TERM LOAN AGREEMENT
DATED AS OF SEPTEMBER 2,
2008
AMONG
INLAND REAL ESTATE
CORPORATION,
AS BORROWER
AND
KEYBANK NATIONAL
ASSOCIATION
AS ADMINISTRATIVE AGENT
KEYBANC CAPITAL MARKETS
AS CO-LEAD ARRANGER
AND
BANC OF AMERICA SECURITIES,
LLC
AS CO-LEAD ARRANGER
AND
BANK OF AMERICA, N.A.
AS SYNDICATION AGENT
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES
HERETO,
AS LENDERS
TERM LOAN
AGREEMENT
This Term Loan
Agreement, dated as of September 2, 2008, is among Inland Real
Estate Corporation, a corporation organized under the laws of the
State of Maryland (the “ Borrower ”), KeyBank
National Association, a national banking association, both
individually as a “ Lender ” and as “
Administrative Agent ”, Bank of America, N.A., both
individually as a “ Lender ” and as “
Syndication Agent , ” KeyBanc Capital Markets as a
“ Co-Lead Arranger ,” and Banc of America
Securities, LLC , as a “ Co-Lead Arranger ”
(the Co-Lead Arrangers will collectively be referred to as “
Lead Arrangers ” and the several banks, financial
institutions and other entities which may from time to time become
parties to this Agreement as additional “ Lenders
”.
RECITALS
A.
The Borrower is
primarily engaged in the business of purchasing, owning, operating,
leasing and managing retail properties.
B.
The Borrower is
qualified as a real estate investment trust under Section 856
of the Code.
C.
The Agent and the
Lenders desire to make available to the Borrower an unsecured term
loan in the initial amount of $140,000,000 (with possible future
term loan disbursements by existing or additional Lenders, as
provided herein, up to an aggregate amount of all such term loans
not to exceed $200,000,000), on the terms and conditions contained
herein.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements herein
contained, the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
As used in this
Agreement:
“Acquisition” means any
transaction, or any series of related transactions, consummated on
or after the date of this Agreement, by which the Borrower or any
of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or
division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by
percentage or voting power) of the outstanding partnership
interests of a partnership.
“Adjusted Annual
EBITDA” means, as of any date, an annualized amount
determined by multiplying four (4) times the Consolidated Net
Income for the most recent fiscal quarter of Borrower for which
financial results have been reported, as adjusted by (i) adding or
deducting for, as appropriate, any adjustment made under GAAP for
straight lining of rents, gains or losses from sales of assets,
extraordinary items, depreciation, amortization, interest expenses,
the Consolidated Group Pro Rata Share of interest, depreciation and
amortization in Investment Affiliates; and (ii) deducting from such
annualized amount an annual amount for capital expenditures equal
to $0.15 per square foot times the weighted daily average gross
leaseable area of Projects owned by the Consolidated Group or any
Investment Affiliate (but only deducting the applicable
Consolidated Group Pro Rata Share of such amount with respect to
such Investment Affiliate) during such fiscal quarter.
“Adjusted Annual
NOI” means, as of any date, with respect to any group of
Projects, an annualized amount determined by multiplying four (4)
times the aggregate Net Operating Income attributable to such
Projects for the most recent fiscal quarter of Borrower for which
financial results have been reported, as adjusted by an annual
amount for capital expenditures equal to $0.15 per square foot
times the gross leaseable area of such Projects; adding or
deducting for, as appropriate, any adjustment made to under GAAP
for straight lining of rents, gains, or losses from sales of
assets, extraordinary items, depreciation, amortization, or
interest expense; and (i) deducting therefrom any income
attributable to Excluded Tenants but only if and to the extent that
the aggregate amount of such income attributable to Excluded
Tenants would be greater than 5% of all other elements of aggregate
Adjusted Annual NOI without regard to such income and (ii) adding
or deducting for, as appropriate, any adjustment made to under GAAP
for straight lining of rents, gains, or losses from sales of
assets, extraordinary items, depreciation, amortization or interest
expense.
“Adjusted
Unencumbered NOI” means, as of any date, Unencumbered NOI for
the most recent fiscal quarter of the Borrower for which financial
results have been reported less an amount for capital
expenditures equal to $0.0375 per gross leasable square foot ($0.15
per annum divided by four quarters) times the weighted average
gross leasable area of Qualifying Unencumbered Properties owned by
the Borrower and the Subsidiary Guarantors during such fiscal
quarter.
“Administrative
Agent” means KeyBank National Association in its capacity as
agent for the Lenders pursuant to Article X , and not in its
individual capacity as a Lender, and any successor Administrative
Agent appointed pursuant to Article X .
“Advance”
means the Loans of one or more Types made by one or more of the
Lenders to the Borrower as described in Section 2.6
hereof.
“Affiliate”
of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such
Person. A Person shall be deemed to control another Person if
the controlling Person owns 10% or more of any class of voting
securities (or other ownership interests) of the controlled Person
or possesses, directly or indirectly, the power to direct or cause
the direction of the management or policies of the controlled
Person, whether through ownership of stock, by contract or
otherwise.
“Aggregate
Commitment” means, as of any date, the aggregate of the then
current Commitments of all the Lenders, which is currently
$140,000,000, as such amount may be increased pursuant to
Section 2.2 hereof.
“Agreement”
means this Loan Agreement, as it may be amended or modified and in
effect from time to time.
“Agreement
Execution Date” means the date this Agreement has been fully
executed and delivered by all parties hereto.
“Alternate
Base Rate” means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the
sum of Federal Funds Effective Rate for such day plus 1/2% per
annum.
“Anti-Terrorism
Laws” is defined in Section 5.28 .
“Applicable
Margin” means, 2.0% per annum for Fixed Rate Loans and 0.5%
per annum for Floating Rate Loans.
“Article”
means an article of this Agreement unless another document is
specifically referenced.
“Authorized
Officer” means any of the President and Chief Executive
Officer, Executive Vice President and Chief Operating Officer, Vice
President and Chief Financial Officer or Vice President and General
Counsel of the Borrower, acting singly.
“Bankruptcy
Code” means the Bankruptcy Code of the United States of
America, as amended from time to time.
“Borrower”
means Inland Real Estate Corporation, a corporation organized under
the laws of the State of Maryland, and its successors and
assigns.
“Borrowing
Date” means a date on which an Advance is made
hereunder.
“Borrowing
Notice” is defined in Section 2.6 .
“Business
Day” means (i) with respect to any borrowing, payment or rate
selection of LIBOR Advances, a day (other than a Saturday or
Sunday) on which banks generally are open in Cleveland, Ohio and
New York, New York for the conduct of substantially all of their
commercial lending activities and on which dealings in United
States dollars are carried on in the London interbank market and
(ii) for all other purposes, a day (other than a Saturday or
Sunday) on which banks generally are open in Cleveland, Ohio and
New York, New York for the conduct of substantially all of their
commercial lending activities.
“Capital
Stock” means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
which is not a corporation and any and all warrants or options to
purchase any of the foregoing.
“Capitalization
Rate” means .0775.
“Capitalized
Lease” of a Person means any lease of Property imposing
obligations on such Person, as lessee thereunder, which are
required in accordance with GAAP to be capitalized on a balance
sheet of such Person.
“Capitalized
Lease Obligations” of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be
shown as a liability on a balance sheet of such Person prepared in
accordance with GAAP.
“Cash
Equivalents” means, as of any date:
(i)
securities issued or
directly and fully guaranteed or insured by the United States
Government or any agency or instrumentality thereof having
maturities of not more than one year from such date;
(ii)
mutual funds organized
under the United States Investment Company Act rated AAm or AAm-G
by S&P and P-1 by Moody’s;
(iii)
certificates of deposit
or other interest-bearing obligations of a bank or trust company
which is a member in good standing of the Federal Reserve System
having a short term unsecured debt rating of not less than A-1 by
S&P and not less than P-1 by Moody’s (or in each case, if
no bank or trust company is so rated, the highest comparable rating
then given to any bank or trust company, but in such case only for
funds invested overnight or over a weekend) provided that such
investments shall mature or be redeemable upon the option of the
holders thereof on or prior to a date one month from the date of
their purchase;
(iv)
certificates of deposit
or other interest-bearing obligations of a bank or trust company
which is a member in good standing of the Federal Reserve System
having a short term unsecured debt rating of not less than A-1+ by
S&P, and not less than P-1 by Moody’s and which has a
long term unsecured debt rating of not less than A1 by
Moody’s (or in each case, if no bank or trust company is so
rated, the highest comparable rating then given to any bank or
trust company, but in such case only for funds invested overnight
or over a weekend) provided that such investments shall mature or
be redeemable upon the option of the holders thereof on or prior to
a date three months from the date of their purchase;
(v)
bonds or other
obligations having a short term unsecured debt rating of not less
than A-1+ by S&P and P-1+ by Moody’s and having a long
term debt rating of not less than A1 by Moody’s issued by or
by authority of any state of the United States, any territory or
possession of the United States, including the Commonwealth of
Puerto Rico and agencies thereof, or any political subdivision of
any of the foregoing;
(vi)
repurchase agreements
issued by an entity rated not less than A-1+ by S&P, and not
less than P-1 by Moody’s which are secured by U.S. Government
securities of the type described in clause (i) of this
definition maturing on or prior to a date one month from the date
the repurchase agreement is entered into;
(vii)
short term promissory
notes rated not less than A-1+ by S&P, and not less than
P-1 by Moody’s maturing or to be redeemable upon the option
of the holders thereof on or prior to a date one month from the
date of their purchase; and
(viii)
commercial paper (having
original maturities of not more than 365 days) rated at least A-1+
by S&P and P-1 by Moody’s and issued by a foreign or
domestic issuer who, at the time of the investment, has outstanding
long-term unsecured debt obligations rated at least A1 by
Moody’s.
“Change of
Control” means (i) any change in the ownership of the
Borrower which results in less than eighty percent (80%) of the
Borrower’s Capital Stock being held by Persons who were
either shareholders on the Agreement Execution Date, spouses,
relatives or estates of such shareholders or trustees holding for
the benefit of such shareholders or their spouses, relatives or
estates, or (ii) any change in the membership of the
Borrower’s Board of Directors which results in the board
members as of any date after the Agreement Execution Date
constituting less than 50% of the total board members at any time
during the two (2) year period following such date.
“Change in
Management” means the failure of at least two (2) of Brett A.
Brown, D. Scott Carr or Mark E. Zalatoris to continue to be active
on a daily basis in the management of the Borrower provided that if
any such individuals shall die or become disabled the Borrower
shall have sixty (60) days to retain a replacement executive of
comparable experience which is reasonably satisfactory to the
Administrative Agent.
“Code”
means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
“Commitment” means, for
each Lender, the obligation of such Lender to make Loans not
exceeding the amount set forth opposite its signature below or as
set forth in any Notice of Assignment relating to any assignment
that has become effective pursuant to Section 12.3.2 ,
as such amount may be modified from time to time pursuant to the
terms hereof.
“Consolidated
Debt Service” means, for any period, without duplication,
(a) Consolidated Interest Expense for such period plus
(b) the aggregate amount of scheduled principal payments
attributable to Consolidated Outstanding Indebtedness (excluding
optional prepayments and scheduled principal payments in respect of
any such Indebtedness which is not amortized through equal periodic
installments of principal and interest over the term of such
Indebtedness) required to be made during such period by any member
of the Consolidated Group plus (c) a percentage of all
such scheduled principal payments required to be made during such
period by any Investment Affiliate on Indebtedness taken into
account in calculating Consolidated Interest Expense, equal to the
greater of (x) the percentage of the principal amount of such
Indebtedness for which any member of the Consolidated Group is
liable and (y) the Consolidated Group Pro Rata Share of such
Investment Affiliate.
“Consolidated
Group” means the Borrower and all Subsidiaries which are
consolidated with it for financial reporting purposes under
GAAP.
“Consolidated
Group Pro Rata Share” means, with respect to any Investment
Affiliate, the percentage of the total equity ownership interests
held by the Consolidated Group in the aggregate, in such Investment
Affiliate determined by calculating the greater of (i) the
percentage of the issued and outstanding stock, partnership
interests or membership interests in such Investment Affiliate held
by the Consolidated Group in the aggregate and (ii) the
percentage of the total book value of such Investment Affiliate
that would be received by the Consolidated Group in the aggregate,
upon liquidation of such Investment Affiliate, after repayment in
full of all Indebtedness of such Investment Affiliate.
“Consolidated
Interest Expense” means, for any period without duplication,
the sum of (a) the amount of interest expense, determined in
accordance with GAAP, of the Consolidated Group for such period
attributable to Consolidated Outstanding Indebtedness during such
period plus (b) the Consolidated Group Pro Rata Share of any
interest expense, determined in accordance with GAAP, of any
Investment Affiliate, for such period, whether recourse or
non-recourse.
“Consolidated Net
Income” means, for any period, the sum of (i) consolidated
net income (or loss) of the Consolidated Group for such period
determined on a consolidated basis in accordance with GAAP plus
(ii) without duplication, the applicable Consolidated Group Pro
Rata Share of the net income (or loss) of each Investment Affiliate
for such period determined in accordance with GAAP.
“Consolidated Net
Worth” means, as of any date of determination, an amount
equal to (a) Total Asset Value minus
(b) Consolidated Outstanding Indebtedness as of such
date.
“Consolidated
Outstanding Indebtedness” means, as of any date of
determination, without duplication, the sum of (a) all
Indebtedness of the Consolidated Group outstanding at such date,
determined on a consolidated basis in accordance with GAAP, plus
(b) the applicable Consolidated Group Pro Rata Share of any
Indebtedness of each Investment Affiliate other than Indebtedness
of such Investment Affiliate to a member of the Consolidated Group,
less (c) with respect to each consolidated Subsidiary of the
Borrower in which the Borrower does not directly or indirectly hold
a 100% ownership interest, a percentage of any Indebtedness of such
consolidated Subsidiary which is not a Guarantee Obligation of the
Borrower equal to the percentage ownership interest in such
consolidated Subsidiary which is not held directly or indirectly by
the Borrower.
“Construction in
Progress” means, as of any date, the total construction cost
expended as of the applicable date to construct any Projects then
under development plus the book value of all land not then included
in Unimproved Land.
“Controlled
Group” means all members of a controlled group of
corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the
Borrower or any of its Subsidiaries, are treated as a single
employer under Section 414 of the Code.
“Conversion/Continuation
Notice” is defined in Section 2.7 .
“Convertible Notes” means
Inland Real Estate Corporation $180,000,000.00, 4.625% Convertible
Senior Notes Due 2026 which closed on November 13,
2026.”
.
“Default”
means an event described in Article VII .
“Defaulting
Lender” means any Lender which fails or refuses to perform
its obligations under this Agreement within the time period
specified for performance of such obligation, or, if no time frame
is specified, if such failure or refusal continues for a period of
five Business Days after written notice from the Administrative
Agent; provided that if such Lender cures such failure or refusal,
such Lender shall cease to be a Defaulting Lender.
“Default
Rate” means the interest rate which may apply during the
continuance of a Default pursuant to Section 2.9
.
“Development
Project” means a Project currently under development that has
not achieved an Occupancy Rate of at least 80%, or on which the
improvements (other than tenant improvements) related to the
development have not been completed. A Development Project on which
all improvements (other than tenant improvements) related to the
development of such Project have been completed for at least 12
months shall cease to constitute a Development Project
notwithstanding the fact that such Project has not achieved an
Occupancy Rate of at least 80%.
“ Eligible
Assignee ” means (a) another Lender, (b) with
respect to any Lender, any Affiliate of that Lender, (c) any
commercial bank having a combined capital and surplus of
$5,000,000,000 or more, (d) the central bank of any country
which is a member of the Organization for Economic Cooperation and
Development, (e) any savings bank, savings and loan
association or similar financial institution which (A) has a
net worth of $500,000,000 or more, (B) is engaged in the
business of lending money and extending credit under credit
facilities substantially similar to those extended under this
Agreement and (C) is operationally and procedurally able to
meet the obligations of a Lender hereunder to the same degree as a
commercial bank, and (f) any other financial institution
(including a mutual fund or other fund) approved by the
Administrative Agent and, unless a Default shall have occurred and
be continuing, Borrower (such approval not to be unreasonably
withheld or delayed) having total assets of $500,000,000 or more
which meets the requirements set forth in
subclauses (B) and (C) of clause (e)
above; provided that each Eligible Assignee must either
(a) be organized under the Laws of the United States of
America, any State thereof or the District of Columbia or
(b) be organized under the Laws of the Cayman Islands or any
country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of such a
country, and (i) act hereunder through a branch, agency or
funding office located in the United States of America and
(ii) be exempt from withholding of tax on interest.
“Environmental
Laws” means any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other
Requirements of Law (including common law) regulating, relating to
or imposing liability or standards of conduct concerning protection
of human health or the environment, as now or may at any time
hereafter be in effect, in each case to the extent the foregoing
are applicable to the Borrower or any Subsidiary or any of their
respective assets or Projects.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued
thereunder.
“Excluded
Taxes” means, in the case of each Lender or applicable
Lending Installation and the Administrative Agent, taxes imposed on
its overall net income, and franchise taxes imposed on it, by any
jurisdiction with taxing authority over the Lender.
“Excluded
Tenants” means, as of any date, any tenant at one of the
Projects that either (i) is subject to a voluntary or involuntary
petition for relief under any federal or state bankruptcy codes or
insolvency law or (ii) is not operating its business in its demised
premises at such Project, unless such tenant’s lease
obligations are guaranteed by an entity whose then current
long-term, unsecured debt obligations are rated BBB-- or above by
S&P and Baa3 or above by Moody’s.
“Executive
Order” is defined in Section 5.28 .
“Facility
Obligations” means all Obligations other than the Related
Swap Obligations.
“Federal Funds
Effective Rate” shall mean, for any day, the rate per annum
(rounded upward to the nearest one one-hundredth of one percent
(1/100 of 1%)) announced by the Federal Reserve Lender of Cleveland
on such day as being the weighted average of the rates on overnight
federal funds transactions arranged by federal funds brokers on the
previous trading day, as computed and announced by such Federal
Reserve Lender in substantially the same manner as such Federal
Reserve Lender computes and announces the weighted average it
refers to as the “Federal Funds Effective Rate.”
“Fee
Letters” is defined in Section 2.5 .
“Financeable
Ground Lease” means, a ground lease reasonably satisfactory
to the Administrative Agent, which must provide customary
protections for a potential leasehold mortgagee
(“Mortgagee”) which include, among other things
(i) a remaining term, including any optional extension terms
exercisable unilaterally by the tenant, of no less than 25 years,
(ii) a provision that the ground lease will not be terminated
until the Mortgagee has received notice of a default, has had a
reasonable opportunity to cure or complete foreclosure, and has
failed to do so, (iii) provision for a new lease to the
Mortgagee as tenant on the same terms if the ground lease is
terminated for any reason, (iv) transferability of the
tenant’s interest under the ground lease without any
requirement for consent of the ground lessor unless based on
delivery of customary assignment and assumption agreements from the
transferor and transferee, (v) the ability of the tenant to
mortgage tenant’s interest under the ground lease without any
requirement for consent of the ground lessor, and
(vi) that the tenant under the ground lease is entitled to all
insurance proceeds and condemnation awards (other than the amount
attributable to landlord’s fee interest in the land if an
adjustment in rent is provided for in connection
therewith).
“First Mortgage
Receivable” means any Indebtedness owing to a member of the
Consolidated Group which is secured by a first-priority mortgage or
deed of trust on commercial real estate having a value in excess of
the amount of such Indebtedness and which has been designated by
the Borrower as a “First Mortgage Receivable” in its
most recent compliance certificate.
“Fixed
Charges” shall mean, as of any date, the sum of (i)
Consolidated Debt Service for the most recent fiscal quarter of
Borrower for which financial results have been reported times four
(4) plus (ii) all dividends payable on account of preferred stock
or preferred operating partnership units of the Borrower or any
other Person in the Consolidated Group (including dividends to
Inland Ryan joint ventures) with respect to the four (4)
immediately preceding fiscal quarters of Borrower for which
financial results have been reported.
“Fixed
Rate” means the LIBOR Rate.
“Fixed Rate
Loan” means a Loan which bears interest at a Fixed
Rate.
“Floating
Rate” means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable
Margin, in each case changing when and as the Alternate Base Rate
changes.
“Floating Rate
Loan” means a Loan which bears interest at the Floating
Rate.
“Funded
Percentage” means, with respect to any Lender at any time, a
percentage equal to a fraction the numerator of which is the amount
actually disbursed and outstanding to Borrower by such Lender at
such time and the denominator of which is the total amount
disbursed and outstanding to Borrower by all of the Lenders at such
time.
“Funds From
Operations” shall have the meaning determined from time to
time by the National Association of Real Estate Investment Trusts
to be the meaning most commonly used by its members.
“GAAP”
means generally accepted accounting principles in the United States
of America as in effect from time to time, applied in a manner
consistent with that used in preparing the financial statements
referred to in Section 6.1 .
“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.
“Guarantee
Obligation” means, as to any Person (the “
guaranteeing person ”), any obligation (determined
without duplication) of (a) the guaranteeing person or
(b) another Person (including, without limitation, any bank
under any Letter of Credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counter-indemnity
or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other
obligations (the “ primary obligations ”) of any
other third Person (the “ primary obligor ”) in
any manner, whether directly or indirectly, including, without
limitation, any obligation of the guaranteeing person, whether or
not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in
respect thereof; provided , however , that the term
Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business.
The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the maximum stated amount of the
primary obligation relating to such Guarantee Obligation (or, if
less, the maximum stated liability set forth in the instrument
embodying such Guarantee Obligation), provided , that in the
absence of any such stated amount or stated liability, the amount
of such Guarantee Obligation shall be such guaranteeing
person’s maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
“Indebtedness” of any
Person at any date means without duplication, (a) all indebtedness
of such Person for borrowed money including without limitation any
repurchase obligation or liability of such Person with respect to
securities, accounts or notes receivable sold by such Person, (b)
all obligations of such Person for the deferred purchase price of
property or services (other than current trade liabilities incurred
in the ordinary course of business and payable in accordance with
customary practices), to the extent such obligations constitute
indebtedness for the purposes of GAAP, (c) any other indebtedness
of such Person which is evidenced by a note, bond, debenture or
similar instrument, (d) the attributable Indebtedness of such
Person with respect all Capitalized Lease Obligations and Synthetic
Lease Obligations, (e) all obligations of such Person in respect of
acceptances issued or created for the account of such Person, (f)
all Guarantee Obligations of such Person (excluding in any
calculation of consolidated Indebtedness of the Consolidated Group,
Guarantee Obligations of one member of the Consolidated Group in
respect of primary obligations of any other member of the
Consolidated Group), (g) all reimbursement obligations of such
Person for letters of credit and other contingent liabilities, (h)
all net obligations of such Person under Swap Contracts, and (i)
all liabilities secured by any lien (other than liens for taxes not
yet due and payable) on any property owned by such Person even
though such Person has not assumed or otherwise become liable for
the payment thereof. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date. To the extent that the
rights and remedies of the obligee of any Indebtedness are limited
to certain Property and are otherwise non-recourse to such Person,
the amount of such Indebtedness shall be limited to the value of
the Person’s interest in such Property (valued at the higher
of book value or market value as of the date of
determination).
“Intellectual
Property” is defined in Section 5.20 .
“Interest
Period” means a LIBOR Interest Period.
“Investment” of a
Person means any loan, advance (other than commission, travel and
similar advances to officers and employees made in the ordinary
course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms
customary in the trade), deposit account or contribution of capital
by such Person to any other Person or any investment in, or
purchase or other acquisition of, the stock, partnership interests,
notes, debentures or other securities of any other Person made by
such Person.
“Investment
Affiliate” means any Person in which the Consolidated Group,
directly or indirectly, holds an ownership interest whose financial
results are not consolidated under GAAP with the financial results
of the Consolidated Group, excluding those Persons in whom the
Consolidated Group’s ownership interest is evidenced only by
Marketable Securities.
“Lenders” means
the lending institutions listed on the signature pages of this
Agreement, their respective successors and assigns, any other
lending institutions that subsequently become parties to this
Agreement.
“Lending
Installation” means, with respect to a Lender, any office,
branch, subsidiary or affiliate of such Lender.
“Letter of
Credit” of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or
upon which such Person is an account party or for which such Person
is in any way liable.
“Leverage
Ratio” means, as of any date, the ratio of Consolidated
Outstanding Indebtedness to Total Asset Value.
“LIBOR
Advance” means an Advance that bears interest at the LIBOR
Rate.
“LIBOR Base
Rate” means, the average rate (rounded upwards to the nearest
1/16 th ) with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, the applicable British
Bankers’ Association LIBOR rate for deposits in
U.S. dollars as reported by any generally recognized financial
information service as of 11:00 a.m. (London time) two
Business Days prior to the first day of such LIBOR Interest Period,
and having a maturity equal to such LIBOR Interest Period,
provided that, if no such British Bankers’ Association
LIBOR rate is available to the Administrative Agent, the applicable
LIBOR Base Rate for the relevant LIBOR Interest Period shall
instead be the rate determined by the Administrative Agent to be
the rate at which KeyBank or one of its Affiliate banks offers to
place deposits in U.S. dollars with first-class banks in the London
interbank market at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such LIBOR Interest Period,
in the approximate amount of KeyBank’s relevant LIBOR Loan
and having a maturity equal to such LIBOR Interest
Period.
“LIBOR Interest
Period” means, with respect to each amount bearing interest
at a LIBOR based rate, a period of one, two, three, or six months,
to the extent deposits with such maturities are available to the
Administrative Agent, commencing on a Business Day, as selected by
Borrower; provided, however, that (i) any LIBOR Interest
Period which would otherwise end on a day which is not a Business
Day shall continue to and end on the next succeeding Business Day,
unless the result would be that such LIBOR Interest Period would be
extended to the next succeeding calendar month, in which case such
LIBOR Interest Period shall end on the next preceding Business Day
and (ii) any LIBOR Interest Period which begins on a day for
which there is no numerically corresponding date in the calendar
month in which such LIBOR Interest Period would otherwise end shall
instead end on the last Business Day of such calendar
month.
“LIBOR
Loan” means a Loan which bears interest at a LIBOR
Rate.
“LIBOR
Rate” means, for any LIBOR Interest Period, the sum of (A)
the LIBOR Base Rate applicable thereto divided by one minus the
then-current Reserve Requirement and (B) the Applicable
Margin.
“Lien”
means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, the interest of a vendor or lessor under any
conditional sale, Capitalized Lease or other title retention
agreement).
“Line of Credit
Agreement” means that certain Third Amended and Restated
Credit Agreement dated April 21, 2008, as amended by a First
Amendment thereto dated as of August 14, 2008, by and among Inland
Real Estate Corporation, Key Bank National Association, Keybanc
Capital Markets, Wachovia Bank, National Association, Wachovia
Capital Markets, LLC, and certain other lenders, as it may from
time to time hereafter be further amended.
“Loan”
means, with respect to a Lender, any portion of the Aggregate
Commitment which has been advanced to the Borrower by such Lender
and has not been repaid.
“Loan
Documents” means this Agreement, the Notes, the Subsidiary
Guaranty, and any other document from time to time evidencing or
securing indebtedness incurred by the Borrower under this
Agreement, as any of the foregoing may be amended or modified from
time to time.
“Marketable
Securities” means Investments in Capital Stock or debt
securities issued by any Person (other than an Investment
Affiliate) which are publicly traded on a national exchange,
excluding Cash Equivalents.
“Maturity
Date” means the first to occur of (i) September 2, 2010, or
(ii) such earlier date on which the aggregate principal balance of
the Advances becomes due and payable.
“Material Adverse
Effect” means, in the Administrative Agent’s reasonable
discretion, a material adverse effect on (i) the business, Property
or condition (financial or otherwise) of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Borrower to
perform its obligations under the Loan Documents, or (iii) the
validity or enforceability of any of the Loan Documents.
“Materials of
Environmental Concern” means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products
or any hazardous or toxic substances, materials or wastes, defined
or regulated as such in or under any Environmental Law, including,
without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
“Maximum Legal
Rate” means the maximum nonusurious interest rate, if any,
that at any time or from time to time may be contracted for, taken,
reserved, charged or received on the indebtedness evidenced by the
Note and as provided for herein or in the Note or other Loan
Documents, under the laws of such state or states whose laws are
held by any court of competent jurisdiction to govern the interest
rate provisions of the Loan.
“Moody’s” means
Moody’s Investors Service, Inc. and its
successors.
“Multiemployer
Plan” means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower
or any member of the Controlled Group is a party to which more than
one employer is obligated to make contributions.
“Negative Pledge” means, with
respect to a given asset, any provision of a document, instrument
or agreement (other than any Loan Document) which prohibits or
purports to prohibit the creation or assumption of any Lien on such
asset as security for Indebtedness of the Person owning such asset
or any other Person; provided, however, that an agreement that
conditions a Person’s ability to encumber its assets upon the
maintenance of one or more specified ratios that limit such
Person’s ability to encumber its assets but that do not
generally prohibit the encumbrance of its assets, or the
encumbrance of specific assets, shall not constitute a Negative
Pledge.
“Net Operating
Income” means, with respect to any Project for any period,
“property rental and other income” (as determined by
GAAP) attributable to such Project accruing for such period
minus the amount of all expenses (as determined in
accordance with GAAP) incurred in connection with and directly
attributable to the ownership and operation of such Project for
such period, including, without limitation, Management Fees and
amounts accrued for the payment of real estate taxes and insurance
premiums, but excluding interest expense or other debt service
charges and any non-cash charges such as depreciation or
amortization of financing costs. As used herein “
Management Fees ”, means, with respect to each Project
for any period, an amount equal to the greater of (i) actual
management fees payable with respect thereto and (ii) three percent
(3%) per annum on the aggregate base rent and percentage rent due
and payable under leases at such Project.
“Non-U.S.
Lender” is defined in Section 3.5(iv) .
“Note”
means a promissory note, in substantially the form of Exhibit
B hereto, duly executed by the Borrower and payable to the
order of a Lender in the amount of its Commitment, including any
amendment, modification, renewal or replacement of such promissory
note.
“Notice of
Assignment” is defined in Section 12.3.2 .
“Obligations” means the
Advances, the Related Swap Obligations and all accrued and unpaid
fees and all other obligations of Borrower to the Administrative
Agent or the Lenders arising under this Agreement or any of the
other Loan Documents.
“Occupancy
Rate” means with respect to a Project at any time, the ratio,
expressed as a percentage, of (a) the net rentable square
footage of such Project actually occupied by tenants that are not
affiliated with the Borrower and paying rent at rates not
materially less than rates generally prevailing at the time the
applicable lease was entered into, pursuant to binding leases as to
which no monetary default has occurred and has continued unremedied
for 60 or more days to (b) the aggregate net rentable square
footage of such Project. For purposes of the definition of
“Occupancy Rate”, a tenant shall be deemed to actually
occupy a Project notwithstanding a temporary cessation of
operations for renovation, repairs or other temporary reason, or
for the purpose of completing tenant build-out or that is otherwise
scheduled to be open for business within 90 days of such
date.
“Other
Taxes” is defined in Section 3.5(ii) .
“Other Triple Net
Leased Property” means any real estate asset owned by
Borrower or any of its Subsidiaries or any Investment Affiliate
(other than a Project) that has been improved with an office
building or other commercial building which is leased on a triple
net basis to a single tenant.
“Outstanding
Facility Amount” means, at any time, all then outstanding
Advances.
“Participants” is
defined in Section 12.2.1 .
“Payment
Date” means, with respect to the payment of interest accrued
on the Loans, the first day of each calendar month.
“PBGC”
means the Pension Benefit Guaranty Corporation, or any successor
thereto.
“Percentage” means for
each Lender the ratio that such Lender’s Commitment bears to
the Aggregate Commitment, expressed as a percentage.
“Permitted
Acquisitions” are defined in Section 6.15 .
“Permitted
Liens” are defined in Section 6.16 .
“Person”
means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust or other entity or
organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
“Plan”
means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section
412 of the Code as to which the Borrower or any member of the
Controlled Group may have any liability.
“Prime
Rate” means a rate per annum equal to the prime rate of
interest publicly announced from time to time by KeyBank or its
parent as its prime rate (which is not necessarily the lowest rate
charged to any customer), changing when and as said prime rate
changes. In the event that there is a successor to the
Administrative Agent by merger, or the Administrative Agent assigns
its duties and obligations to an Affiliate, then the term
“Prime Rate” as used in this Agreement shall mean the
prime rate, base rate or other analogous rate of the new
Administrative Agent.
“Prohibited
Person” is defined in Section 5.28 .
“Project”
means any real estate asset owned by Borrower or any of its
Subsidiaries or any Investment Affiliate, and operated or intended
to be operated as a retail property.
“Property”
of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets
owned, leased or operated by such Person.
“Qualifying
Unencumbered Property” means any Stabilized Retail Project
which as of any date of determination, (a) is wholly owned by a
Subsidiary Guarantor, in fee simple or under the terms of a
Financeable Ground Lease, (b) is located in the United States, (c)
neither such Project, nor any interest of the Borrower or any
Subsidiary therein, is subject to any lien other than Permitted
Liens set forth in Sections 6.16(i) through 6.16(v) or a Negative
Pledge; (d) if such Project is owned or leased by a Subsidiary
Guarantor (i) none of the Borrower’s direct or indirect
ownership interest in such Subsidiary Guarantor is subject to any
lien, or agreement (including any agreement governing
Indebtedness incurred in order to finance or refinance the
acquisition of such Project) which prohibits or limits the ability
of such Subsidiary Guarantor to create, incur, assume or suffer to
exist any Lien upon any Projects or Capital Stock of such
Subsidiary Guarantor or to a Negative Pledge; and (ii) the
Borrower directly, or indirectly through a Subsidiary, has the
right to take the following actions without the need to obtain the
consent of any Person: (x) to sell, transfer or otherwise
dispose of such Project and (y) to create a Lien on such
Project as security for Indebtedness of the Borrower or such
Subsidiary Guarantor, as applicable; (e) is not subject to any
agreement (including any agreement governing Indebtedness incurred
in order to finance or refinance the acquisition of such Project)
which entitles any Person to the benefit of any Lien (other than
Permitted Liens set forth in Sections 6.16(i) through 6.16(iv)) on
any Project or Capital Stock of such Subsidiary Guarantor or would
entitle any Person to the benefit of any such Lien upon the
occurrence of any contingency (including, without limitation,
pursuant to an “equal and ratable” clause);
(f) such Project is free of all structural defects or major
architectural deficiencies, title defects, environmental conditions
or other adverse matters except for defects, deficiencies,
conditions or other matters individually or collectively which are
not material to the profitable operation of such Project as
evidenced by a certification of the Borrower; and (g) when
aggregated with all other Qualifying Unencumbered Properties,
results in the Qualifying Unencumbered Properties as a whole having
at least eighty percent (80%) of their aggregate gross leasable
area physically occupied. No asset shall be deemed to be
unencumbered unless both such asset and all Capital Stock of the
Subsidiary Guarantor owning such asset is unencumbered.
“Recourse
Indebtedness” means any Indebtedness of Borrower or any other
member of the Consolidated Group with respect to which the
liability of the obligor is not limited to the obligor’s
interest in specified assets securing such Indebtedness, subject to
customary limited exceptions for certain acts or types of
liability.
“Regulation
D” means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any
successor thereto or other regulation or official interpretation of
said Board of Governors relating to reserve requirements applicable
to member banks of the Federal Reserve System.
“Regulation
U” means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any
successor or other regulation or official interpretation of said
Board of Governors relating to the extension of credit by banks for
the purpose of purchasing or carrying margin stocks applicable to
member banks of the Federal Reserve System.
“Related Swap
Obligations” means, as of any date, all of the obligations of
Borrower arising under any then outstanding Swap Contracts entered
into between Borrower and any Lender or Affiliate of any
Lender.
“Reportable
Event” means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect
to a Plan, excluding, however, such events as to which the PBGC by
regulation waived the requirement of Section 4043(a) of ERISA that
it be notified within 30 days of the occurrence of such event,
provided, however, that a failure to meet the minimum funding
standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such
waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.
“Required
Lenders” means Lenders in the aggregate having at least 66
2/3% of the Aggregate Commitment or, if the Aggregate Commitment
has been terminated, Lenders in the aggregate holding at least 66
2/3% of the aggregate unpaid principal amount of the outstanding
Advances. Notwithstanding the foregoing (i) the Commitments
of, and Advances made by, any Lender which is a Defaulting Lender
shall be excluded from the calculations of the Aggregate Commitment
and aggregate Advances for such purposes during the period that
such Lender is a Defaulting Lender, and (ii) at such times as there
are two or more Lenders hereunder, the “Required
Lenders” must include at least two of such Lenders even if
one Lender holds more than 66-2/3% of the Aggregate Commitment or
aggregate Advances.
“Reserve
Requirement” means, with respect to a LIBOR Loan and LIBOR
Interest Period, that percentage (expressed as a decimal) which is
in effect on such day, as prescribed by the Federal Reserve Board
or other governmental authority or agency having jurisdiction with
respect thereto for determining the maximum reserves (including,
without limitation, basic, supplemental, marginal and emergency
reserves) for eurocurrency funding (currently referred to as
“Eurocurrency Liabilities” in Regulation D) maintained
by a member bank of the Federal Reserve System.
“Section”
means a numbered section of this Agreement, unless another document
is specifically referenced.
“Secured
Indebtedness” means any Indebtedness of the Borrower or any
other member of the Consolidated Group which is secured by a Lien
on a Project, any ownership interests in any Person or any other
assets which had, in the aggregate, a value in excess of the amount
of such Indebtedness at the time such Indebtedness was
incurred.
“Single Employer
Plan” means a Plan maintained by the Borrower or any member
of the Controlled Group for employees of the Borrower or any member
of the Controlled Group.
“S&P”
means Standard & Poor’s Ratings Group and its
successors.
“Stabilized
Retail Projects” mean any neighborhood shopping centers,
community shopping centers, sale/leaseback with retail tenants,
stand-alone, triple net retail properties and any other stabilized
Projects approved by the Administrative Agent.
“Subsidiary” of a
Person means (i) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or
by one or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries, or (ii) any partnership, association,
joint venture or similar business organization more than 50% of the
ownership interests having ordinary voting power of which shall at
the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a
“Subsidiary” shall mean a Subsidiary of the
Borrower.
“Subsidiary
Guarantor” means each Wholly-Owned Subsidiary of the Borrower
which is required to execute a Subsidiary Guaranty pursuant to
Section 6.13 .
“Subsidiary
Guaranty” means the guaranty to be executed and delivered by
those Subsidiaries of the Borrower listed on Schedule 5 and such
other Wholly-Owned Subsidiaries as may hereafter be obligated to
join in such guaranty as provided in Section 6.13 ,
substantially in the form of Exhibit F , as the same may be
amended, supplemented or otherwise modified from time to
time.
“Substantial
Portion” means, with respect to the Property of the Borrower
and its Subsidiaries, Property which represents more than 10% of
then-current Total Asset Value.
“Swap
Contract” means (a) any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate
transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond
price or bond index swaps or options or forward bond or forward
bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions,
floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency
options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter
into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any
and all transactions of any kind, and the related confirmations,
which are subject to the terms and conditions of, or governed by,
any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such
master agreement, together with any related schedules, a
“Master Agreement”), including any such obligations or
liabilities under any Master Agreement.
“Swap Termination
Value” means, in respect of any one or more Swap Contracts,
after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any
date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date
referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined
based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a
Lender).
“Taxes” means any
and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and any and all liabilities
with respect to the foregoing, but excluding Excluded Taxes and
Other Taxes.
“Total Asset
Value” means, as of any date, (i) Adjusted Annual NOI
attributable to Projects owned by the Borrower or a member of the
Consolidated Group (excluding 100% of the Adjusted Annual NOI
attributable to Projects not owned for the entire fiscal quarter on
which Adjusted Annual NOI is calculated and for the five (5)
immediately proceeding entire fiscal quarters and excluding all
lease termination fees and all interest and dividend income),
divided by the Capitalization Rate, plus (ii) 100% of the price
paid for any such Projects first acquired by the Borrower or a
member of the Consolidated Group during such period of six (6)
consecutive entire fiscal quarters, plus (iii) Unrestricted Cash,
Cash Equivalents and Marketable Securities owned by the
Consolidated Group as of the end of the last such fiscal quarter,
plus (iv) the Consolidated Group’s Pro Rata Share of (A)
Adjusted Annual NOI attributable to Projects owned by Investment
Affiliates (excluding Adjusted Annual NOI attributable to Projects
not owned for the entire fiscal quarter on which Adjusted Annual
NOI is calculated and for the five (5) entire immediately preceding
fiscal quarters) divided by (B) the Capitalization Rate, plus (v)
the Consolidated Group Pro Rata Share of the price paid for such
Projects first acquired by an Investment Affiliate during such
period of six (6) consecutive entire fiscal quarters, plus (vi)
Construction in Progress and First Mortgage Receivables of the
Borrower or any other member of the Consolidated Group (with each
such asset valued at the lower of its acquisition cost and its fair
market value), plus (vii) Unimproved Land (with each such asset
valued at the lower of its acquisition cost and its fair market
value), plus (viii) Other Triple Net Leased Properties owned by
Borrower or a member of the Consolidated Group (with each such
asset valued at the lower of its acquisition cost and its fair
market value), plus (ix) the Consolidated Group Pro Rata Share of
any Other Triple Net Leased Properties owned by an Investment
Affiliate (with each such asset valued at the lower of its
acquisition cost and its fair market value). .
“Transferee” is defined
in Section 12.4 .
“Type”
means, with respect to any Loan, its nature as a Floating Rate Loan
or LIBOR Loan.
“Unencumbered
Asset Value” means, as of any date, the sum of (a) (i) the
aggregate Adjusted Unencumbered NOI attributable to Qualifying
Unencumbered Properties then owned by Borrower or a Subsidiary
Guarantor which have been owned by Borrower or a Subsidiary
Guarantor for the most recent full fiscal quarter for which
financial results of Borrower have been reported and for the five
(5) immediately preceding entire fiscal quarters multiplied by four
and divided by (ii) the Capitalization Rate plus (b) the aggregate
acquisition cost of all Qualifying Unencumbered Properties then
owned by Borrower or a Subsidiary Guarantor but not so owned for
such period of six (6) consecutive entire fiscal quarters, plus (c)
the GAAP book value of Development Projects not subject to any Lien
(other than Permitted Liens set forth in Sections 6.16(i) through
6.16(v)) or any Negative Pledge, plus (d) all Unrestricted Cash,
Cash Equivalents, and Marketable Securities and all First Mortgage
Receivables (valued at the lower of its acquisition cost and its
fair market value). For purposes of this definition, to the
extent i) the aggregate amount included in Unencumbered Asset Value
under clause (d) above would exceed 10% of the Unencumbered Asset
Value, or ii) the aggregate amount included in Unencumbered Asset
Value attributable to Development Properties under clause (c) above
would exceed 15% of the Unencumbered Pool Asset Value or the
aggregate amount included under clause (c) and (d) together would
exceed 20% of Unencumbered Asset Value, such excess shall be
excluded. To the extent Unencumbered Asset Value attributable
to Qualifying Unencumbered Properties which are occupied pursuant
to Financeable Ground Leases would exceed 10% of Unencumbered Asset
Value, such excess shall be excluded .
“Unencumbered
Leverage Ratio” means Unencumbered Asset Value divided by
Unsecured Indebtedness.
“Unencumbered
NOI” means, as of any date, the sum of (a) the aggregate Net
Operating Income for the most recent fiscal quarter for which
financial results have been reported attributable to all Qualifying
Unencumbered Properties owned for the entirety of such fiscal
quarter as of the last day of such fiscal quarter plus , (b)
in the case of any Qualifying Unencumbered Property that was owned
as of the last day of such fiscal quarter by Borrower or a
Subsidiary Guarantor, but not so owned for the full fiscal quarter,
the additional amount of Net Operating Income that would have been
earned if such Qualifying Unencumbered Property had been so owned
for the full fiscal quarter.
“Unencumbered
Trigger Date” means the first to occur of (i) the fifth (5
th ) day subsequent to the date on which the
Administrative Agent receives a compliance certificate pursuant to
Section 6.1(v) evidencing that Borrower has achieved an
Unencumbered Leverage Ratio of at least 1.50, provided that the
Administrative Agent does not object to the information provided in
such certificate, or (ii) December 31, 2008.
“Unfunded
Liabilities” means the amount (if any) by which the present
value of all vested nonforfeitable benefits under all Single
Employer Plans exceeds the fair market value of all such Plan
assets allocable to such benefits, all determined as of the then
most recent valuation date for such Plans.
“Unimproved
Land” means, as of any date, any land which (i) is not
appropriately zoned for retail development, (ii) does not have
access to all necessary utilities or (iii) does not have access to
publicly dedicated streets, unless such land has been designated in
writing by the Borrower in a certificate delivered to the
Administrative Agent as land that is reasonably expected to satisfy
all such criteria within twelve (12) months after such
date.
“Unmatured
Default” means an event which but for the lapse of time or
the giving of notice, or both, would constitute a
Default.
“Unrestricted
Cash, Cash Equivalents and Marketable Securities” means, in
the aggregate, all cash, Cash Equivalents and Marketable Securities
which are not pledged or otherwise restricted for the benefit of
any creditor and which are owned by the Borrower or another member
of the Consolidated Group, to be valued for purposes of this
Agreement at 100% of its then-current book value, as determined
under GAAP.
“Unsecured Debt
Service” means, as of any date, an imputed annual amount of
interest that would be due on the outstanding amount of Unsecured
Indebtedness as of the last day of the most recent fiscal quarter
of Borrower for which financial results have been reported
calculated at the interest rate applicable to such Unsecured
Indebtedness as of such last day (using the LIBOR Rate and related
Applicable Margin in effect on such last day for purposes of
calculating interest on the Advances).
“Unsecured Debt
Service Coverage” means Adjusted Unencumbered NOI divided by
Unsecured Debt Service.
“Unsecured
Indebtedness” means all Consolidated Outstanding Indebtedness
that is not Secured Indebtedness.
“Wholly-Owned
Subsidiary” of a Person means (i) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned
or controlled, directly or indirectly, by such Person or one or
more Wholly-Owned Subsidiaries of such Person, or by such Person
and one or more Wholly-Owned Subsidiaries of such Person, or (ii)
any partnership, association, joint venture or similar business
organization 100% of the ownership interests having ordinary voting
power of which shall at the time be so owned or
controlled.
The foregoing
definitions shall be equally applicable to both the singular and
plural forms of the defined terms.
ARTICLE
II
THE TERM LOAN
2.1
Generally
. Subject to the
terms and conditions of this Agreement, the Lenders agree to make a
single disbursement loan to the Borrower in an aggregate principal
amount equal to the then current Aggregate Commitment. This is a term loan
agreement, not a revolving credit facility. Any Loans made
hereunder shall not be available to be readvanced once repaid and
the Lenders shall have no commitment to so readvance all or any
part of the Advances once repaid. Each Lender shall fund its
Percentage of such single disbursement and no Lender will be
required to fund any amounts which would exceed such Lender’s
then current Commitment.
2.2
Increase in
Aggregate Commitment . The Borrower shall have the
right from time to time, provided no Default or Unmatured Default
has occurred and is then continuing, to increase the Aggregate
Commitment up to a maximum of $200,000,000 by either adding new
lenders as Lenders (subject to the Lead Arrangers’ and
Administrative Agent’s prior written approval of the identity
of such new lenders) or obtaining the agreement, which shall be at
such Lender’s or Lenders’ sole discretion, of one or
more of the then current Lenders to increase its or their
Commitments. The Administrative Agent shall use commercially
reasonable efforts to arrange such increased Commitments and the
Borrower’s approval of any new lenders shall not be
unreasonably withheld or delayed. On the effective date of
any such increase, the Borrower shall pay to the Administrative
Agent and Syndication Agent any amounts due under the Fee Letters
and to each lender providing such additional Commitment the
up-front fee agreed to by the Borrower, and a single Advance in the
full amount of such increase shall be made. Such increases
shall be evidenced by the execution and delivery of an Amendment
Regarding Increase in the form of Exhibit A attached hereto
by the Borrower, the Administrative Agent and the new lender or
existing Lender providing such additional Commitment, a copy of
which shall be forwarded to each Lender by the Administrative Agent
promptly after execution thereof. In no event shall the
Aggregate Commitment exceed $200,000,000 without the approval of
all of the Lenders.
2.3
Payment of
Interest .
The Borrower promises to pay to the
Administrative Agent for the account of each Lender interest on the
unpaid principal amount of each Loan made by such Lender for the
period from and including the date of the making of such Loan to
but excluding the date such Loan shall be paid in full, at the
following per annum rates:
(a) during such periods
as such Loan is a Floating Rate Loan, at the Floating Rate;
and
(b) during such periods
as such Loan is a Fixed Rate Loan, at the Fixed Rate with respect
to the LIBOR Interest Period applicable to such Fixed Rate
Loan.
2.4
Principal
Repayment .
The entire outstanding principal amount of the Loan, and all
accrued but unpaid interest on, shall be paid in full by the
Borrower on the Maturity Date.
2.5
Other
Fees .
The Borrower agrees to pay all fees payable to the
Administrative Agent and Syndication Agent pursuant to the
Borrower’s letter agreements with the Administrative Agent
dated as of July 22, 2008, and the Syndication Agent dated as
of July 22, 2008 (collectively, the letter agreements will be
referred to as the “ Fee Letters ”).
2.6
Method of Selecting
Types and Interest Periods for Advances . A single Advance shall be made
hereunder by each Lender in the full amount of the initial
Aggregate Commitment of such Lender, or in the case of an increase
in the Aggregate Commitment of an existing Lender made pursuant to
Section 2.2, in the full amount of such increase. The
Borrower shall select the Type of Loans that comprise each such
Advance and, in the case of each Fixed Rate Loan, the Interest Period applicable to each Loan from
time to time. The Borrower shall give the Administrative
Agent irrevocable notice (a “ Borrowing Notice
”) in the form attached as Exhibit I (i) not
later than 3:00 p.m. Cleveland time on the Business Day immediately
preceding the Borrowing Date of each Advance that contains only
Floating Rate Loans, and (ii) not later than 10:00 a.m. Cleveland
time, at least three (3) Business Days before the Borrowing Date
for each Advance that includes a LIBOR Loan:
(i)
the Borrowing Date,
which shall be a Business Day, of such Advance,
(ii)
the aggregate amount of
such Advance,
(iii)
the Type of Loans
selected and,
(iv)
in the case of each
Fixed Rate Loan, the Interest Period applicable thereto.
The Administrative
Agent shall provide a copy to the Lenders by facsimile of each
Borrowing Notice and each Conversion/Continuation Notice not later
than the close of business on the Business Day it is received.
Each Lender shall make available its Loan or Loans, in funds
immediately available in Cleveland to the Administrative Agent at
its address specified pursuant to Article XIII on each
Borrowing Date not later than (i) 10:00 a.m. (Cleveland time),
in the case of Floating Rate Loans which have been requested by a
Borrowing Notice given to the Administrative Agent not later than
3:00 p.m. (Cleveland time) on the Business Day immediately
preceding such Borrowing Date, or (ii) noon (Cleveland time)
in the case of all other Loans. The Administrative Agent will
make the funds so received from the Lenders available to the
Borrower at the Administrative Agent’s aforesaid
address.
No Interest Period may
end after the Maturity Date and, unless the Lenders otherwise agree
in writing, in no event may there be more than seven (7) different
Interest Periods for Fixed Rate Loans outstanding at any one
time.
2.7
Conversion and
Continuation of Outstanding Loans . Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate
Loans are converted into Fixed Rate Loans. Each Fixed Rate
Loan shall continue as a Fixed Rate Loan until the end of the then
applicable Interest Period therefor, at which time such Fixed Rate
Loan shall be automatically converted into a Floating Rate Loan
unless the Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice requesting that, at the end
of such Interest Period, such Fixed Rate Loan either continue as a
Fixed Rate Loan for the same or another Interest Period or be
converted to a Loan of another Type. The Borrower may elect
from time to time to convert all or any part of an Loan of any Type
into any other Type or Types of Loan; provided that any conversion
of any Fixed Rate Loan shall be made on, and only on, the last day
of the Interest Period applicable thereto. The Borrower shall
give the Administrative Agent irrevocable notice (a
“Conversion/Continuation Notice”) of each conversion of
a Loan to a Fixed Rate Loan or
continuation of a Fixed Rate Loan not later than 10:00 a.m.
(Cleveland time), at least three Business Days, in the case of a
conversion into or continuation of a LIBOR Loan, prior to the date
of the requested conversion or continuation, specifying:
(i)
the requested date
which shall be a Business Day, of such conversion or
continuation;
(ii)
the aggregate amount
and Type of the Loan which is to be converted or continued;
and
(iii)
the amount and Type(s)
of Loan(s) into which such Loan is to be converted or continued
and, in the case of a conversion into or continuation of a Fixed
Rate Loan, the duration of the Interest Period applicable
thereto.
2.8
Changes in Interest
Rate, Etc. Each Floating Rate Loan shall
bear interest on the outstanding principal amount thereof, for each
day from and including the date such Loan is made or is converted
from a Fixed Rate Loan into a Floating Rate Loan pursuant to
Section 2.7 to but excluding the date it becomes due or
is converted into a Fixed Rate Loan pursuant to Section 2.7
hereof, at a rate per annum equal to the Floating Rate for such
day. Changes in the rate of interest on that portion of any
Loan maintained as a Floating Rate Loan will take effect
simultaneously with each change in the Alternate Base Rate.
Each Fixed Rate Loan shall bear interest from and including
the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest
rate determined as applicable to such Fixed Rate Loan.
2.9
Rates Applicable
After Default . Notwithstanding anything to
the contrary contained in Section 2.6 or 2.7 , during
the continuance of a Default or Unmatured Default the Required
Lenders may, at their option, by notice to the Borrower (which
notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates),
declare that no Loan may be made as, converted into or continued as
a Fixed Rate Loan. During the continuance of a Default the
Required Lenders may, at their option, by notice to the Borrower
(which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates),
declare that (i) each Fixed Rate Loan shall bear interest for the
remainder of the applicable Interest Period at the rate otherwise
applicable to such Interest Period plus 2% per annum and (ii) each
Floating Rate Loan shall bear interest at a rate per annum equal to
the Floating Rate otherwise applicable to the Floating Rate Loan
plus 2% per annum; provided, however, that the Default Rate shall
become applicable automatically if a Default occurs under
Section 7.1 or 7.2 , unless waived by the Required
Lenders.
2.10
Method of
Payment .
All payments of the Obligations hereunder shall be made,
without setoff, deduction, or counterclaim, in immediately
available funds to the Administrative Agent at the Administrative
Agent’s address specified pursuant to
Article XIII , or at any other Lending Installation of
the Administrative Agent specified in writing by the Administrative
Agent to the Borrower, by noon (local time) on the date when due
and shall be applied ratably by the Administrative Agent among the
Lenders.
(i)
As provided elsewhere
herein, all Lenders’ interests in the Loans and the Loan
Documents shall be ratable undivided interests and none of such
Lenders’ interests shall have priority over the others.
Each payment delivered to the Administrative Agent for the
account of any Lender or amount to be applied or paid by the
Administrative Agent to any Lender shall be paid promptly (on the
same day as received by the Administrative Agent if received prior
to noon (local time) on such day and otherwise on the next Business
Day) by the Administrative Agent to such Lender in the same type of
funds that the Administrative Agent received at its address
specified pursuant to Article XIII or at any Lending
Installation specified in a notice received by the Administrative
Agent from such Lender. Payments received by the
Administrative Agent but not timely funded to the Lenders shall
bear interest payable by the Administrative Agent at the Federal
Funds Effective Rate from the date due until the date paid.
The Administrative Agent is hereby authorized to charge the
account of the Borrower maintained with KeyBank for each payment of
principal, interest and fees as it becomes due
hereunder.
2.11
Notes; Telephonic
Notices .
Each Lender is hereby authorized to record the principal
amount of each of its Loans and each repayment on the schedule
attached to its Note, provided, however, that the failure to so
record shall not affect the Borrower’s obligations under such
Note. The Borrower hereby authorizes the Lenders and the
Administrative Agent to extend, convert or continue Loans, effect
selections of Types of Loans and to transfer funds based on
telephonic notices made by any Authorized Officer. The
Borrower agrees to deliver promptly to the Administrative Agent a
written confirmation, if such confirmation is requested by the
Administrative Agent or any Lender, of each telephonic notice
signed by an Authorized Officer. If the written confirmation
differs in any material respect from the action taken by the
Administrative Agent and the Lenders, the records of the
Administrative Agent and the Lenders shall govern absent manifest
error. The Administrative Agent will at the request of the
Borrower, from time to time, but not more often than monthly,
provide notice of the amount of the outstanding Aggregate
Commitment, the Type of Loan, and the applicable interest rate, if
for a Fixed Rate Loan. Upon a Lender’s furnishing to
Borrower an affidavit to such effect, if a Note is mutilated,
destroyed, lost or stolen, Borrower shall deliver to such Lender,
in substitution therefore, a new note containing the same terms and
conditions as such Note being replaced.
2.12
Interest Payment
Dates; Interest and Fee Basis . Interest accrued on each
Loan shall be payable on each Payment Date, commencing with the
first such date to occur after the date hereof, at maturity,
whether by acceleration or otherwise. Interest and all other fees
shall be calculated for actual days elapsed on the basis of a
360-day year. Interest shall be payable for the day a Loan is
made but not for the day of any payment on the amount paid if
payment is received prior to noon (local time) at the place of
payment. If any payment of principal of or interest on a Loan
shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case
of a principal payment, such extension of time shall be included in
computing interest in connection with such payment.
2.13
Notification of
Loans, Interest Rates and Prepayments . The Administrative Agent
will notify each Lender of the contents of each Borrowing Notice,
Conversion/Continuation Notice, and repayment notice received by it
hereunder not later than the close of business on the Business Day
such notice is received by the Administrative Agent. The
Administrative Agent will notify each Lender of the interest rate
applicable to each Fixed Rate Loan promptly upon determination of
such interest rate and will give each Lender prompt notice of each
change in the Alternate Base Rate.
2.14
Lending
Installations . Each Lender may book its
Loans at any Lending Installation selected by such Lender and may
change its Lending Installation from
time to time. All terms of this
Agreement shall apply to any such Lending Installation and the
Notes shall be deemed held by each Lender for the benefit of such
Lending Installation. Each Lender may, by written or telex
notice to the Administrative Agent and the Borrower, designate a
Lending Installation through which Loans will be made by it and for
whose account Loan payments are to be made.
2.15
Non-Receipt of Funds
by the Administrative Agent . Unless the Borrower or a
Lender, as the case may be, notifies the Administrative Agent prior
to the time at which it is scheduled to make payment to the
Administrative Agent of (i) in the case of a Lender, the proceeds
of a Loan or (ii) in the case of the Borrower, a payment of
principal, interest or fees to the Administrative Agent for the
account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has
been made. The Administrative Agent may, but shall not be
obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If such
Lender or the Borrower, as the case may be, has not in fact made
such payment to the Administrative Agent, the recipient of such
payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with
interest thereon in respect of each day during the period
commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent
recovers such amount at a rate per annum equal to (i) in the case
of payment by a Lender, the Federal Funds Effective Rate for such
day or (ii) in the case of payment by the Borrower, the interest
rate applicable to the relevant Loan. If such Lender so
repays such amount and interest thereon to the Administrative Agent
within one Business Day after such demand, all interest accruing on
the Loan not funded by such Lender during such period shall be
payable to such Lender when received from the Borrower.
2.16
Replacement of
Lenders under Certain Circumstances . The Borrower shall be
permitted to replace any Lender which (a) is not capable of
receiving payments without any deduction or withholding of United
States federal income tax pursuant to Section 3.5 , or
(b) cannot maintain its Fixed Rate Loans at a suitable Lending
Installation pursuant to Section 3.3 , with a
replacement bank or other financial institution; provided
that (i) such replacement does not conflict with any
applicable legal or regulatory requirements affecting the Lenders,
(ii) no Default or (after notice thereof to Borrower) no
Unmatured Default shall have occurred and be continuing at
the time of such replacement, (iii) the Borrower shall repay
(or the replacement bank or institution shall purchase, at par) all
Loans and other amounts owing to such replaced Lender prior to the
date of replacement, (iv) the Borrower shall be liable to such
replaced Lender under Sections 3.4 and 3.6 if
any Fixed Rate Loan owing to such replaced Lender shall be prepaid
(or purchased) other than on the last day of the Interest Period
relating thereto, (v) the replacement bank or institution, if
not already a Lender, and the terms and conditions of such
replacement, shall be reasonably satisfactory to the Administrative
Agent, (vi) the replaced Lender shall be obligated to make
such replacement in accordance with the provisions of
Section 12.3 (provided that the Borrower shall be
obligated to pay the processing fee referred to therein),
(vii) until such time as such replacement shall be
consummated, the Borrower shall pay all additional amounts (if any)
required pursuant to Section 3.5 and (viii) any
such replacement shall not be deemed to
be a waiver of any rights which the Borrower, the Administrative
Agent or any other Lender shall have against the replaced
Lender.
2.17
Usury
. This Agreement
and each Note are subject to the express condition that at no time
shall Borrower be obligated or required to pay interest on the
principal balance of the Loan at a rate which could subject any
Lender to either civil or criminal liability as a result of being
in excess of the Maximum Legal Rate. If by the terms of this
Agreement or the Loan Documents, Borrower is at any time required
or obligated to pay interest on the principal balance due hereunder
at a rate in excess of the Maximum Legal Rate, the interest rate or
the Default Rate, as the case may be, shall be deemed to be
immediately reduced to the Maximum Legal Rate and all previous
payments in excess of the Maximum Legal Rate shall be deemed to
have been payments in reduction of principal and not on account of
the interest due hereunder. All sums paid or agreed to be
paid to Lender for the use, forbearance, or detention of the sums
due under the Loan, shall, to the extent permitted by applicable
law, be amortized, prorated, allocated, and spread throughout the
full stated term of the Loan until payment in full so that the rate
or amount of interest on account of the Loan does not exceed the
Maximum Legal Rate of interest from time to time in effect and
applicable to the Loan for so long as the Loan is
outstanding.
ARTICLE
III
CHANGE IN CIRCUMSTANCES
3.1
Yield
Protection .
If, on or after the date of
this Agreement, the adoption of any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law), or any change in the
interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or
compliance by any Lender or applicable Lending Installation with
any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable
agency:
(i)
subjects any Lender or
any applicable Lending Installation to any Taxes, or changes the
basis of taxation of payments (other than with respect to Excluded
Taxes) to any Lender in respect of its LIBOR Loans, or
(ii)
imposes or increases or
deems applicable any reserve, assessment, insurance charge, special
deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest rate
applicable to Fixed Rate Loans), or
(iii)
imposes any other
condition the result of which is to increase the cost to any Lender
or any applicable Lending Installation of making, funding or
maintaining its Fixed Rate Loans, or reduces any amount receivable
by any Lender or any applicable Lending Installation in
connection with its Fixed Rate Loans, or requires any Lender or any
applicable Lending Installation to make any payment calculated by
reference to the amount of Fixed Rate Loans, by an amount deemed
material by such Lender as the case may be,
and the result of any of
the foregoing is to increase the cost to such Lender or applicable
Lending Installation, as the case may be, of making or maintaining
its Fixed Rate Loans or Commitment or to reduce the return received
by such Lender or applicable Lending Installation in connection
with such Fixed Rate Loans or Commitment, then, within 15 days of
demand by such Lender or the Borrower shall pay such Lender such
additional amount or amounts as will compensate such Lender for
such increased cost or reduction in amount received.
3.2
Changes in Capital
Adequacy Regulations . If a Lender in good faith
determines the amount of capital required or expected to be
maintained by such Lender, any Lending Installation of such Lender
or any corporation controlling such
Lender is increased as a result of a Change (as hereinafter
defined), then, within 15 days of demand by such Lender, the
Borrower shall pay such Lender the amount necessary to compensate
for any shortfall in the rate of return on the portion of such
increased capital which such Lender in good faith determines is
attributable to this Agreement, its outstanding credit exposure
hereunder or its obligation to make Loans hereunder (after taking
into account such Lender’s policies as to capital adequacy).
“ Change ” means (i) any change after
the date of this Agreement in the Risk-Based Capital Guidelines (as
hereinafter defined) or (ii) any adoption of or change in any
other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement which
affects the amount of capital required or expected to be maintained
by any Lender or any Lending Installation or any corporation
controlling any Lender. “ Risk-Based Capital
Guidelines ” means (i) the risk-based capital
guidelines in effect in the United States on the date of this
Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988
report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled “International Convergence of Capital
Measurements and Capital Standards,” including transition
rules, and any amendments to such regulations adopted prior to the
date of this Agreement.
3.3
Availability of
Types of Loans . If any Lender in good faith
determines that maintenance of any of its Fixed Rate Loans at a
suitable Lending Installation would violate any applicable law,
rule, regulation or directive, whether or not having the force of
law, the Administrative Agent shall, with written notice to
Borrower, suspend the availability of the affected Type of Loan and
require any Fixed Rate Loans of the affected Type to be repaid; or
if the Required Lenders in good faith
determine that (i) deposits of a type or maturity appropriate
to match fund Fixed Rate Loans are not available, the
Administrative Agent shall, with written notice to Borrower,
suspend the availability of the affected Type of Loan with respect
to any Fixed Rate Loans made after the date of any such
determination, or (ii) an interest rate applicable to a Type
of Loan does not accurately reflect the cost of making a Fixed Rate
Loan of such Type, then, if for any reason whatsoever the
provisions of Section 3.1 are inapplicable, the
Administrative Agent shall, with written notice to Borrower,
suspend the availability of the affected Type of Loan with respect
to any Fixed Rate Loans made after the date of any such
determination. If the Borrower is required to so repay a
Fixed Rate Loan, the Borrower may concurrently with such repayment
borrow from the Lenders, in the amount of such repayment, a Loan
bearing interest at the Alternate Base Rate.
3.4
Funding
Indemnification . If any payment of a ratable
Fixed Rate Loan occurs on a date which is not the last day of the
applicable Interest Period, whether because of acceleration,
prepayment or otherwise, or a ratable Fixed Rate Loan is not made
on the date specified by the Borrower for any reason other than
default by the Lenders or as a result of unavailability pursuant to
Section 3.3 , the Borrower will indemnify each Lender
for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost (incurred or expected to be
incurred) in liquidating or employing deposits acquired to fund or
maintain the ratable Fixed Rate Loan and shall pay all such losses or costs within fifteen (15)
days after written demand therefor.
3.5
Taxes
.
(i)
All payments by the
Borrower to or for the account of any Lender or the Administrative
Agent hereunder or under any Note shall be made free and clear of
and without deduction for any and all Taxes. If the Borrower
shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder to any Lender or the Administrative
Agent, (a) 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 3.5
) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no
such deductions been made, (b) the Borrower shall make such
deductions, (c) the Borrower shall pay the full amount deducted to
the relevant authority in accordance with applicable law and (d)
the Borrower shall furnish to the Administrative Agent the original
copy of a receipt evidencing payment thereof within 30 days after
such payment is made.
(ii)
In addition, the
Borrower hereby agrees to pay any present or future stamp or
documentary taxes and any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or
under any Note or from the execution or delivery of, or otherwise
with respect to, this Agreement or any Note ("Other
Taxes").
(iii)
The Borrower hereby
agrees to indemnify the Administrative Agent and each Lender for
the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable
under this Section 3 .5) paid by the Administrative Agent or
such Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. Payments
due under this indemnification shall be made within 30 days of the
date the Administrative Agent or such Lender makes demand therefor
pursuant to Section 3.6 .
(iv)
Each Lender that is not
incorporated under the laws of the United States of America or a
state thereof (each a "Non-U.S. Lender") agrees that it will, not
more than ten Business Days after the date of this Agreement, (i)
deliver to each of the Borrower and the Administrative Agent two
duly completed copies of United States Internal Revenue Service
Form W-8BEN or W-8ECI, certifying in either case that such Lender
is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes,
and (ii) deliver to each of the Borrower and the Administrative
Agent a United States Internal Revenue Form W-8 or W-9, as the case
may be, and certify that it is entitled to an exemption from United
States backup withholding tax. Each Non-U.S. Lender further
undertakes to deliver to each of the Borrower and the
Administrative Agent (x) renewals or additional copie
