a) so long as
no
Event of Default
or Unmatured Event of Default exists at the time of such
Casualty Event, any such proceeds shall not be Applicable
Casualty Proceeds to
the extent that (i) the applicable Borrower certifies to the Administrative
Agent in writing at
the time of receipt
thereof that the Borrower intends,
subject to subsequent business analysis by the Borrower, to use
such proceeds to
replace the assets subject to such Casualty Event ("the Subject
Assets"), (ii)
not later than 180 days after the receipt of such proceeds by the
Borrower, the
Borrower delivers
to the Administrative Agent a copy of one or more
binding
contracts to replace
the Subject
Assets and (iii) the
Subject Assets are so
replaced within 18 months after the delivery of such binding
contracts (it being
understood that any such proceeds shall immediately become Applicable Casualty
Proceeds (x) if the
Borrower determines that it will not replace the
Subject
Assets, (y) if and to the extent that the Borrower determines that
the amount of
such proceeds exceeds
the cost of replacing
the Subject Assets and
(z) to the
extent the
Borrower does not meet the requirements of clause (ii) or (iii)
above); and (b) if the aggregate amount of such proceeds arising
out of a single
Casualty Event or related Casualty Events exceeds $1,000,000, any portion of
such proceeds that does not constitute Applicable Casualty Proceeds shall be
delivered to and held by the Administrative Agent pending the
replacement of the
Subject Assets (it being understood that the Administrative Agent shall from
time to time, upon presentation by the Borrower of evidence, reasonably
satisfactory to the
Administrative
Agent, that the Borrower has paid or
will
(concurrently with the
release of funds
2
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by the Administrative
Agent) pay a portion of the cost of replacing the Subject
Assets, the
Administrative Agent
will release to the Borrower (or pay directly
to the applicable contractor or supplier) funds in an amount equal
to the amount
so paid or to be paid;
provided, further,
that (A) the
Administrative
Agent
shall not release any such funds at any time that an Event of Default or
Unmatured Event of
Default exists under
Section 12.1.1 or
12.1.3 and (B) upon
request of the Required Lenders and at any time an Event of Default
exists under
Section 12.1.1 or 12.1.3, all such funds held by the Administrative
Agent shall
immediately
constitute
Applicable
Casualty Proceeds
and be applied as
contemplated by Sections 6.1 and 6.2 (whether or not then due).
APPLICABLE MARGIN means 175 basis points (1.75%).
APPLICABLE RATE means
either the LIBO Rate or the Base Rate, as elected by
Representative Borrower pursuant to Section 4.1.
APPROVED FUND
means any Fund that is
administered
or managed by (a) a
Lender, (b) an
Affiliate of a Lender or (c) an entity or an
Affiliate of an
entity that administers or manages a Lender.
ARRANGER means Bank of the West.
ASSIGNEE - see Section 14.6(a).
ASSIGNEE GROUP
means two or more
Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same
investment advisor.
ASSIGNMENT AND ASSUMPTION means an assignment and assumption
entered into
by a Lender and an
Assignee (with the
consent of any party
whose consent is
required by Section
14.6(a)), and
accepted by the
Administrative
Agent, in
substantially the
form of Exhibit E or any other form approved by the
Administrative Agent.
ATTORNEY COSTS means,
with respect to any Person, all reasonable fees and
charges of any
counsel to such Person (excluding internal counsel), all
reasonable
disbursements of such
counsel and all court costs and similar legal
expenses.
BANK
OF THE WEST - see the Preamble.
BASE
RATE means, for any
day, the rate of
interest in effect for such day
as publicly
announced from time to time by Bank of the
West as its prime rate
(whether or not such rate is actually charged by Bank of the West),
which is not
intended to be Bank of the West's lowest or most favorable rate of interest at
any one time. Any
change in the Base Rate announced by Bank of the West shall
take effect at the
opening of business on the day specified in the public
announcement of such
change; provided that Bank of the West shall not be
obligated to give notice of any change in the Base Rate.
BASE
RATE LOAN means the Loans during any period in which they bear
interest at or by reference to the Base Rate.
BORROWER OR BORROWERS - see the Preamble.
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BORROWERS' MATERIALS - see Section 10.1.8.
BUSINESS DAY means any
day other than a
Saturday, Sunday or
other day on
which commercial banks are authorized to close under the laws of,
or are in fact
closed in, the state where the Administrative Agent's Payment Office is
located
and, in the case of a Business Day which relates to a LIBOR Loan, a
day on which
dealings in Dollars are carried on in the London interbank
market.
CAPITAL LEASE means,
with respect to any Person,
any lease of (or
other
agreement conveying
the right to use) any
real or personal
property by such
Person which,
in conformity with GAAP, is or should be accounted for as a
capital lease on the balance sheet of such Person.
CASH
EQUIVALENT INVESTMENT
means as at any date, (a) securities issued or
directly and fully
guaranteed or insured
by the United States or any agency or
instrumentality
thereof (provided that
the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than
twelve
months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank
of
recognized standing
having capital and surplus in excess of
$500,000,000
or
(iii) any bank whose short-term commercial paper rating from
S&P is at least A-1
or the equivalent
thereof or from
Moody's is at least P-1 or the
equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c)
commercial paper and
variable or fixed
rate notes issued by any Approved Bank (or by the parent
company thereof) or
any variable rate
notes issued by, or
guaranteed by, any
domestic corporation
rated A-1 (or the equivalent thereof) or better by S&P
or
P-1 (or the equivalent
thereof) or better by
Moody's and maturing
within six
months of the date of acquisition, (d) repurchase agreements
entered into by any
Person with a bank or trust company (including any of the Lenders)
or recognized
securities dealer
having capital and surplus in excess of
$500,000,000
for
direct obligations
issued by or fully
guaranteed by the United States in which
such Person shall have a perfected first priority security interest (subject to
no other Liens) and having, on the date of purchase thereof, a fair
market value
of at least 100% of the amount of the repurchase obligations and (e)
Investments,
classified in
accordance with GAAP
as current assets,
in money
market investment
programs registered under the Investment Company Act of 1940,
as amended, which are
administered by reputable financial institutions having
capital of at least
$500,000,000 and the
portfolios
of which are
limited to
Investments of the character described in the foregoing
subdivisions (a) through
(d).
CASUALTY EVENT
means the settlement of or payment in respect of any
property or casualty
insurance claim (excluding any business interruption
insurance claim)
or any condemnation proceeding relating to any of the
Properties.
CHANGE IN CONTROL means an event or series of events by which: any
"person"
or "group" (as such terms are used in Sections 13(d) and 14(d) of
the Securities
Exchange Act of
1934, but excluding any employee benefit plan of Parent
Guarantor or its
Subsidiaries or any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such
plan) becomes the
"beneficial owner" (as
defined in Rules 13d-3
and 13d-5 under the
Securities
Exchange Act of 1934,
except that a person or group shall be deemed to have
"beneficial ownership" of all securities that such person or group
has the right
to acquire (such right, an "option right"), whether such right is
exercisable
immediately or only after the passage of time),
4
<PAGE>
directly or indirectly, of 35% or more of the equity
securities of such
Person
entitled to vote for members of the board of directors or
equivalent
governing
body of such Person on a fully-diluted basis (and taking into account all
such
securities that such
person or group has
the right to acquire
pursuant to any
option right); or during any period of 12 consecutive months, a majority of the
members of the board of directors of Parent Guarantor cease to be composed of
individuals (i) who
were members of that board or equivalent governing body on
the first day of such period, (ii) whose election or nomination to
that board or
equivalent governing
body was approved by individuals referred to in clause (i)
above constituting
at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose election
or
nomination to that
board or other
equivalent governing
body was approved by
individuals referred
to in clauses (i) and (ii) above constituting at the time
of such election or
nomination at least a
majority of that board or equivalent
governing body (excluding, in the case of both clause (ii) and
clause (iii), any
individual whose initial nomination for, or assumption of office
as, a member of
that board or
equivalent
governing body occurs as a result of an actual or
threatened
solicitation of
proxies or consents
for the election or removal of
one or more directors by any person or group other than a
solicitation
for the
election of one or more directors by or on behalf of the board of
directors); or
the Parent Guarantor
ceases to own directly or indirectly the interests of each
Borrower as set forth on Schedule 9.8.
CLOSING DATE - see Section 11.1.
CODE
means the Internal
Revenue Code of 1986,
as amended, including
the
regulations and rulings thereunder.
COLLATERAL means
all assets of the Borrowers in which a Lien has been
granted to the
Administrative Agent
for the benefit of the Lenders pursuant to
the Collateral
Documents
to secure the payment and performance of the
Obligations.
COLLATERAL DOCUMENTS
means, collectively, the Mortgages and any other
agreement or instrument pursuant to which any Borrower,
Parent Guarantor or
any
other Person grants or purports to grant collateral to the
Administrative
Agent
for the benefit of the Lenders.
COMMITMENT means, as to any Lender, such Lender's commitment to make
Loans
under this Agreement.
CONSOLIDATED EBITDA means for any period for the Consolidated
Parties on a
consolidated basis,
the sum of (a) Consolidated Net Income, plus (b) an amount
which, in the
determination of Consolidated Net Income, has been deducted for
(i) Consolidated
Interest Expense, (ii)
income taxes, (iii)
depreciation and
amortization expense
and (iv) non-cash stock compensation expense in an
aggregate amount not to exceed $40,000,000 in any fiscal year, all
as determined
in accordance with GAAP.
CONSOLIDATED
INTEREST
COVERAGE RATIO means, as of any date of
determination, the
ratio of (a) Consolidated EBITDA for the period of the
four
prior fiscal quarters ending on such date to (b) Consolidated Interest Expense
for such period.
CONSOLIDATED INTEREST
EXPENSE means for any period for the
Consolidated
Parties on a consolidated basis, all interest expense
(whether paid or accrued)
and capitalized
interest,
5
<PAGE>
including without
limitation (a) the amortization of debt discount and premium,
(b) the interest
component under
Capital Leases and (c)
the implied
interest
component, discount or
other similar
fees or charges in
connection
with any
asset securitization
program, in each case as determined
in accordance
with
GAAP. Lenders will not
unreasonably deny a request from Borrowers to amend this
definition to be
consistent with an
amendment (if any) in that certain Credit
Agreement, dated as of
June 28, 2005, among Parent Guarantor, certain lenders,
and Bank of America, N.A. as agent for such lenders.
CONSOLIDTED NET INCOME
means for any period for the Consolidated Parties
on a consolidated
basis, net income (or loss) (excluding extraordinary items)
after interest expense, income taxes and depreciation and
amortization, all
as
determined in accordance with GAAP.
CONSOLIDATED PARTIES
means a collective
reference to the Parent Guarantor
and its Subsidiaries.
DEBT
of any Person means, without duplication, (a) all indebtedness of
such
Person for borrowed money, whether or not evidenced by bonds,
debentures, notes
or similar
instruments, (b) all
obligations
of such Person as lessee under
Capital Leases which have been or should be recorded as liabilities
on a balance
sheet of such Person,
(c) all obligations of such Person to pay the
deferred
purchase price of
property or services
(other than prepaid
interest and trade
accounts payable in
the ordinary
course of business), (d) all indebtedness
secured by a Lien
on the property of such Person, whether or not such
indebtedness shall have been assumed by such Person (it being
understood that if
such Person has not assumed or otherwise become personally liable for any such
indebtedness, the
amount of the Debt of
such Person in
connection
therewith
shall be limited to the lesser of the face amount of such indebtedness or the
fair market value of all property of such Person securing such indebtedness),
(e) all obligations, contingent or otherwise, with respect to the
face amount of
all letters of credit (whether or not drawn) and banker's
acceptances issued for
the account of such
Person, (f) the net
liabilities
of such Person under
all
Hedging Agreements to
which it is a party and (g) all Guaranty Obligations of
such Person.
DEFAULT RATE means an interest rate equal to (a) the Base Rate
plus (b) 2%
per annum.
DOLLARS and $ mean lawful money of the United States of
America.
ENVIRONMENTAL
INDEMNITY means the Environmental Indemnity Agreement dated
as of the date hereof,
executed and delivered by Parent Guarantor and the
Borrowers in favor of the Administrative Agent.
ENVIRONMENTAL LAWS
means any and all applicable Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees
or other legal
requirement
regulating, relating
to or imposing
liability or
standards of conduct concerning protection of human health or the
environment or
the use, storage, recycling, handling, disposal, discharge,
transport, treatment
or generation of
Hazardous Materials,
as now or may at any
time be in effect,
including CERCLA,
RCRA, the Clean Air Act, 42 USC ss.7401
et seq., the Toxic
Substances Control
Act 15 USC
ss.2601 et seq.
and any rules and
regulations
promulgated thereunder.
6
<PAGE>
ERISA means the
Employee Retirement
Income Security Act of 1974 and any
successor statute of similar import, together with the regulations
thereunder,
in each case as in effect from time to time. References to sections of ERISA
also refer to any successor sections.
ERISA AFFILIATE means any trade or business (whether or not incorporated)
under common control
with any Borrower
within the meaning of Section 414(b) or
(c) of the Code
(and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
ERISA EVENT means (a) a Reportable Event with respect to a Pension Plan,
(b) a withdrawal
by any Borrower or any ERISA Affiliate from a Pension Plan
subject to
Section 4063 of ERISA during a plan year in which it was a
substantial employer
(as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations
that is treated as
such a withdrawal
under Section
4062(e) of
ERISA, (c) a
complete or partial withdrawal by any Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is
in reorganization,
(d) the filing of a notice of intent to terminate, the
treatment of a Plan
amendment as a termination under Sections 4041 or 4041A
of
ERISA, or the
commencement
of proceedings by the PBGC to
terminate a Pension
Plan or Multiemployer
Plan, (e) an event or condition which might reasonably be
expected to constitute
grounds under Section 4042 of ERISA for the termination
of, or the
appointment
of a trustee to administer, any Pension Plan or
Multiemployer Plan or
(f) the imposition
of any liability under Title IV of
ERISA, other than PBGC
premiums due but not
delinquent
under Section 4007
of
ERISA, upon any Borrower or any ERISA Affiliate.
EVENT OF DEFAULT means any of the events described in Section
12.1.
EXCLUDED TAXES means, with respect to the Administrative Agent, any
Lender,
or any other
recipient of any payment to be made by or on account of any
obligation of the
Borrower hereunder,
(a) taxes imposed on
or measured by its
overall net income (however denominated and regardless of the
jurisdiction), and
franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction
(or any political subdivision thereof) under the laws of which such
recipient is
organized or in which
its principal
office is located
or, in the case of
any
Lender, in which its
applicable Lending
Office is located or any similar taxes
imposed on it in any
jurisdiction, (b) any
branch profits taxes and (c) except
as provided in the following sentence, in the case of a Foreign
Lender (other
than an assignee
pursuant to a request by the Borrowers under Section 8.6), any
withholding tax that is imposed on amounts payable to such Foreign
Lender at the
time such Foreign
Lender becomes a party
hereto (or
designates a new
lending
office) or is attributable to such Foreign Lender's failure or inability
(other
than as a result of a change in applicable tax law after the Closing
Date) to
comply with Section 7.5, except to the extent that such
Foreign Lender (or
its
assignor, if any) was
entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrowers
with
respect to such withholding tax pursuant to Section 7.5(a).
FEE
LETTER means the letter agreement, dated September 16, 2008 among
the
Borrowers and the Administrative Agent.
FISCAL QUARTER means a fiscal quarter of a Fiscal Year.
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FISCAL YEAR
means the fiscal year of the Parent Guarantor and its
Subsidiaries, which
shall be a 52-week or 53-week period, as applicable, ending
on or about December 31 of each year. References to a Fiscal Year with a
number
corresponding to any
calendar year (e.g., "Fiscal Year 2007") refer to the
Fiscal Year ending on or about December 31 of such calendar
year.
FOREIGN LENDER
means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for
tax purposes.
For purposes of this definition, the United States, each state thereof and the
District of Columbia shall be deemed to constitute a single
jurisdiction.
FRB
means the Board of
Governors of the
Federal Reserve System and any
successor thereto.
FUND
means any Person
(other than a natural
person) that is (or
will be)
engaged in making,
purchasing, holding,
or otherwise
investing in
commercial
loans and similar extensions of credit in the ordinary course of
business.
GAAP
means generally accepted accounting principles set forth from time
to
time in the opinions and pronouncements of the Accounting Principles Board of
the American Institute
of Certified
Public Accountants and statements and
pronouncements of the
Financial Accounting
Standards Board (or agencies with
similar functions of comparable stature and authority within the
U.S. accounting
profession), which
are applicable to the circumstances as of the date of
determination.
GOVERNMENTAL AUTHORITY
means any nation or government, any state or other
political subdivision
thereof, any central bank (or similar monetary or
regulatory authority)
thereof, any entity
exercising executive,
legislative,
judicial, regulatory or administrative functions of or pertaining
to government,
and any corporation
or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
GUARANTY means
the Guaranty Agreements dated as of the date hereof,
executed and delivered by Parent Guarantor in favor of the
Administrative
Agent
and the Lenders, substantially in the form of Exhibit F.
GUARANTY OBLIGATION means, as to any Person, any obligation,
contingent or
otherwise, of
such Person guarantying or having the economic effect of
guarantying any Debt
or other obligation
payable or performable by another
Person (the "primary
obligor") in any manner, whether directly or indirectly,
and including any obligation of such Person, direct or indirect,
(i) to purchase
or pay (or advance or supply funds for the purchase or payment
of) such Debt or
other obligation, (ii) to purchase or lease property, securities or
services for
the purpose of assuring the obligee in respect of such Debt or
other obligation
of the payment
or performance of such Debt or other obligation, (iii) to
maintain working
capital, equity capital or any other financial statement
condition or
liquidity of the primary obligor so as to enable
the primary
obligor to pay such
Debt or other
obligation,
or (iv) entered into for the
purpose of assuring in any other manner the obligees in respect of
such Debt or
other obligation
of the payment or performance thereof or to protect such
obligees against loss
in respect thereof (in
whole or in
8
<PAGE>
part); provided
that the term "Guaranty Obligation" shall not include
endorsements of
instruments for deposit or collection in the ordinary course of
business. The amount
of any Guaranty Obligation shall be deemed to be an amount
equal to the stated or determinable amount of the related primary
obligation, or
portion thereof, in respect of which such Guaranty Obligation is
made or, if not
stated or determinable, the maximum reasonably anticipated
liability in respect
thereof as determined by the guarantying Person in good faith.
GUARANTY OF LEASE means the Guaranty of Lease agreements dated as
of August
1, 2008, executed and
delivered by Parent
Guarantor in favor of certain of the
Borrowers.
HAZARDOUS MATERIAL
means any hazardous,
toxic or dangerous
substance or
material defined as such in (or for purposes of) the Comprehensive
Environmental
Response,
Compensation and
Liability Act, any so-called "Superfund" or
"Superlien" law or any other Federal, state or local statute,
law, ordinance,
code, regulation
or order, or any other requirement of any Governmental
Authority regulating,
relating to, or
imposing liability
for, or standards of
conduct concerning,
any hazardous, toxic or dangerous waste, substance or
material as now or any time hereafter in effect and applicable to any of the
Properties (provided that no such state or local statute, law,
ordinance, code,
regulation, order or
other requirement shall be deemed to have extraterritorial
application).
HEDGING AGREEMENT
means any interest
rate, currency or commodity swap
agreement, interest
rate cap agreement, interest rate collar agreement, foreign
exchange agreement,
forward rate agreement or other agreement designed to
protect a Person against fluctuations in interest rates, currency
exchange rates
or commodity prices.
HEDGING OBLIGATIONS
means, with respect to
any Person, all liabilities of
such Person under Hedging Agreements.
IMPROVEMENTS - see definition of Mortgaged Estate.
INDEMNIFIED TAXES means Taxes other than Excluded Taxes.
INDEMNITEE - see Section 14.4(b).
INFORMATION means all
information received
from the Borrower
relating to
the Borrower or its business, other than any such information
that is available
to the Administrative
Agent or any Lender on
a nonconfidential
basis prior to
disclosure by the
Borrower.
Notwithstanding
anything herein to the
contrary,
"Information" shall
not include (a) any
information with
respect to the
U.S.
federal and state income tax treatment of the transactions
contemplated
hereby
and any facts that may be relevant to understanding such tax treatment, which
facts shall not
include for this
purpose the names of the parties or any other
Person named herein,
or information
that would permit
identification
of the
parties or such other Persons, or any pricing terms or other
nonpublic business
or financial
information that is
unrelated to such tax treatment or facts that
are provided to any of the Persons referred to above.
INVESTMENT means,
with respect to any
Borrower, (a) any loan or advance
made by such Borrower
to any other
Person (excluding (i) advances to, and
deposits with,
contractors and
suppliers and (ii) trade accounts payable, in
each case in the ordinary course of business
9
<PAGE>
consistent with the
past practice of the
Borrowers)
and (b) any ownership
or
similar interest held
by such Borrower in
any other Person. The
amount of any
Investment shall be
the original principal
or capital amount
thereof less all
returns of principal or equity thereon (and without adjustment by reason of the
financial condition of
such other Person) and shall, if made by the transfer or
exchange of property other than cash, be deemed to have been made
in an original
principal or capital amount equal to the fair market value of such
property.
IRS
means the United States Internal Revenue Service.
LEASES - see definition of Mortgaged Estate.
LENDER - see the Preamble.
LIBOR LOAN means the Loans during any period in which they bear
interest at
a rate determined by reference to the LIBO Rate.
LIBO
RATE means, as of any day, a floating interest rate per annum
(rounded
upwards, if
necessary,
to the next 1/100 of 1%) equal to (a) the British
Banker's Association
London Interbank Offered Rate for deposits in Dollars with
a one month maturity
as reported in the Bloomberg financial news service
published on such day, plus (b) the Applicable Margin.
LIEN
means, when used with respect to any Borrower, any interest granted
by
such Borrower in any of the Properties which secures payment or performance by
any Borrower of any
obligation of any
Borrower and shall include any mortgage,
lien, encumbrance,
charge, assignment by way of security or other security
interest of any kind,
whether arising by contract, as a matter of law, by
judicial process or otherwise.
LOANS means the loans
made by the Lenders to
the Borrowers
pursuant to
Section 2.1.
LOAN
DOCUMENTS means this Agreement, the Guaranty, the Collateral
Documents, the Notes,
the Fee Letter,
the Leases
identified on Schedule
10.7
(Part 1), the Guaranty
of Lease, any Hedging
Agreements
entered into by any
Borrower with the Administrative Agent or any Lender, Environmental Indemnity,
the Subordination,
Nondisturbance
and Attornment Agreement, and all other
documents, instruments
and agreements
delivered by a Loan
Party in connection
with the foregoing.
LOAN
PARTY means each Borrower and Parent Guarantor individually and "Loan
Parties" means each Borrower and Parent Guarantor collectively.
MARGIN STOCK means "margin stock" as defined in Regulation U of the
FRB.
MATERIAL ADVERSE
EFFECT means (a) a material impairment of the ability of
any Loan Party to perform any of its obligations under any Loan Document to
which it is or
will be a party
or (b) a material adverse effect upon the
legality, validity,
binding effect or
enforceability against any Loan Party of
any Loan Document or (c) a material adverse effect on the value or
condition of
any Property.
10
<PAGE>
MATURITY DATE means
September 16, 2013, or
such earlier date on which the
Loans become due and payable in full pursuant to Sections 6 or
12.
MOODY'S means Moody's Investors Service, Inc. and any successor
thereto.
MORTGAGE means a
mortgage or deed of trust executed by each Borrower in
form and substance reasonably acceptable to the Administrative
Agent.
MORTGAGED ESTATE
means (a) each Property and all and singular the
tenements,
hereditaments and
appurtenances thereto,
together with all
right,
title and interest of each Borrower in all easements, rights-of-way, gores or
strips of land, surface waters, ground waters, watercourses, mineral interests
and subsurface
rights, alleys, streets and sidewalks, whether now owned or
hereafter acquired,
either in law or in
equity, adjacent or
appurtenant to or
adjoining such
real property (the "Land"); (b) any and all buildings and
improvements now or
hereafter erected or located on the Land,
including all
fixtures, attachments,
appliances,
equipment,
machinery and other articles
attached to such buildings and improvements (the "Improvements");
(c) all right,
title and interest of each Borrower in and to all tangible personal
property now
owned or hereafter
acquired by such
Borrower and now or at any time hereafter
exclusively located on
the Land or within the Improvements and used exclusively
in connection
therewith, including
all building materials
stored on the Land,
all machinery, motors, elevators, fittings, radiators, awnings,
shades, screens,
all plumbing, heating, lighting, ventilating, refrigerating, incinerating, air
conditioning and sprinkler equipment, all furniture, furnishings,
equipment and
other personal
property owned by each Borrower and used exclusively in
connection with the
operation of the
Mortgaged Estate, and all renewals and
replacements thereof
(excluding
any such property owned by a tenant of the
Mortgaged Estate) (the "Personal Property"), all of which property
shall, so far
as permitted
by law, be deemed to
form a part and parcel of the real property
and for the purpose of
this Mortgage
to be real
estate and covered by this
Mortgage; (d)
all of each
Borrower's
interest in all existing and future
accounts, contract
rights, general intangibles, files, books of account,
agreements, permits,
licenses and certificates necessary or desirable in
connection with the acquisition, ownership, leasing, operation or
management of
the Mortgaged Estate, whether now existing or entered into or
obtained after the
date hereof, including
the Leases and Rents (as hereinafter defined); (e) all
agreements for use and
occupancy of any part of the Mortgaged Estate, now
existing or
hereafter entered into, including any and all extensions or
modifications thereto (the "Leases"), and all of the rents,
royalties,
security
deposits, income,
receipts, revenues and other sums now due or which may
hereafter become due
to each Borrower
under any Lease or
arising from the use
and enjoyment of any part of the Mortgaged Estate, and all rights and remedies
which each Borrower
may have against any party under the Leases (the "Rents");
and (f) all the
estate, interest,
right, title or other claim or demand
with
respect to the proceeds of insurance and any and all awards made for
the taking
of any part of the Mortgaged Estate by the power of eminent
domain, or by any
proceeding or purchase in lieu thereof.
MULTIEMPLOYER PLAN means any employee benefit plan of the type
described in
Section 4001(a)(3) of
ERISA, to which any Borrower or any ERISA Affiliate makes
or is obligated to make contributions, or during the preceding
three calendar
years, has made or been obligated to make contributions.
11
<PAGE>
NON-CONSENTING LENDER
means any Lender that,
within the previous 90 days,
voted against,
or did not
vote with respect to, any proposed amendment,
modification or waiver
of, or consent
or forbearance with respect to, any
provision of this
Agreement that (a) requires the approval of 100% of the
Lenders and (b) was approved by Lenders that constitute Required
Lenders.
NOTE
- see Section 3.2.
OBLIGATIONS means all Loans, liabilities, obligations, covenants
and duties
owing by any Loan Party to any Lender or Administrative Agent under the Loan
Documents, whether now existing or hereafter arising.
OTHER TAXES means all present or future stamp or documentary taxes or any
other excise or
property taxes,
charges or similar
levies arising from any
payment made hereunder
or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to,
this Agreement or any
other Loan Document.
PARENT GUARANTOR
means DST Systems, Inc., a Delaware corporation.
PARTICIPANT - see Section 14.6(b)(i).
PBGC
means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
PENSION PLAN means any
"employee pension
benefit plan" (as such term is
defined in Section
3(2) of ERISA), other
than a Multiemployer
Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by any Borrower or
any ERISA Affiliate or to which any Borrower or any ERISA Affiliate
contributes
or has an obligation to contribute, or in the case of a multiple
employer plan
(as described in Section 4064(a) of ERISA) has made
contributions
at any time
during the immediately preceding five plan years.
PERCENTAGE means,
for any Lender,
the percentage set
forth opposite such
Lender's name on Schedule 1.1 under the heading "Percentage", as
adjusted by any
assignment pursuant to Section 14.6(a).
PERMITTED LIENS - see Section 10.7.
PERSON means any natural person, corporation, company, partnership,
limited
liability company,
trust, association,
governmental authority
or unit, or any
other entity, whether acting in an individual, fiduciary or other
capacity.
PLAN
means any "employee
benefit plan" (as such term is defined in Section
3(3) of ERISA) established by any Borrower, Parent Guarantor or,
with respect to
any such plan that is subject to Section 412 of the Code or Title IV of
ERISA,
any ERISA Affiliate.
PLATFORM - see Section 10.1.8.
PROJECTIONS - see Section 9.14(b).
12
<PAGE>
PROPERTIES means
Property A1, Property A2, Property B, Property C and
Property D collectively and a "Property" means any one of them.
PUBLIC LENDER - see Section 10.1.8.
REGISTERED PUBLIC
ACCOUNTING
FIRM has the meaning specified in the
Securities Laws and
shall be independent of the Parent Guarantor as prescribed
by the Securities Laws.
RELATED PARTIES means, with respect to any Person, such Person's
Affiliates
and the partners, directors, officers, employees, agents, trustees,
and advisors
of such Person and of such Person's Affiliates.
REPORTABLE EVENT
means any of the
events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has
been waived.
REPRESENTATIVE BORROWER means DST Realty, Inc.
REQUIRED LENDERS means, at any time, two or more Lenders having
Percentages
aggregating more than 51%.
RESPONSIBLE OFFICER with respect to any Borrower, means the chief
executive
officer, chief
operating officer, chief financial officer, executive vice
president, treasurer
or chief accounting officer of such Person or any
other
officer of such Person involved principally in its financial
administration or
its controllership function.
S&P means Standard & Poor's Ratings Services, a division of
The McGraw-Hill
Companies, Inc. and any successor thereto.
SEC
means the Securities and Exchange Commission.
SECURITIES LAWS means
the Securities Act of 1933, the Securities Exchange
Act of 1934, Sarbanes-Oxley and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or
incorporated
by the SEC or the Public Company Accounting Oversight Board, as each of the
foregoing may be amended and in effect on any applicable date
hereunder.
SOLVENT means,
with respect to any Person on any date
of determination,
that on such date (a) the fair value of the property of such Person is greater
than the total amount of liabilities, including contingent liabilities,
of such
Person, (b) the
present fair salable
value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such
Person on its debts as they become absolute and matured, (c) such Person does
not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person's
ability to pay such debts and liabilities as they mature,
(d) such Person is not engaged in business or a transaction, and is
not about to
engage in business or a transaction, for which such Person's property would
constitute an unreasonably small capital, and (e) such Person is
able to pay its
debts and liabilities,
contingent
obligations
and other commitments as they
mature in the ordinary course of business. The amount of contingent
liabilities
at any time shall be computed as the amount that,
13
<PAGE>
in the light
of all the facts and circumstances existing at such time,
represents the amount
that can reasonably be expected to become an actual
or
matured liability.
SUBORDINATION,
NONDISTURBANCE
AND ATTORNMENT
AGREEMENT
means
the
Subordination,
Nondisturbance and
Attornment Agreements
dated as of the
date
hereof, among certain
of the Borrowers, as
lessor, certain
lessees, and the
Administrative Agent.
SUBSIDIARY of a Person means a corporation, partnership, joint venture,
limited liability
company or other
business entity of
which a majority of the
shares of stock or other equity interests having ordinary voting power for
the
election of the
board of directors or other governing body (other than
securities or
interests having such
power only by reason of the happening of a
contingency) are at the time beneficially owned, or the management of which
is
otherwise
controlled,
directly or
indirectly,
through
one or more
intermediaries, or both, by such Person.
SURVEYS - see Section 11.1.13.
SYNDICATION CO-AGENT - see the Preamble.
TAXES means any
present or future
income, excise or stamp taxes and any
other taxes,
fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority.
UCC
means the Uniform Commercial Code as in effect in any applicable
jurisdiction.
UNFUNDED PENSION
LIABILITY means the excess of a Pension
Plan's benefit
liabilities under
Section 4001(a)(16) of
ERISA, over the current value of that
Pension Plan's assets,
determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for
the applicable
plan year.
UNMATURED EVENT OF
DEFAULT means any
event which if it continues uncured
will, with lapse of
time or notice or lapse of time and notice, constitute an
Event of Default.
1.2
OTHER INTERPRETIVE
PROVISIONS.
The meanings of defined terms are
equally applicable to
the singular and plural forms of the terms defined. The
term "documents"
includes any and all instruments, documents, agreements,
certificates,
indentures, notices
and other writings,
however evidenced.
The
term "including" is
not limiting and means "including without limitation." In
the computation of
periods of time from a specified date to a later specified
date, the word "from"
means "from and
including",
the words "to" and
"until"
each mean "to but excluding" and the word "through" means "to and including."
For the purposes of
calculating
interest, the principal of a Loan shall be
deemed to be outstanding on the date a Loan or portion thereof is made. Unless
otherwise expressly
provided herein,
(a) references to
agreements
(including
this Agreement) and other contractual instruments shall be deemed
to include all
subsequent amendments
and other modifications thereto, but only to the extent
such amendments and other modifications are not prohibited by the terms of
any
Loan Document
and (b) references to any statute or regulation are to be
construed as including all statutory and regulatory provisions consolidating,
amending, replacing,
supplementing or
interpreting such statute or regulation.
The captions and headings of this Agreement are for convenience of
14
<PAGE>
reference only and shall not affect the interpretation of this Agreement.
This
Agreement and other Loan Documents may use several different
limitations, tests
or measurements to regulate the same or similar matters.
All such limitations,
tests and measurements
are cumulative and shall each be performed in accordance
with their terms.
1.3
ACCOUNTING PRINCIPLES.
Unless otherwise
defined or specified
herein,
all accounting
terms
used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial
statements required to
be delivered hereunder
shall be prepared, in
accordance with GAAP as in effect
from time to time,
applied on a basis consistent (except for such changes
approved by the Borrowers' independent public accountants)
with the most recent
financial statements
of the Borrowers and the Parent Guarantor delivered
pursuant to Section 10.1.
SECTION 2 COMMITMENTS OF THE LENDERS; BORROWING PROCEDURES.
2.1
COMMITMENTS.
On and subject to the terms and conditions of this
Agreement, each of the Lenders, severally and for itself alone,
agrees to make a
term loan to the Borrowers at the Closing Date in the aggregate
amount set forth
for such Lender on
Schedule 1.1.
The Commitments of the Lenders to make the
Loans shall
expire concurrently with the making of the Loans at
the Closing
Date. Once prepaid or repaid, the Loans may not be reborrowed.
2.2
COMMITMENTS
SEVERAL. The failure of any Lender to make
a Loan on the
Closing Date shall not relieve that Lender or any other Lender of
its obligation
(if any) to make a Loan on such date, but no Lender shall be
responsible for the
failure of any other Lender to make any Loan to be made by such
other Lender.
2.3
INCREASE IN LOAN.
Notwithstanding anything herein to the contrary, the
aggregate amount of
the Loans on the Closing Date is $115,000,000; provided,
however, on or after
the Closing Date,
the Borrowers may increase the total
amount of the Loans in an aggregate principal amount of $5,000,000
(for a total
credit facility in an
aggregate amount of up
to $120,000,000)
subject to the
arrangement of an additional commitment with a financial
institution
acceptable
to the Borrowers and the Administrative Agent (such institution,
if not already
a Lender hereunder, "New Lender"); provided that (1) no Lender will
be required
to increase its Loans or Commitment, (2) except as set forth in the Fee
Letter,
the Administrative
Agent shall have no
responsibility
for arranging any
such
additional commitments and (3) there is no continuing Unmatured
Event of Default
or Event of Default. New Lender, each Borrower, Parent Guarantor and
Administrative Agent
shall execute a Credit Agreement Joinder in the form
attached hereto as Exhibit I evidencing such additional Commitment.
If the Loan
is increased
pursuant to this
Section 2.3,
immediately, and
without further
action by any Borrower or Lender, (a) Schedule 1.1 shall be deemed
to be amended
to add New Lender
(if any), to adjust the Percentages accordingly and to
increase the Allocated
Amount of each Property by an amount equal to $5,000,000
multiplied by such
Property's pro rata
amount of the total Allowed Amounts at
such time; and (b) Schedule 3.3 shall be deemed to be amended by
recomputing the
Loan amortization
based on an
interest rate of 6.5% per annum (and a 360
day
year) and an amortization period of (i) 240 months minus (ii) the
number of full
months elapsed since the Closing Date.
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SECTION 3 LOAN ACCOUNTS; REPAYMENT; NOTES.
3.1
LOAN ACCOUNT.
The Loans made by each
Lender shall be evidenced by one
or more accounts or records maintained by such Lender in the
ordinary course of
business. The accounts
or records maintained
by the Administrative
Agent and
each Lender shall be rebuttable presumptive evidence of the amount
of the Loans
made by the Lenders to the Borrowers, and the interest and payments
thereon. Any
failure so to record or any error in so recording shall not,
however, limit or
otherwise affect the
obligation of the
Borrowers hereunder to
pay all amounts
owing with respect to each Loan.
3.2
NOTES. Upon the
request of any Lender made through the Administrative
Agent (and, in the
case of LIBOR Loans,
so long as the
issuance of such
Note
shall not result in the imposition of any stamp, withholding or other tax), the
Loans made by such Lender to the Borrowers may be evidenced by a
promissory note
(individually each a
"Note" and
collectively
for all Lenders the "Notes")
substantially in the
form of Exhibit G
instead of loan accounts. Each such
Lender may record on the schedules annexed to the applicable
Note the date and
amount of each
applicable Loan made
by it and the amount
of each payment
of
principal made by the Borrowers with respect thereto, and such Lender's record
shall be conclusive absent demonstrable error; provided that the failure of a
Lender to make, or an
error in making, a
notation on any Note with respect to
any Loan shall not limit or otherwise affect the obligation of the
Borrowers to
repay each Loan together with interest thereon.
3.3
REPAYMENT.
On each date listed in
Schedule 3.3, the Borrowers shall,
jointly and severally,
repay the principal amounts of the Loans in an aggregate
amount equal to the amount set forth opposite such date. Each payment made by
each Borrower
hereunder shall be
applied first to accrued, unpaid interest on
the Loans and then to unpaid principal of the Loans. All
principal and interest
payable hereunder
shall, if not sooner paid, be due and payable on the Maturity
Date. Each
payment of
principal shall be applied pro rata to the Allocated
Amounts set forth on Schedule 1.1.
SECTION 4 INTEREST.
4.1 INTEREST
RATES. Each Borrower promises to pay interest on the
unpaid
principal amount of the Loans for the period commencing on the date
of each Loan
until such Loan is paid in full as set forth in this Section
4.1.
4.1.1 Three
Business
Days
before
the first day of each month,
Representative
Borrower shall elect
to have interest on the daily outstanding
principal amount
of the Loans or any portion thereof for each day of the
immediately following
calendar month
computed based on either (a) a fixed rate
equal to the LIBO Rate on the day of such election or (b) a floating rate
equal
to the Base
Rate in effect on each day of the month. The Borrowers and
Administrative Agent
confirm that Borrowers
have elected the Base
Rate as the
Applicable Rate
effective on the Closing Date through the last day of the
calendar month in which the Closing Date occurs; provided, however, that on or
after the Closing Date, the Borrowers may elect to fix the
Applicable
Rate for
such period at an interest rate based on the LIBO Rate which
interest rate shall
be provided by Administrative Agent. If Representative
Borrower shall
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not make such election
for any month, then
Representative
Borrower shall be
deemed to have elected to have interest for such month calculated based on the
Base Rate in effect on each day of the month.
4.1.2 Notwithstanding the foregoing, at the election of the
Administrative
Agent or the Required
Lenders after and during the continuation of an Event of
Default, the Loans shall bear interest at the Default Rate.
4.2
INTEREST PAYMENT DATES. Each Borrower shall, jointly and severally,
pay
the Administrative
Agent accrued interest
on each Loan in arrears on the first
day of each calendar
month and at the
Maturity Date.
At any time an Event
of
Default exists, accrued interest on all Loans shall be payable on
demand.
4.3
SETTING AND NOTICE OF
LIBO RATES. The
applicable
LIBO Rate shall be
determined by the
Administrative
Agent in accordance with the terms of this
Agreement, and
notice thereof shall be given by the Administrative Agent
promptly to the Borrowers and each Lender. Each determination of the
applicable
LIBO Rate by the
Administrative Agent
shall be conclusive and binding upon the
parties hereto, in the absence of demonstrable error. The Administrative
Agent
shall, upon written request of Representative Borrower or any
Lender, deliver to
Representative Borrower or such Lender a statement showing the
computations used
by the Administrative Agent in determining any applicable LIBO Rate
hereunder.
4.4
COMPUTATION OF
INTEREST. Computation
of interest on the Loans and all
fees shall be
calculated
on the basis of a year of 360 days and the
actual
number of days
elapsed, which
results in a higher
yield to the Lenders than a
method based on a year of 365 or 366 days.
4.5
HEDGING AGREEMENTS.
4.5.1 Any indebtedness
incurred pursuant to a
Hedging Agreement
entered
into by and between any Borrower and the Administrative Agent, any
other Lender,
or any of their
affiliates
in connection with the Loan shall constitute
Obligations secured by the Collateral Documents and the other Loan
Documents to
the same extent
and effect as if the terms and provisions of such Hedging
Agreement were
set forth herein, whether or not the aggregate of such
Obligations, together with the disbursements made by the
Administrative Agent or
any Lender of the
proceeds of the Loans,
shall exceed the
maximum principal
amount of the Loans hereunder.
4.5.2 Each Borrower hereby collaterally assigns to the
Administrative Agent
for the benefit of the Lenders any and all Hedging Agreements entered into by
and between any Borrower and the Administrative Agent, any other Lender, or
any
of their affiliates
purchased or to be purchased by such Borrower in connection
with the Loan, as additional security for the Loans,
and agrees to provide
the
Administrative Agent
with any additional documentation requested by the
Administrative Agent
in order to confirm
or perfect
such security interest
during the term of the Loans.
SECTION 5 FEES.
5.1
AGENTS' AND ARRANGER'S
FEES. At the Closing Date, the Borrowers agree
to pay the Administrative Agent, Syndication Co-Agent and the
Arranger such fees
in the amounts specified in the Fee Letter.
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<PAGE>
SECTION 6 PREPAYMENTS.
6.1
PREPAYMENTS.
(a)
VOLUNTARY.
Subject to the terms of this Section 6 and Section 8.4
hereof, the Borrowers may from time to time prepay the Loans in
whole or in part
without premium
or penalty; provided that the Borrowers shall give the
Administrative Agent
(which shall promptly
advise each Lender)
notice thereof
not later than 11:00 A.M., Central Standard Time, on the day
of such prepayment
(which shall be a Business Day), specifying the date and amount of
prepayment.
Except in connection with a prepayment made pursuant to Section
6.1(b), any such
partial prepayment
shall be in an amount equal to $1,000,000 or a higher
integral multiple of $500,000. Amounts prepaid may not be
reborrowed.
(b)
MANDATORY. (i)
Concurrently with the
lease, sale or other transfer of
any Property after the date hereof (except to a direct or indirect
Subsidiary of
Parent Guarantor as
permitted by Section 14.5, and except for a lease to
other
than a Subsidiary of Parent Guarantor the terms of which are
approved in advance
by Administrative Agent) the Borrowers shall, jointly and
severally, prepay
the
Loans in an amount equal to 125% of the allocated amount of such
Property as set
forth on Schedule 1.1 (the "Allocated Amount"), as such Allocated Amount has
been reduced
pursuant to payments under Sections 3.3 and 6.1 and 6.2. The
Administrative Agent
will effect the
release of a Property
from the Mortgage
upon receipt of the Allocated Amount for such Property.
(ii) Concurrently
with the receipt by any Borrower of Applicable
Casualty Proceeds, the
Borrowers shall prepay the Loans by an amount equal
to
the amount of such Applicable Casualty Proceeds.
(c)
NOTICE TO LENDERS. The
Administrative Agent
will promptly notify each
Lender of any prepayment of such Lender's Percentage of such
prepayment.
(d)
HEDGING AGREEMENTS UNAFFECTED. Any repayment or prepayment made
pursuant to this Section 6.1 shall not affect any party's
obligation to continue
to make payments
under any Hedging
Agreement entered into by and between
any
Borrower and the
Administrative
Agent, any other Lender, or any of their
affiliates in
connection
with the Loan,
subject to the terms
of such Hedging
Agreement.
6.2
MANNER OF PREPAYMENTS; APPLICATION TO ALLOCATED AMOUNTS. Any
prepayment
shall include interest
on the principal amount being repaid and, if applicable,
shall be accompanied
with a payment to the
related Lender of all
sums due and
payable to such Lender
pursuant to Section
8.4. All prepayments
of the Loans
shall be applied to the scheduled principal payments due on the
Loans hereunder
in inverse order of their due date and shall be applied to the
Allocated Amounts
first to the Allocated
Amount of the transferred Property or the property
subject to the
Casualty Event,
as applicable (or if no transfer or Casualty
Event has or will occur then to such Property as is directed by
Borrowers), and
then, pro rata, to the Allocated Amounts of the other Properties. Concurrently
with each remittance to any Lender of its share of any such payment, the
Administrative Agent
shall advise such
Lender as to the
application
of such
payment.
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<PAGE>
6.3
TERM OF THE LOANS. All principal, interest and other sums due under
the
Loan Documents shall be due and payable in full on the Maturity
Date.
SECTION 7
MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.
7.1
MAKING OF PAYMENTS. (a) All payments of principal of or interest on
the
Loans, and of all fees
shall be made by the
Borrowers to the Administrative
Agent in immediately
available funds at the Administrative Agent's Payment
Office not later than 1:00 P.M., Central Standard Time, on the date due, and
funds received
after that hour shall be deemed to have
been received
by the
Administrative Agent
on the next following
Business Day. The Administrative
Agent shall
promptly remit to each Lender its share (if any) of all such
payments received in collected funds by the Administrative Agent
for the account
of such Lender.
(b)
All payments under
Sections 8.1 and 8.4 shall be made by the Borrowers
to the Administrative Agent at the Administrative Agent's Payment
Office for the
account of the Lender entitled thereto.
7.2
DUE DATE MODIFICATION.
If any payment of
principal or interest
with
respect to any of the Loans, or of any fees, falls due on a day which is not
a
Business Day, then such due date shall be the next following Business Day, and
such extension of time shall be reflected in computing interest or fees, as the
case may be.
7.3
SETOFF. Borrowers
agree that the Administrative Agent and each Lender
have all rights of set-off and bankers' lien provided by applicable
law upon the
occurrence and during the continuance of an Event of Default,
and in addition
thereto, the Borrowers
agree that during the continuance of an Event of Default
the Administrative
Agent and each Lender may apply to the payment of such
payment or other amount any and all balances, credits, deposits, accounts or
moneys of any Borrower then or thereafter with the Administrative
Agent or such
Lender.
7.4
PRORATION OF PAYMENTS.
If any Lender shall obtain any payment or other
recovery (whether voluntary, involuntary, by application of offset
or otherwise)
on account of principal of or interest on any Loan in
excess of its
Percentage
of payments and other recoveries obtained by all Lenders on account
of principal
of and interest on Loans (or such participations) then held by
them, such Lender
shall purchase from
the other Lenders such
participation in the
Loans held by
them as shall be necessary to cause such purchasing Lender to share the excess
payment or other recovery ratably with each of them; provided that
if all or any
portion of the excess
payment or other
recovery is thereafter
recovered from
such purchasing
Lender, the purchase
shall be rescinded and the purchase price
restored to the extent of such recovery.
7.5
TAXES. (a) Payments Free of Taxes. Any and all payments by or on
account of any
obligation of the
Borrowers hereunder or under any other
Loan
Document shall be made
free and clear of and without reduction or withholding
for any Indemnified
Taxes, provided that
if the Borrowers shall be required by
applicable law to deduct any Indemnified Taxes (including any Other Taxes)
from
such payments, then
(i) the sum payable shall be increased as necessary so that
after making
all required deductions (including deductions applicable to
additional sums payable under this Section 7.5) the Administrative
Agent or the
Lender, as the case
may be, receives an
amount equal to the
sum it would have
received had no such
deductions been
made,
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(ii) the Borrowers
shall make such
deductions and (iii)
the Borrowers
shall
timely pay the full amount deducted to the relevant
Governmental
Authority in
accordance with applicable law.
(b)
PAYMENT OF OTHER TAXES BY THE BORROWERS. Without limiting the
provisions of clause
(a) above, Borrowers
shall timely pay any
Other Taxes to
the relevant Governmental Authority in accordance with applicable
law.
(c)
INDEMNIFICATION
BY THE BORROWERS. Borrowers shall indemnify the
Administrative Agent and each Lender, within 10 days after demand
therefor, for
the full amount of any Indemnified Taxes (including Indemnified
Taxes imposed or
asserted on or
attributable to
amounts payable under this Section 7.5) paid by
the Administrative
Agent or such Lender, as the case may be, and any penalties,
interest and
reasonable expenses
arising therefrom or with respect
thereto,
whether or not such
Indemnified Taxes or
Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrowers by a Lender
(with a copy to the Administrative Agent), or by the Administrative
Agent on its
own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.
(d)
EVIDENCE OF PAYMENTS. As soon as practicable after any payment of
Indemnified Taxes by
the Borrowers to a Governmental Authority, the Borrowers
shall deliver to the Administrative Agent the original or a certified
copy of a
receipt issued by such Governmental Authority evidencing such
payment, a copy of
the return reporting
such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e)
STATUS OF LENDERS. Any
Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the
jurisdiction in
which
any Borrower
is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments
hereunder or under any
other
Loan Document shall deliver to the Borrowers (with a copy to the
Administrative
Agent), at the
time or times prescribed by applicable law or reasonably
requested by the Borrowers or the Administrative Agent, such properly completed
and executed
documentation
prescribed by
applicable
law as will permit
such
payments to be made without withholding or at a reduced rate of
withholding. In
addition, any Lender, if requested by the Borrowers or the
Administrative Agent,
shall deliver
such other documentation prescribed by applicable law or
reasonably requested by the Borrowers or the Administrative Agent
as will enable
the Borrowers
or the Administrative Agent to determine whether or not such
Lender is subject to backup withholding or information reporting
requirements.
(f)
Without limiting the
generality of the
foregoing, any Foreign
Lender
shall deliver to the Borrowers and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date
on which
such Foreign Lender becomes a Lender under this Agreement (and from
time to time
thereafter upon the request of the Borrowers or the Administrative Agent, but
only if such Foreign
Lender is legally
entitled to do so),
whichever of the
following is applicable:
(i) duly completed
copies of Internal
Revenue Service Form W-8BEN
claiming eligibility
for benefits of an income tax treaty to which the
United States is a party;
20
<PAGE>
(ii) duly completed copies of Internal Revenue Service Form
W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the
effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of any Borrower within the meaning of section
881(c)(3)(B) of
the
Code, or (C) a "controlled foreign corporation" described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue
Service Form W-8BEN; or
(iv) any other
form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding
tax
duly completed together with such supplementary documentation as
may be
prescribed by
applicable
law to permit the
Borrowers to
determine the
withholding or deduction required to be made.
(g)
Without limiting the obligations of the Lenders set forth above
regarding delivery of
certain forms and
documents to establish
each Lender's
status for U.S. withholding tax purposes, each Lender agrees
promptly to deliver
to the Administrative Agent or the Borrowers, as the Administrative
Agent or the
Borrowers shall
reasonably request,
at or prior to the
Closing Date, and in a
timely fashion
thereafter,
such other
documents and forms required by any
relevant taxing
authorities
under the Laws of any other jurisdiction, duly
executed and
completed by such Lender, as are required under such Laws to
confirm such Lender's
entitlement to any available exemption from, or reduction
of, applicable
withholding taxes in
respect of all payments to be made to such
Lender outside of the
U.S. by the
Borrowers pursuant to this Agreement or
otherwise to establish such Lender's status for withholding tax
purposes in such
other jurisdiction.
Each Lender shall
promptly (i) notify
the Administrative
Agent of any change in
circumstances which
would modify or render
invalid any
such claimed exemption
or reduction,
and (ii) take such
steps as shall not be
materially disadvantageous to it, in the reasonable judgment of
such Lender, and
as may be reasonably
necessary (including
the re-designation of its applicable
lending office)
to avoid any requirement of applicable Laws of any such
jurisdiction that the Borrowers make any deduction or withholding
for taxes from
amounts payable to
such Lender.
Additionally, the
Borrowers shall promptly
deliver to the Administrative Agent or any Lender, as the
Administrative
Agent
or such Lender shall reasonably request, at or prior to the Closing
Date, and in
a timely fashion
thereafter, such
documents and forms required by any relevant
taxing authorities
under the laws of any jurisdiction, duly executed and
completed by the
Borrowers,
as are required to be
furnished by such Lender or
the Administrative
Agent under such laws
in connection with any payment by the
Administrative Agent or any Lender of Taxes, or otherwise in
connection with the
Loan Documents, with respect to such jurisdiction.
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS.
8.1
INCREASED COSTS.
(a)
If, after the date
hereof, the adoption of, or any change in, any
applicable law,
rule or regulation, or any change in the interpretation or
administration of any
applicable
law, rule or
regulation by any
Governmental
Authority, central
bank or comparable agency charged with the
21
<PAGE>
interpretation or administration thereof, or compliance by any Lender with
any
request or
directive (whether or not having the force of law) of any such
authority, central
bank or comparable agency: (i) shall impose, modify or deem
applicable any reserve
(including any reserve imposed by the FRB, but excluding
any reserve included
in the determination
of the LIBO Rate pursuant to Section
4), Tax (except for income taxes), special deposit or similar requirement
against assets of,
deposits with or for
the account of, or credit extended by
such Lender; or (ii)
shall impose on any Lender any other condition affecting
its LIBOR Loans, its Notes or its obligation to charge interest
hereunder based
on the LIBO Rate; and
the result of anything
described in clauses (i) and (ii)
above is to increase
the cost to (or to impose a cost on) such Lender of making
or maintaining
any LIBOR Loan,
or to reduce the
amount of any sum received or
receivable by such Lender under this Agreement or under its Note(s)
with respect
thereto, within three (3) Business Days after receiving written
demand from such
Lender (which demand shall be accompanied by a statement setting
forth the basis
for such demand and a calculation of the amount thereof in
reasonable detail,
a
copy of which shall be furnished to the Administrative Agent), the Borrowers
agree to pay directly to such Lender such additional amount as will compensate
such Lender for such increased cost or such reduction.
(b)
I
