“
Administrative
Agent ” means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any
successor administrative agent.
“
Administrative
Agent ’
s
Office ” means the Administrative Agent’s
address and, as appropriate, account as set forth on
Schedule 10.02
, or such other address or account as the Administrative Agent
may from time to time notify to the Borrower and the
Lenders.
“
Administrative
Questionnaire ” means an Administrative
Questionnaire in substantially the form of Exhibit
E-2 or any other form approved by the Administrative
Agent.
“
Affiliate
” means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with
the Person specified.
“
Agents
” means, collectively, the Administrative Agent and the
Syndication Agent.
“
Aggregate
Commitments ” means the total Commitment of all
the Lenders, as adjusted from time to time in accordance with
the terms of this Agreement. The Aggregate
Commitments as of the Closing Date shall be
$235,000,000.
“
Agreement
” means this Agreement, as it may be amended, restated,
supplemented or otherwise modified from time to
time.
“
Allocable
Share ” shall mean, with respect to any items
attributable to a Joint Venture Project or Joint Venture, the
amount or percentage (which amount or percentage shall be
subject to Administrative Agent’s satisfactory review)
of such items allocated to Borrower, or for which Borrower is
directly or indirectly responsible, pursuant to the terms of
the applicable joint venture agreement (or similar governing
agreement) copies of which shall be provided to Administrative
Agent upon request.
“
Annual
Period ” shall mean the most recently-ended
twelve (12) calendar month period for which the Borrower has
provided financial information pursuant to Section
6.01(a) .
“
Applicable
Percentage ” means with respect to any Lender at
any time, the percentage (carried out to the ninth decimal
place) of the Aggregate Commitments represented by such
Lender’s Commitment at such time. If the
commitment of each Lender to make Loans have been terminated
pursuant to Section 8.02
or if the Aggregate Commitments have expired, then the
Applicable Percentage of each Lender shall be determined based
on the Applicable Percentage of such Lender most recently in
effect, giving effect to any subsequent
assignments. The initial Applicable Percentage of
each Lender is set forth opposite the name of such Lender on
Schedule 2.01
or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable.
“
Applicable
Rate ” means, for any day, subject to adjustment
as provided in the penultimate paragraph of this definition,
the rate per annum set forth below opposite the applicable
Credit Rating then in effect, it being understood that the
Applicable Rate for (i) Eurodollar Rate Loans shall be the
rate set forth under column “Applicable Rate for
Eurodollar Rate Loans” and (ii) Base Rate Loans shall be
the percentage set forth under the column “Applicable
Rate for Base Rate Loans.”
|
Pricing
Level
|
Credit
Rating
|
Applicable
Rate for Eurodollar Rate Loans
|
Applicable
Rate for Base Rate Loans
|
|
I
|
BBB+/
Baa1 or higher
|
1.250%
|
0.00%
|
|
II
|
BBB/
Baa2
|
1.375%
|
0.00%
|
|
III
|
BBB-/Baa3
|
1.600%
|
0.00%
|
|
IV
|
Lower
than BBB-/Baa3
|
1.975%
|
0.00%
|
The
Applicable Rate shall be adjusted effective on the next
Business Day following any change in the Credit Rating and the
Borrower shall notify the Administrative Agent in writing
promptly after becoming aware of any change in the Credit
Rating. In addition, and without limiting the
foregoing, (a) if the respective Credit Ratings issued by the
S&P and Moody’s differ by one level, then the
Pricing Level for the lower of such Credit Ratings shall apply
(with the Credit Rating for Pricing Level I being the highest
and the Credit Rating for Pricing Level IV being the lowest);
(b) if there is a split in Credit Ratings of more than one
level, then the Pricing Level that is one level higher than
the Pricing Level of the lower Credit Rating shall apply; (c)
if the Parent and/or the Borrower (as applicable) has only one
Credit Rating, the Pricing Level that is one level lower than
that of such Credit Rating shall apply; (d) to the extent any
Credit Rating is provided (by S&P or Moody or both of
them) for both the Parent and the Borrower, if the respective
Credit Ratings for the Parent and the Borrower differ, the
Pricing Level for the Credit Ratings of such Person whose
Credit Ratings result in the higher Pricing Level (such
Pricing Levels based on the Credit Ratings for each of the
Parent and the Borrower to be independently determined in
accordance with subparagraphs (a) through (c), with Pricing
Level I being the lowest and Pricing Level IV being the
highest) shall apply; and (e) if neither the Parent nor the
Borrower has any Credit Rating, Pricing Level IV shall
apply.
“
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 one or more of Banc of America Securities LLC
and Wells Fargo Bank, National Association (as applicable), in
their capacities as joint lead arrangers and joint book
managers.
“
Assignee
Group ” means two or more Eligible 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 Eligible Assignee (with the
consent of any party whose consent is required by Section 10.06(b)
, and accepted by the Administrative Agent, in substantially
the form of Exhibit E
or any other form approved by the Administrative
Agent.
“
Audited
Financial Statements ” means the audited
consolidated balance sheet of the Parent
and its Subsidiaries for the fiscal year ended
December 31, 2007, and the related consolidated
statements of income or operations, shareholders’ equity
and cash flows for such fiscal year of the Parent and its
Subsidiaries, including the notes thereto.
“
Availability
Period ” means the period from and including the
Closing Date to the earliest of (a) the Maturity Date,
(b) the date of termination of the Aggregate Commitments
pursuant to Section 2.06
, and (c) the date of termination of the commitment of
each Lender to make Loans pursuant to Section 8.02
.
“
Bank
of America ” means Bank of America, N.A. and its
successors.
“
Base
Rate ” means for any day a fluctuating rate per
annum equal to the higher of (a) the Federal Funds Rate
plus 1/2 of 1% and (b) the rate of interest in effect for
such day as publicly announced from time to time by the
Administrative Agent as its “prime
rate.” The “prime rate” is a rate
set by the Administrative Agent based upon various factors
including the Administrative Agent’s costs and desired
return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any
change in such rate announced by the Administrative Agent
shall take effect at the opening of business on the day
specified in the public announcement of such
change.
“
Base
Rate Loan ” means a Loan that bears interest
based on the Base Rate.
“
Borrower
” has the meaning specified in the introductory
paragraph hereto.
“
Borrower
Materials ” has the meaning specified in
Section 6.02
.
“
Borrowing
” means a borrowing consisting of simultaneous Loans of
the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Lenders
pursuant to Section 2.01
.
“
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 Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such
day on which dealings in Dollar deposits are conducted by and
between banks in the London interbank eurodollar
market.
“
Calculation
Date ” shall mean each of (a) the last day of
each calendar quarter and (b) each other date on which any of
the financial covenants set forth in Section
7.11 are calculated.
“
Cash
Equivalents ” means (a) securities issued or
directly and fully guaranteed or insured by the United States
of America or any agency or instrumentality thereof (provided
that the full faith and credit of the United States of America
is pledged in support thereof) having maturities of not more
than twelve (12) months from the date of acquisition, (b) U.S.
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 two hundred seventy (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
(6) months of the date of acquisition, (d) repurchase
agreements 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 of America
in which any Loan Party 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).
“
Change in
Law ” means the occurrence, after the date of
this Agreement, of any of the following: (a) the adoption
or taking effect of any law, rule, regulation or treaty,
(b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof
by any Governmental Authority or (c) the making or
issuance of any request, guideline or directive (whether or
not having the force of law) by any Governmental
Authority.
“
Change of
Control ” shall mean a change resulting when (a)
Borrower or Parent becomes aware (by way of a report or any
other filing pursuant to Section 13(d) of the Exchange Act,
proxy, vote, written notice or otherwise) that any Person or
Group (other than a Permitted Holder) shall at any time
Beneficially Own more than 50% of the aggregate voting power
of all classes of Voting Stock of Parent; provided, however,
that the formation of a direct or indirect parent holding
company to Parent shall not be a change of control if (i)
Parent is a Subsidiary of such parent holding company, (ii)
all of the holders of the Voting Stock of Parent immediately
before such transaction become holders of Voting Stock of such
parent and (iii) no Person or Group (other than a Permitted
Holder) shall at any time Beneficially Own more than 50% of
the aggregate voting power of all classes of Voting Stock of
such parent; (b) the first day that a majority of the members
of the Board of Directors of Parent are not Continuing
Directors; or (c) Parent, or a wholly owned Subsidiary of
Parent, shall cease to be the general partner of the Borrower
or to own at least 51% of the outstanding Equity Interests of
the Borrower. As used herein (1)
“Beneficially Own” means “beneficially
own” as defined in Rule 13d-3 of the Securities Exchange
Act of 1934, as amended, or any successor provision thereto;
provided, however, that, for purposes of this definition, a
Person shall not be deemed to Beneficially Own securities
tendered pursuant to a tender or exchange offer made by or on
behalf of such Person or any of such Person’s Affiliate
until such tendered
securities
are accepted for purchase or exchange; (2) “Group”
means “group” for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended; (3) “Voting
Stock” of any Person shall mean capital stock of such Person
which ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, either at all
times or only so long as no senior class of securities has such
voting power by reason of any contingency; (4) “Permitted
Holder” shall mean any of: (i) Stanley K. Tanger,
Steven Tanger, any of their spouses (or former spouses), any of
their descendants, siblings or family members or any of their
spouses (or former spouses), or any of their estates (any such
persons or estates in his clause (i), a “Tanger
Member”), (ii) any trust primarily for the benefit of any
Tanger Member or Tanger Members, (iii) any entity the majority of
the owners of which are entities under clauses (i) through (ii);
(5) “Continuing Director” shall mean, as of any date of
determination, any member of the Board of Directors of Parent who
(i) is a member of the Board of Directors of Parent on the date of
this Agreement, or (ii) was nominated for election or was elected
to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of the Board of Directors at
the time of such nomination or election; and (6) in calculating any
beneficial ownership or percentage ownership of Voting Stock units
of the Parent held by any Permitted Holder that are exchangeable
for Voting Stock shall be deemed to be outstanding Voting Stock of
Parent as if such units had been exchanged for Voting
Stock.
“
Closing
Date ” means the first date all the conditions
precedent in Section 4.01
are satisfied or waived in accordance with Section 10.01
.
“
Code
” means the Internal Revenue Code of 1986, as amended,
and any successor statute thereto, as interpreted by the rules
and regulations issued thereunder, in each case as in effect
from time to time. References to sections of the
Code shall be construed also to refer to any successor
sections.
“
Commitment
” means, as to each Lender, its obligation to make Loans
to the Borrower pursuant to Section 2.01
in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such
Lender’s name on Schedule 2.01
or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount
may be adjusted from time to time in accordance with this
Agreement.
“
Consolidated
Parties ” means a collective reference to the
Parent and its consolidated Subsidiaries; and
“Consolidated Party” means any one of
them.
“
Contractual
Obligation ” means, as to any Person, any
material provision of any security issued by such Person or of
any agreement, instrument or other undertaking to which such
Person is a party or by which it or any of its property is
bound.
“
Control
” means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. “
Controlling
” and “ Controlled
” have meanings correlative thereto.
“
Credit
Rating ” means, as of any date of determination,
the rating as determined
by either S&P or Moody’s (collectively, the “
Credit
Ratings ”) of the Parent’s and/or the
Borrower’s (as applicable) non-credit-enhanced, senior
unsecured long-term debt.
“
Debtor Relief
Laws ” means the Bankruptcy Code of the United
States, and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United
States or other applicable jurisdictions from time to time in
effect and affecting the rights of creditors
generally.
“
Default
” means any event or condition that constitutes an Event
of Default or that, with the giving of any notice, the passage
of time, or both, would be an Event of Default.
“
Default
Rate ” means when used with respect to
Obligations, an interest rate equal to the interest rate
(including any Applicable Rate) otherwise applicable to such
Loan plus four percent (4.0%) per annum.
“
Defaulting
Lender ” means any Lender that (a) has
failed to fund any portion of the Loans required to be funded
by it hereunder within one Business Day of the date required
to be funded by it hereunder, (b) has otherwise failed to
pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a
good faith dispute, or (c) has been deemed insolvent or
become the subject of a bankruptcy or insolvency
proceeding.
“
Disposition
” or “ Dispose
” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of
any property by any Person, including any sale, assignment,
transfer or other disposal, with or without recourse, of any
notes or accounts receivable or any rights and claims
associated therewith.
“
Dollar
” and “ $ ”
mean lawful money of the United States.
“
Domestic
Subsidiary ” means, with respect to any Person,
any Subsidiary of such Person which is incorporated or
organized under the laws of any State of the United States or
the District of Columbia.
“
EBITDA
” shall mean, with respect to any Person, as of any
Calculation Date, (i) Borrower’s earnings before
interest, taxes, depreciation, and amortization, all
determined in accordance with GAAP consistently applied
(excluding extraordinary gains or losses and excluding
earnings attributable to Joint Ventures or Joint Venture
Projects), plus (ii) Borrower’s Allocable Share of
earnings before interest, taxes, depreciation, and
amortization for Joint Ventures and Joint Venture Projects,
all determined in accordance with GAAP consistently applied
(excluding extraordinary gains or losses).
“
Eligible
Assignee ” means (a) a Lender; (b) an
Affiliate of a Lender; (c) an Approved Fund; and
(d) any other Person (other than a natural person)
approved by (i) the Administrative Agent and
(ii) unless an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed); provided
that notwithstanding the foregoing, “Eligible
Assignee” shall not include the Borrower or any of the
Borrower’s Affiliates or Subsidiaries.
“
Environmental
Laws ” means any and all Federal, state, local,
and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions
relating to pollution and the protection of the environment or
the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
“
Environmental
Liability ” means any liability, contingent or
otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities),
of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from
or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials,
(c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
“
Equity
Interests ” shall mean, with respect to any
Person, all of the shares of capital stock of (or other
ownership or profit interests in) such Person, all of the
warrants, options or other rights for the purchase or
acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of
the securities convertible into or exchangeable for shares of
capital stock of (or other ownership or profit interests in)
such Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other
interests), and all of the other ownership or profit interests
in such Person (including partnership, member or trust
interests therein), whether voting or nonvoting, and whether
or not such shares, warrants, options, rights or other
interests are outstanding on any date of
determination.
“
Equity
Issuance ” means any issuance by the Borrower to
any person or entity which is not a Loan Party of (a) shares
of its Equity Interests, (b) any shares of its Equity
Interests pursuant to the exercise of options or warrants or
(c) any shares of its Equity Interests pursuant to the
conversion of any debt securities to equity.
“
ERISA
” means the Employee Retirement Income Security Act of
1974.
“
ERISA
Affiliate ” means any trade or business (whether
or not incorporated) under common control with the 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 the
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 the 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 constitutes 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 for PBGC
premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.
“
Eurodollar Base
Rate ” means, for such Interest Period, the rate
per annum equal to the British Bankers Association LIBOR Rate
(“ BBA LIBOR
”), as published by Reuters (or other commercially
available source providing quotations of BBA LIBOR as
designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, for Dollar
deposits (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest
Period. If such rate is not available at such time
for any reason, then the “Eurodollar Base Rate”
for such Interest Period shall be the rate per annum
determined by the Administrative Agent to be the rate at which
deposits in Dollars for delivery on the first day of such
Interest Period in same day funds in the approximate amount of
the Eurodollar Rate Loan being made, continued or converted by
the Administrative Agent and with a term equivalent to such
Interest Period would be offered by the Administrative
Agent’s London Branch to major banks in the London
interbank eurodollar market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
“
Eurodollar
Rate ” means for any Interest Period with respect
to a Eurodollar Rate Loan, a rate per annum determined by the
Administrative Agent pursuant to the following
formula:
|
Eurodollar
Rate =
|
Eurodollar
Base
Rate
1.00 – Eurodollar Reserve Percentage
|
“
Eurodollar Rate
Loan ” means a Loan that bears interest at a rate
based on the Eurodollar Rate.
“
Eurodollar
Reserve Percentage ” means, for any day during
any Interest Period, the reserve percentage (expressed as a
decimal, carried out to five decimal places) in effect on such
day, whether or not applicable to any Lender, under
regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”). The
Eurodollar Rate for each outstanding Eurodollar Rate Loan
shall be adjusted automatically as of the effective date of
any change in the Eurodollar Reserve Percentage.
“
Event of
Default ” has the meaning specified in
Section 8.01
.
“
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 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, (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located,
(c)
any
backup withholding tax that is required by the Code to be withheld
from amounts payable to a Lender that has failed to comply with
clause (A) of Section
3.01(e)(ii) , and (d) in the case of a Foreign Lender (other
than an assignee pursuant to a request by the Borrower under
Section
10.13 ), any United States withholding tax that (i) is
required to be imposed on amounts payable to such Foreign Lender
pursuant to the Laws in force at the time such Foreign Lender
becomes a party hereto (or designates a new Lending Office) or (ii)
is attributable to such Foreign Lender’s failure or inability
(other than as a result of a Change in Law) to comply with clause
(B) of Section
3.01(e)(ii) , 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 Borrower with respect to such withholding tax
pursuant to Section
3.01(a)(ii) or (iii)
.
“
Fair
Market Minimum Net Worth ” shall mean, as of any
Calculation Date, Borrower’s Total Adjusted Asset Value
less Total Liabilities.
“
Federal Funds
Rate ” means, for any day, the rate per annum
equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if
no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average
rate (rounded upward, if necessary, to a whole multiple of
1/100 of 1%) charged to the Administrative Agent on such day
on such transactions as determined by the Administrative
Agent.
“
Fee
Letter ” means the letter agreement, dated April
17, 2008, among the Borrower, the Parent, the Administrative
Agent and the Arranger.
“
Fixed
Charges ” shall mean, as of any Calculation Date,
an amount equal to (a) all principal and interest payments due
on all obligations of the Borrower for the most recently-ended
Annual Period, exclusive of balloon maturity payments, plus
(b) Borrower’s Allocable Share of the sum of all
principal and interest payments due on all loan obligations of
any Joint Venture or otherwise attributable to any Joint
Venture Project for such Annual Period, exclusive of balloon
maturity payments, plus (c) all Preferred Dividends, if any,
payable with respect to such Annual Period, plus (d) a capital
expenditure allowance of $0.15 times gross leaseable area of
owned projects plus a capital expenditure allowance of $0.15
times gross leaseable area of Joint Venture Projects
multiplied by the Borrower’s Allocable Share of such
Joint Venture Projects (excluding Projects Under Development
and New Developments).
“
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.
“
Foreign
Subsidiary ” means any Subsidiary of a Person
that is not a Domestic Subsidiary of such Person.
“
FRB
” means the Board of Governors of the Federal Reserve
System of the United States.
“
Fully
Satisfied ” means, with respect to the
Obligations as of any date, that, as of such date,
(a) all principal of and interest accrued to such date
which constitute Obligations shall have been irrevocably paid
in full in cash, and (b) all fees, expenses and other
amounts then due and payable which constitute Obligations
shall have been irrevocably paid in cash.
“
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 its business.
“
Funds From
Operations ” shall be as defined by NAREIT as of
the first day of a fiscal year.
“
GAAP
” means generally accepted accounting principles in the
United States set forth in the opinions and pronouncements of
the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the
accounting profession in the United States, that are
applicable to the circumstances as of the date of
determination, consistently applied.
“
Governmental
Authority ” means the government of the United
States or any other nation, or of any political subdivision
thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies
such as the European Union or the European Central
Bank).
“
Granting
Lender ” has the meaning specified in Section 10.06(h)
.
“
Guarantee
” shall mean, as to any Person, (a) any obligation,
contingent or otherwise, of such Person guaranteeing or having
the economic effect of guaranteeing any Indebtedness 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 Indebtedness
or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee
in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other
obligation, (iii) to maintain working capital, equity capital
or any other financial statement condition or liquidity or
level of income or cash flow of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring
in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance
thereof or to protect such obligee against loss in respect
thereof (in whole or in part), or (b) any Lien on any assets
of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent
or otherwise, of any holder of such Indebtedness to obtain any
such Lien). The amount of any Guarantee 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 Guarantee is made or, if not stated
or determinable, the maximum reasonably anticipated liability
in respect thereof as determined by the guaranteeing Person in
good faith. The term “Guarantee” as a
verb has a corresponding meaning.
“
Guarantors
” means, collectively, as of any date of determination,
the Parent and each other Person that has been required,
pursuant to the terms of this Agreement and the Guaranty, to
execute a counterpart of the Guaranty, in each case to the
extent such Person has not been released from its obligations
under the Guaranty pursuant to the terms of the Guaranty and
this Agreement.
“
Guaranty
” means the Guaranty dated as of the date hereof made by
the Parent and each of the Domestic Subsidiaries of the
Borrower existing as of the date hereof (except the
Non-Guarantor Subsidiaries) in favor of the Administrative
Agent and the Lenders, substantially in the form of
Exhibit F
, as the same may be amended, restated, supplemented or
otherwise modified from time to time and as joined from time
to time by such Persons that either (a) become, following the
date hereof, a Domestic Subsidiary of the Borrower that is not
a Non-Guarantor Subsidiary or (b) cease to qualify as a
Non-Guarantor Subsidiary following the date
hereof.
“
Hazardous
Materials ” means all explosive or radioactive
substances or wastes and all hazardous or toxic substances,
wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical
wastes and all other substances or wastes of any nature in
quantities regulated pursuant to any Environmental
Law.
“
Indebtedness
” means all obligations, contingent and otherwise in
respect of (a) all debt and similar monetary obligations,
whether direct or indirect and whether evidenced by one or
more notes, bonds, agreements or other evidences of
indebtedness; (b) all liabilities secured by any mortgage,
pledge, security interest, lien, charge, or other encumbrance
existing on property owned or acquired subject thereto,
whether or not the liability secured thereby shall have been
assumed; (c) all liabilities under capitalized leases; and (d)
all guarantees, endorsements and other contingent obligations
whether direct or indirect in respect of indebtedness of
others, including the obligations to reimburse the issuer in
respect of any letters of credit.
“
Indemnified
Taxes ” means Taxes other than Excluded
Taxes.
“
Indemnitees
” has the meaning specified in Section 10.04(b)
.
“
Information
” has the meaning specified in Section 10.07
.
“
Intangible
Assets ” means assets that are considered to be
intangible assets under GAAP, including customer lists,
goodwill, computer software, copyrights, trade names,
trademarks, patents, franchises, licenses, unamortized
deferred charges, unamortized debt discount and capitalized
research and development costs.
“
Interest Payment
Date ” means, (a) as to any Loan other than
a Base Rate Loan, the last day of each Interest Period
applicable to such Loan and the Maturity Date; provided
, however ,
that if any Interest Period for a Eurodollar Rate Loan exceeds
three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also
be Interest Payment Dates; and (b) as to any Base Rate
Loan, the fifteenth (15 th
) calendar day of each calendar month and the Maturity Date;
provided
, if such fifteenth (15 th
) calendar day or the Maturity Date is not a Business Day, the
applicable Interest Payment Date shall be the next succeeding
Business Day.
“
Interest
Period ” means, as to each Eurodollar Rate Loan,
the period commencing on the date such Eurodollar Rate Loan is
disbursed or converted to or continued as a Eurodollar Rate
Loan and ending on the date one (1), two (2), three (3), six
(6), nine (9) or twelve (12) months thereafter, as selected by
the Borrower in its Loan Notice; provided
that:
(i) any
Interest Period that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end
on the next preceding Business Day;
(ii) any
Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest
Period;
(iii) no
Interest Period shall extend beyond the Maturity Date;
and
(iv) a
period of twelve (12) months shall be deemed, as used in
connection with the term “Interest Period”, to be
equal to 364 days and any period in excess of six (6) months
shall only be available to the Borrower to the extent
available to each Lender.
“
Internal Control
Event ” means a material weakness in, or fraud
that involves management or other employees who have a
significant role in, the Parent’s or the
Borrower’s internal control over financial reporting, in
each case as described in the Securities Laws.
“
Investment
” means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of
(a) the purchase or other acquisition of capital stock or
other securities of another Person, (b) a loan, advance or
capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or equity
participation or interest in, another Person, including any
partnership or joint venture interest in such other Person and
any arrangement pursuant to which the investor Guarantees
Indebtedness of such other Person, or (c) the purchase or
other acquisition (in one transaction or a series of
transactions) of assets of another Person that constitute a
business unit.
“
IP
Rights ” has the meaning specified in
Section 5.17
.
“
IRS
” means the United States Internal Revenue
Service.
“
Joint
Venture ” shall mean any Person in which the
Borrower owns an Equity Interest, but that is not a
Wholly-Owned Subsidiary of the Borrower.
“
Joint Venture
Projects ” shall mean all Projects with respect
to which Borrower holds an interest that is less than
100%.
“
Laws
” means, collectively, all international, foreign,
Federal, state and local statutes, treaties, rules,
guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or
administration thereof, and all applicable administrative
orders, directed duties, requests, licenses, authorizations
and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of
law.
“
Lender
” has the meaning specified in the introductory
paragraph hereto.
“
Lending
Office ” means, as to any Lender, the office or
offices of such Lender described as such in such
Lender’s Administrative Questionnaire, or such other
office or offices as a Lender may from time to time notify the
Borrower and the Administrative Agent.
“
Lien
” shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory
or other), charge, or preference, priority or other security
interest or preferential arrangement in the nature of a
security interest of any kind or nature whatsoever (including
any conditional sale or other title retention agreement, any
easement, right of way or other encumbrance on title to real
property, and any financing lease having substantially the
same economic effect as any of the foregoing).
“
Loan
” has the meaning specified in Section 2.01
.
“
Loan
Documents ” means this Agreement, each Note, the
Fee Letter and the Guaranty.
“
Loan
Notice ” means a notice of (a) a Borrowing,
(b) a conversion of Loans from one Type to the other, or
(c) a continuation of Eurodollar Rate Loans, pursuant to
Section 2.02(a)
, which, if in writing, shall be substantially in the form of
Exhibit A
.
“
Loan
Parties ” means, collectively, the Borrower and
each Guarantor.
“
Material Adverse
Effect ” means (a) a material adverse change
in, or a material adverse effect upon, the operations,
business, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of the
Consolidated Parties, taken as a whole; (b) a material
impairment of the ability of any Loan Party to perform its
obligations under any Loan Document to which it is a party; or
(c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan
Party of any Loan Document to which it is a
party.
“
Maturity
Date ” means June 10, 2011.
“
Moody’s
” means Moody’s Investors Service, Inc., and any
successor thereto.
“
Mortgage
” shall mean a mortgage, deed of trust, deed to secure
debt or similar security instrument made or to be made by any
entity or person owning an interest in real estate granting a
lien on such interest in real estate as security for the
payment of Indebtedness.
“
Multiemployer
Plan ” means any employee benefit plan of the
type described in Section 4001(a)(3) of ERISA, to which
the Borrower or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five plan years,
has made or been obligated to make contributions.
“
NAREIT
” means the National Association of Real Estate
Investment Trusts.
“
Negative
Pledge ” shall mean 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.
“
New
Development ” shall mean, as of any Calculation
Date, (a) any Project which was a Project Under Development
during the most recently-ended Annual Period as to which
conditions (a), (b) and (c) as provided for in the definition
of Projects Under Development have been satisfied, and (b) any
Project acquired during the most recently-ended Annual Period,
such Project(s) being a New Development only for the subject
twelve (12) month reporting period.
“
NGS
Excess Cash Flow ” means an amount equal to all
net operating income of a Non-Guarantor Subsidiary minus all
debt service payments of such Non-Guarantor Subsidiary minus
all amounts required to fund reserves of such Non-Guarantor
Subsidiary.
“ Non-Guarantor
Subsidiaries ” means, as of any date of
determination, a collective reference to:
|
(a)
|
any
Subsidiary of any Loan Party (i) which holds no assets contributing
to Adjusted Unencumbered Asset Value and is formed for or converted
to (in accordance with the terms and conditions set forth herein)
the specific purpose of holding title to assets which are
collateral for indebtedness owing by such Subsidiary and (ii) which
is (or, immediately following its release as a Loan Party
hereunder, shall be) expressly prohibited in writing from
guaranteeing indebtedness of any other person or entity pursuant to
(A) a provision in any document, instrument or agreement evidencing
such indebtedness of such Subsidiary or (B) a provision of such
Subsidiary's organizational documents, in each case, which
provision was included in such organizational document or such
other document, instrument or agreement as an express condition to
the extension of such indebtedness required by the third party
creditor providing the subject financing; provided, that a
Subsidiary meeting the above requirements shall only remain a
“Non-Guarantor Subsidiary” for so long as (1) each of
the above requirements are satisfied, (2) such Subsidiary does not
guarantee any other indebtedness and (3) the indebtedness with
respect to which the restrictions noted in clause (ii) are imposed
remains outstanding;
|
|
(b)
|
any
Subsidiary of any Loan Party (i) which becomes a Subsidiary of any
Loan Party following the Closing Date, (ii) which is not a
Wholly-Owned Subsidiary of the Loan Party, and (iii) with respect
to which the Loan Party, as applicable, does not have sufficient
voting power to cause such Subsidiary to execute the Guaranty
pursuant to the terms of the Loan Documents or, notwithstanding
such voting power, the interests of such non-Loan Party holders
have material economic value in the reasonable judgment of the
Borrower that would be impaired by the execution of the Guaranty;
and
|
|
(c)
|
any
other Subsidiary of a Loan Party to the extent (i) such Subsidiary
holds no assets; or (ii) such Subsidiary holds assets which
contribute less than $350,000 to the calculation of Adjusted
Unencumbered Asset Value.
|
“Non-Guarantor
Subsidiary” means any one of such entities.
“
Note
” means a promissory note made by the Borrower in favor
of a Lender evidencing Loans made by such Lender,
substantially in the form of Exhibit C
.
“
Obligations
” means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising
under any Loan Document or otherwise with respect to any Loan,
whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including (i) interest and
fees that accrue under the Loan Documents after the
commencement by or against any Loan Party or any Affiliate
thereof of any proceeding under any Debtor Relief Laws naming
such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such
proceeding and (ii) any Swap Contract entered into in
connection with the Loans by any Loan Party with respect to
which a Lender or any Affiliate of a Lender is a
party.
“
Organization
Documents ” means, (a) with respect to any
corporation, the certificate or articles of incorporation and
the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the
certificate or articles of formation or organization and
operating agreement; and (c) with respect to any
partnership, joint venture, trust or other form of business
entity, the partnership, joint venture or other applicable
agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in
connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its
formation or organization and, if applicable, any certificate
or articles of formation or organization of such
entity.
“
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.
“
Outstanding
Amount ” means on any date, the aggregate
outstanding principal amount thereof after giving effect to
any borrowings and prepayments or repayments of Loans
occurring on such date.
“
Parent
” means Tanger Factory Outlet Centers, Inc., a North
Carolina corporation, together with its successors and
permitted assigns.
“
Participant
” has the meaning specified in Section 10.06(d)
.
“
PBGC
” means the Pension Benefit Guaranty
Corporation.
“
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 the
Borrower or any ERISA Affiliate or to which the Borrower or
any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other
plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding
five plan years.
“
Person
” means any natural person, corporation, limited
liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other
entity.
“
Plan
” means any “employee benefit plan” (as such
term is defined in Section 3(3) of ERISA) established by
the Borrower 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
” has the meaning specified in Section 6.02
.
“
Preferred
Dividends ” shall mean, with respect to any
Person, dividends or other distributions which are payable to
holders of any Equity Interests in such Person which entitle
the holders of such Equity Interests to be paid on a preferred
basis prior to dividends or other distributions to the holders
of other types of Equity Interests in such
Person.
“
Pro
Forma Compliance Certificate ” means a
certificate of an officer of the Borrower delivered to the
Administrative Agent (in connection with a Disposition or
otherwise) and containing reasonably detailed calculations,
upon giving effect to the applicable transaction on a pro
forma basis, of the financial covenants set forth in
Section
7.11 .
“
Projects
” shall mean any and all parcels of real property owned
by the Borrower or with respect to which the Borrower owns an
interest (whether directly or indirectly) on which are located
improvements with a gross leasable area in excess of 50,000
sq. ft. or with respect to which construction and development
of such improvements are under development.
“
Projects Under
Development ” means, as of any Calculation Date,
any Project under development by the Borrower or any
Wholly-Owned Subsidiary of the Borrower (a) classified as
construction in progress on the Borrower’s quarterly
financial statements; or (b) as to which a certificate of
occupancy has not been issued; or (c) as to which a minimum of
70% of total gross leasable area has not been leased and
occupied by paying tenants.
“
Properties
” means, as of any date of determination, all interests
in real property (direct or indirect), together with all
improvements thereon, owned by any Loan Party; and “
Property
” means any one of them.
“
Register
” has the meaning specified in Section 10.06(c)
.
“
Registered
Public Accounting Firm ” has the meaning
specified in the Securities Laws and shall be independent of
the Borrower as prescribed by the Securities
Laws.
“
REIT
” means a Person qualifying for treatment as a
“real estate investment trust” under the
Code.
“
Related
Parties ” means, with respect to any Person, such
Person’s Affiliates and the partners, directors,
officers, employees, agents 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.
“
Request for
Borrowing ” means, with respect to a Borrowing,
conversion or continuation of Loans, a Loan
Notice.
“
Required
Lenders ” means, as of any date of determination,
Lenders having at least sixty-six and two-thirds of one
percent (66-2/3%) of the Aggregate Commitments or, if the
commitment of each Lender to make Loans have been terminated
pursuant to Section 8.02
, Lenders holding in the aggregate at least sixty-six
and two-thirds of one percent (66-2/3%) of the Total
Outstandings; provided
that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of
Required Lenders.
“
Responsible
Officer ” means the chief executive officer,
president, chief operating officer, chief financial officer,
general counsel, treasurer, secretary or assistant secretary
of a Loan Party, or any other individual who may from time to
time be authorized by the Board of Directors of the Borrower
to serve as a “Responsible Officer” for the
purposes hereof. Any document delivered hereunder
that is signed by a Responsible Officer of a Loan Party shall
be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the
part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan
Party.
“
Restricted
Payment ” means (a) any dividend or other
distribution, direct or indirect, on account of any shares of
any class of the Equity Interests of any Consolidated Party,
now or hereafter outstanding (including any payment of
dividends by the Borrower necessary to retain its status as a
REIT or to meet the distribution requirements of Section 857
of the Internal Revenue Code), (b) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition
for value, direct or indirect, of any shares of any class of
the Equity Interests of any Consolidated Party, now or
hereafter outstanding, and (c) any payment made to retire, or
to obtain the surrender of, any outstanding warrants, options
or other rights to acquire shares of any class of the Equity
Interests of any Consolidated Party, now or hereafter
outstanding.
“
S&P
” means Standard & Poor’s Ratings Services, a
division of The McGraw-Hill Companies, Inc., and any successor
thereto.
“
Sarbanes-Oxley
” means the Sarbanes-Oxley Act of 2002.
“
SEC
” means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal
functions.
“
Secured
Indebtedness ” shall mean an amount equal to (a)
any Indebtedness of the Borrower secured by any encumbrance or
by any security interest, lien, privilege, or charge (other
than liens for real estate taxes that are not yet due and
payable) on any real or personal property, plus (b)
Borrower’s Allocable Share of any Indebtedness of any
Joint Venture Projects or any Joint Ventures secured by any
encumbrance or by any security interest, lien, privilege, or
charge (other than liens for real estate taxes that are not
yet due and payable) on any real or personal property
(including the Equity Interests in such Joint
Ventures).
“
Securities
Holdings ” shall mean common stock, preferred
stock, other capital stock, beneficial interest in trust,
membership interest in limited liability companies and other
Equity Interests in entities (other than consolidated and
unconsolidated subsidiaries) such that the aggregate basis of
such interests is calculated on the basis of lower of cost or
market value.
“
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.
“
SPC
” has the meaning specified in Section 10.06(h)
.
“
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 securities or other
interests having ordinary voting power for the election 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. Unless otherwise specified, all
references herein to a “Subsidiary” or to
“Subsidiaries” shall refer to a Subsidiary or
Subsidiaries of the Borrower.
“
Swap
Contract ” shall mean (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 ” shall mean, 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).
“
Syndication
Agent ” means Wells Fargo Bank, N.A, in its
capacity as syndication agent, or any successor syndication
agent.
“
Taxes
” means all present or future taxes, levies, imposts,
duties, deductions, withholdings (including backup
withholding), assessments, fees or other charges imposed by
any Governmental Authority, including any interest, additions
to tax or penalties applicable thereto.
“
Threshold
Amount ” means
$10,000,000.00.
“
Total Adjusted
Asset Value ” shall mean, as of any Calculation
Date:
(a) the
sum of:
(i) unrestricted
cash and cash equivalents held by the Borrower (excluding any
tenant deposits); plus
(ii) cost
value of Projects Under Development (including only costs
incurred as of any Calculation Date and not including the cost
value of Projects Under Development which constitute Joint
Venture Projects); plus
(iii) cost
value of New Developments (including only costs incurred as of
any Calculation Date and not including the cost value of New
Developments which constitute Joint Venture Projects);
plus
(iv) cost
value of Borrower’s investment in Joint Venture Projects
which comply with the definition of Projects Under Development
and New Development (including only costs incurred as of any
Calculation Date), plus
(b) an
amount equal to
(i) (A)
an amount equal to the EBITDA for the most recently-ended
Annual Period (as adjusted by the Borrower (1) to take into
account the EBITDA of any dispositions during such Annual
Period of projects owned by the Borrower and (2) to deduct
EBITDA derived from Projects Under Development or New
Developments, each of which adjustments must be approved by
Administrative Agent in its reasonable discretion), minus (B)
the sum of (1) a capital expenditure allowance of $0.15 times
owned gross leaseable area of Project wholly owned by the
Borrower or any wholly owned Subsidiary thereof, plus (2) a
capital expenditure allowance of $0.15 times gross leasable
area of Joint Venture Projects multiplied by the
Borrower’s Allocable Share of such Joint Venture
Projects (excluding Projects Under Development and New
Developments); divided by
(ii) 0.08;
provided , that for purposes of calculating Total Adjusted
Asset Value, the total amount attributable to assets or EBITDA
generated by or attributable to Joint Venture Projects and/or Joint
Ventures shall be limited to 25% of Total Adjusted Asset Value and,
to the extent the amount attributable to assets or EBITDA generated
by Joint Venture Projects and/or Joint Ventures exceeds such
threshold, such amount shall be reduced, in the overall calculation
of Total Adjusted Asset Value, such that it equals 25% of the Total
Adjusted Asset Value.
“
Total
Liabilities ” shall mean, as of any Calculation
Date, the sum of (a) all liabilities of the Borrower and its
consolidated Subsidiaries, as calculated in accordance with
GAAP (including, in any case and without limitation, deferred
taxes) less (i) intercompany items and (ii) liabilities
attributable to Joint Venture Projects or Joint Ventures plus
(b) Borrower’s Allocable Share of Total Liabilities
attributable to Joint Venture Projects or Joint
Ventures.
“
Total
Outstanding Unsecured Indebtedness ” shall mean,
as of any Calculation Date, an amount equal to (a) all
unsecured Indebtedness of the Borrower, plus (b) without
duplication Borrower’s Allocable Share of any unsecured
Indebtedness of any Joint Venture and/or Joint Venture
Projects outstanding as of such Calculation Date, other than
trade indebtedness incurred in the ordinary course of
business.
“
Total
Outstandings ” means the aggregate Outstanding
Amount of all Loans.
“
Total Variable
Rate Indebtedness ” shall mean, as of any
Calculation Date, all Indebtedness of the Borrower as to which
interest accrues or is payable at a variable interest rate,
exclusive of any such Indebtedness as to which the Borrower
has obtained a fixed rate interest hedge (including any
interest rate swap, cap or collar agreement or any similar
arrangement that has the effect of protecting the Borrower
against fluctuations in such variable interest
rate).
“
Type
” means, with respect to a Loan, its character as a Base
Rate Loan or a Eurodollar Rate Loan.
“ Unencumbered
Assets ” shall mean real property that is
wholly-owned by the Borrower or by a Wholly-Owned Subsidiary
of the Borrower that is not subject to a mortgage lien or to
any agreement with any other lender that prohibits the
creation of a Lien on that specific property.
“
Unencumbered
EBITDA ” shall mean, as of any Calculation Date,
EBITDA of the Borrower for the most recently-ended Annual
Period that is directly attributable to Unencumbered
Assets.
“
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.
“
United
States ” and “ U.S.
” mean the United States of America.
“
Voting
Stock ” means, with respect to any Person, Equity
Interests issued by such Person the holders of which are
ordinarily, in the absence of contingencies, entitled to vote
for the election of directors (or persons performing similar
functions) of such Person, even though the right so to vote
has been suspended by the happening of such a
contingency.
“
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, limited
liability company, 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.
1.02
Other
Interpretive Provisions .
With
reference to this Agreement and each other Loan Document,
unless otherwise specified herein or in such other Loan
Document:
(a) The
definitions of terms herein shall apply equally to the
singular and plural forms of the terms
defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine
and neuter forms. The words “ include
,” “ includes
” and “ including
” shall be deemed to be followed by the phrase
“without limitation.” The word “
will
” shall be construed to have the same meaning and effect
as the word “ shall
.” Unless the context requires otherwise,
(i) any definition of or reference to any agreement,
instrument or other document (including any Organization
Document) shall be construed as referring to such agreement,
instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications
set forth herein or in any other Loan Document), (ii) any
reference herein to any Person shall be construed to include
such Person’s successors and assigns, (iii) the
words “ herein
,” “ hereof
” and “ hereunder
,” and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in
its entirety and not to any particular provision thereof,
(iv) all references in a Loan Document to Articles,
Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references
appear, (v) any reference to any law shall include all
statutory and regulatory provisions consolidating, amending,
replacing or interpreting such law and any reference to any
law or regulation shall, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented
from time to time, and (vi) the words “ asset
” and “ property
” shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract
rights.
(b) 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 .”
(c) Section headings
herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan
Document.
1.03
Accounting
Terms .
(a)
Generally
. All accounting terms not specifically or
completely defined herein shall be construed in conformity
with, and all financial data (including financial ratios and
other financial calculations) required to be submitted
pursuant to this Agreement shall be prepared in conformity
with, GAAP applied on a consistent basis, as in effect from
time to time, applied in a manner consistent with that used in
preparing the Audited Financial Statements, except as
otherwise specifically prescribed herein.
(b)
Changes in
GAAP . The parties hereto acknowledge and
agree that if at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth
in any Loan Document, and either the Borrower or the Required
Lenders shall so request, the Administrative Agent, the
Lenders and the Borrower shall negotiate in good faith to
amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to
the approval of the Required Lenders); provided
that ,
until so amended, (i) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to
the Administrative Agent and the Lenders financial statements
and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before
and after giving effect to such change in GAAP.
(c)
Accounting for
Sales of Real Estate . For purposes of
clarification and without limiting the foregoing general
requirements of this Section
1.03 or otherwise set forth in this Agreement, all real
estate transactions shall, for the duration of this Agreement,
be accounted for using standard GAAP accounting (including
application, as applicable, of the financing, profit sharing
or other alternative accounting methods prescribed by
paragraphs 25 to 29 of Financial Accounting Standards Board
Statement of Financial Accounting Standards No. 66,
“Accounting for Sales of Real Estate,” issued
October, 1982).
(d)
Consolidation of
Variable Interest Entities . All references
herein to consolidated financial statements of the Borrower
and its Subsidiaries or to the determination of any amount for
the Borrower and its Subsidiaries on a consolidated basis or
any similar reference shall, in each case, be deemed to
include each variable interest entity that the Borrower is
required to consolidate pursuant to FASB Interpretation No. 46
– Consolidation of Variable Interest Entities: an
interpretation of ARB No. 51 (January 2003) as if such
variable interest entity were a Subsidiary as defined
herein.
1.04
Rounding
.
Any
financial ratios required to be maintained by the Borrower
pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the
result to one place more than the number of places by which
such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no
nearest number).
1.05
Times of
Day .
Unless
otherwise specified, all references herein to times of day
shall be references to Eastern Time (daylight or standard, as
applicable).
ARTICLE II
THE COMMITMENTS AND BORROWINGS
2.01
Loans
.
Subject
to the terms and conditions set forth herein, each Lender
severally agrees to make term loans (each such loan, a “
Loan
” and, collectively, the “ Loans
”) to the Borrower from time to time, on any Business
Day during the Availability Period, in an amount not to
exceed, in the aggregate (and notwithstanding any amount of
such Loans repaid during the term hereof), the amount of such
Lender’s Commitment. The Loans and
Commitments hereunder are not revolving, and once any portion
of the Loans is repaid, such Loans may not be
reborrowed. Loans may, from time to time, be Base
Rate Loans or Eurodollar Rate Loans, as further provided
herein.
2.02
Borrowings,
Conversions and Continuations of Loans .
(a) Each
Borrowing, each conversion of Loans from one Type to the
other, and each continuation of Eurodollar Rate Loans shall be
made upon the Borrower’s irrevocable notice to the
Administrative Agent, which may be given by
telephone. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m.
(i) three (3) Business Days prior to the requested date
of any Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Loans, and (ii) on the requested date
of any Borrowing of Base Rate Loans; provided
, however ,
that if the Borrower wishes to request Eurodollar Rate Loans
having an Interest Period other than
one,
two, three or six months in duration as provided in the definition
of “Interest Period”, the applicable notice must be
received by the Administrative Agent not later than 11:00 a.m.
four (4) Business Days prior to the requested date of such
Borrowing, conversion or continuation, whereupon the Administrative
Agent shall give prompt notice to the Lenders of such request and
determine whether the requested Interest Period is acceptable to
all of them. If the Interest Period requested is greater
than six months, not later than 11:00 a.m., three (3) Business
Days before the requested date of such Borrowing, conversion or
continuation, the Administrative Agent shall notify the Borrower
(which notice may be by telephone) whether or not the requested
Interest Period has been consented to by all the
Lenders. Each telephonic notice by the Borrower pursuant
to this Section 2.02(a)
must be confirmed promptly by delivery to the Administrative Agent
of a written Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Each Borrowing of,
conversion to or continuation of Eurodollar Rate Loans shall be in
a principal amount of $5,000,000 or a whole multiple of $1,000,000
in excess thereof. Each Borrowing of or conversion to
Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof. Each Loan
Notice (whether telephonic or written) shall specify
(i) whether the Borrower is requesting a Borrowing, a
conversion of Loans from one Type to the other, or a continuation
of Eurodollar Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which
shall be a Business Day), (iii) the principal amount of Loans
to be borrowed, converted or continued, (iv) the Type of Loans
to be borrowed or to which existing Loans are to be converted, and
(v) if applicable, the duration of the Interest Period with
respect thereto. If the Borrower fails to specify a Type
of Loan in a Loan Notice or if the Borrower fails to give a timely
notice requesting a conversion or continuation, then the applicable
Loans shall be made as, or converted to, Base Rate
Loans. Any such automatic conversion to Base Rate Loans
shall be effective as of the last day of the Interest Period then
in effect with respect to the applicable Eurodollar Rate
Loans. If the Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such
Loan Notice, but fail to specify an Interest Period, it will be
deemed to have specified an Interest Period of one
month.
(b) Following
receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Applicable
Percentage of the applicable Loans, and if no timely notice of
a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details
of any automatic conversion to Base Rate Loans described in
the preceding subsection. In the case of a
Borrowing, each Lender shall make the amount of its Loan
available to the Administrative Agent in immediately available
funds at the Administrative Agent’s Office not later
than 1:00 p.m. on the Business Day specified in the
applicable Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Borrowing, Section 4.01
), the Administrative Agent shall make all funds so received
available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account
of the Borrower on the books of Bank of America with the
amount of such funds or (ii) wire transfer of such funds,
in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the
Borrower.
(c) Except
as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest
Period for such Eurodollar Rate Loan. During the
existence of a Default, no Loans may be requested as,
converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
(d) The
Administrative Agent shall promptly notify the Borrower and
the Lenders of the interest rate applicable to any Interest
Period for Eurodollar Rate Loans upon determination of such
interest rate. At any time that Base Rate Loans are
outstanding, the Administrative Agent shall notify the
Borrower and the Lenders of any change in Bank of
America’s prime rate used in determining the Base Rate
promptly following the public announcement of such
change.
(e) After
giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the
same Type, there shall not be more than ten (10) Interest
Periods in effect with respect to Loans.
2.03
Intentionally
Omitted .
2.04
Intentionally
Omitted .
2.05
Prepayments
.
(a) The
Borrower may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Loans in whole or
in part without premium or penalty; provided
that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m.
(A) three (3) Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (B) on the date
of prepayment of Base Rate Loans; (ii) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $500,000 in excess thereof;
and (iii) any prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000
in excess thereof or, in each case, if less, the entire
principal amount thereof then outstanding. Each
such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be
prepaid. The Administrative Agent will promptly
notify each Lender of its receipt of each such notice and the
contents thereof, and of the amount of such Lender’s
Applicable Percentage of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such
prepayment and the payment amount specified in such notice
shall be due and payable on the date specified
therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest on the amount
prepaid, together with any additional amounts required
pursuant to Section 3.05
. Each such prepayment shall be applied to the
Loans of the Lenders in accordance with their respective
Applicable Percentages.
(b) If
for any reason the Total Outstandings at any time exceed the
Aggregate Commitments then in effect, the Borrower shall
immediately prepay Loans in an aggregate amount equal to such
excess.
2.06
Termination or
Reduction of Commitments .
The
Borrower may, upon notice to the Administrative Agent,
terminate the Aggregate Commitments, or from time to time
permanently reduce the Aggregate Commitments; provided
that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five (5)
Business Days prior to the date of termination or reduction,
(ii) any such partial reduction shall be in an aggregate
amount of $10,000,000 or any whole multiple of $1,000,000 in
excess thereof, and (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving
effect thereto and to any concurrent prepayments hereunder,
the Total Outstandings would exceed the Aggregate
Commitments. The Administrative Agent will promptly
notify the Lenders of any such notice of termination or
reduction of the Aggregate Commitments. Any
reduction of the Aggregate Commitments shall be applied to the
Commitment of each Lender according to its Applicable
Percentage. All fees accrued until the effective
date of any termination of the Aggregate Commitments shall be
paid on the effective date of such termination.
2.07
Repayment
of Loans .
The
Borrower shall, on the Maturity Date, cause the Obligations
(including, without limitation, all outstanding principal and
interest on the Loans and all fees, costs and expenses due and
owing under the Loan Documents) to be Fully
Satisfied.
2.08
Interest
.
(a) Subject
to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate
per annum equal to the Eurodollar Rate for such Interest
Period plus the
Applicable Rate and (ii) each Base Rate Loan shall bear
interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the
Base Rate plus the
Applicable Rate.
(b) (i) Upon
and during the continuance of an Event of Default, if any
amount of principal of any Loan is not paid when due (without
regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, such amount shall
thereafter bear interest at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.
(ii) Upon
and during the continuance of an Event of Default, if any
amount (other than principal of any Loan) payable by the
Borrower under any Loan Document is not paid when due (without
regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, then upon the request
of the Required Lenders, such amount shall bear interest at a
fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable
Laws.
(iii) Upon
the request of the Required Lenders, while any Event of
Default exists, the Borrower shall pay interest on the
principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable
Laws.
(iv) Accrued
and unpaid interest on past due amounts (including interest on
past due interest) shall be due and payable upon
demand.
(c) Interest
on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other
times as may be specified herein; provided
, in the case of Base Rate Loans, interest due and payable on
any Interest Payment Date (other than the Maturity Date) shall
be in arrears for the month ended as of the last day of the
month prior to such Interest Payment Date. Interest
hereunder shall be due and payable in accordance with the
terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief
Law.
2.09
Fees
.
The
Borrower shall, without duplication of any fees documented
herein, pay to the Arranger and the Administrative Agent for
their own respective accounts fees in the amounts and at the
times specified in the Fee Letter. Such fees shall
be fully earned when paid and shall not be refundable for any
reason whatsoever, except as specifically set forth in the Fee
Letter.
2.10
Computation of
Interest and Fees .
All
computations of interest for Base Rate Loans when the Base
Rate is determined by Bank of America’s “prime
rate” shall be made on the basis of a year of 365 or 366
days, as the case may be, and actual days
elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and
actual days elapsed (which results in more fees or interest,
as applicable, being paid than if computed on the basis of a
365-day year). Interest shall accrue on each Loan
for the day on which the Loan is made, and shall not accrue on
a Loan, or any portion thereof, for the day on which the Loan
or such portion is paid, provided
that any Loan that is repaid on the same day on which it is
made shall, subject to Section 2.12(a)
, bear interest for one day. Each determination by
the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent
manifest error.
2.11
Evidence
of Debt .
The
Borrowings made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of
business. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Borrowings made by
the Lenders to the Borrower and the interest and payments
thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing
with respect to the Obligations. In the event of
any conflict between the accounts and records maintained by
any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of
the Administrative Agent shall control in the absence of
manifest error. Upon the request of any Lender made
through the Administrative Agent, the Borrower shall execute
and deliver to such Lender (through the Administrative Agent)
a Note, which shall evidence such Lender’s Loans in
addition to such accounts or records. Each Lender
may attach schedules to its Note and endorse thereon the date,
Type (if applicable), amount and maturity of its Loans and
payments with respect thereto.
2.12
Payments
Generally; Administrative Agent’s Clawback
.
(a)
General
. All payments to be made by the Borrower shall be
made without condition or deduction for any counterclaim,
defense, recoupment or setoff. Except as otherwise
expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the
account of the respective Lenders to which such payment is
owed, at the Administrative Agent’s Office in Dollars
and in immediately available funds not later than
2:00 p.m. on the date specified herein. The
Administrative Agent will promptly distribute to each Lender
its Applicable Percentage (or other applicable share as
provided herein) of such payment in like funds as received by
wire transfer to such Lender’s Lending
Office. All payments received by the Administrative
Agent after 2:00 p.m. shall be deemed received on the
next succeeding Business Day and any applicable interest or
fee shall continue to accrue. If any payment to be
made by the Borrower shall come due on a day other than a
Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.
(b) (i)
Funding by
Lenders; Presumption by Administrative Agent
. Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed date of
any Borrowing of Eurodollar Rate Loans (or, in the case of any
Borrowing of Base Rate Loans, prior to 12:00 noon on the date
of such Borrowing) that such Lender will not make available to
the Administrative Agent such Lender’s share of such
Borrowing, the Administrative Agent may assume that such
Lender has made such share available on such date in
accordance with Section 2.02
(or, in the case of a Borrowing of Base Rate Loans, that such
Lender has made such share available in accordance with and at
the time required by Section 2.02
) and may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. In such event,
if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such
corresponding amount in immediately available funds with
interest thereon, for each day from and including the date
such amount is made available to the Borrower to but excluding
the date of payment to the Administrative Agent, at
(A) in the case of a payment to be made by such Lender,
the greater of the Federal Funds Rate and a rate determined by
the Administrative Agent in accordance with banking industry
rules on interbank compensation and (B) in the case of a
payment to be made by the Borrower, the interest rate
applicable to Base Rate Loans. If the Borrower and
such Lender shall pay such interest to the Administrative
Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Borrower the
amount of such interest paid by the Borrower for such
period. If such Lender pays its share of the
applicable Borrowing to the Administrative Agent, then the
amount so paid shall constitute such Lender’s Loan
included in such Borrowing. Any payment by the
Borrower shall be without prejudice to any claim the Borrower
may have against a Lender that shall have failed to make such
payment to the Administrative Agent.
(ii)
Payments by
Borrower; Presumptions by Administrative Agent
. Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account
of the Lenders hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower
has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the
Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender,
in immediately available funds with interest thereon, for each
day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.
A
notice of the Administrative Agent to any Lender or the
Borrower with respect to any amount owing under this
subsection (b) shall be conclusive, absent manifest
error.
(c)
Failure to
Satisfy Conditions Precedent . If any Lender
makes available to the Administrative Agent funds for any Loan
to be made by such Lender as provided in the foregoing
provisions of this Article II
, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable
Borrowing set forth in Article IV
are not satisfied or waived in accordance with the terms
hereof, the Administrative Agent shall return such funds (in
like funds as received from such Lender) to such Lender,
without interest.
(d)
Obligations of
Lenders Several . The obligations of the
Lenders hereunder to make Loans and to make payments pursuant
to Section 10.04(c)
are several and not joint. The failure of any
Lender to make any Loan, to fund any such participation or to
make any payment under Section 10.04(c)
on any date required hereunder shall not relieve any other
Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any
other Lender to so make its Loan, to purchase its
participation or to make its payment under Section 10.04(c)
.
(e)
Funding
Source . Nothing herein shall be deemed to
obligate any Lender to obtain the funds for any Loan in any
particular place or manner or to constitute a representation
by any Lender that it has obtained or will obtain the funds
for any Loan in any particular place or manner.
2.13
Sharing
of Payments by Lenders .
If
any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of the Loans made by it
resulting in such Lender’s receiving payment of a
proportion of the aggregate amount of such Loans or
participations and accrued interest thereon greater than its
pro
rata
share thereof as provided herein, then the Lender receiving
such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for
cash at face value) participations in the Loans of the other
Lenders, or make such other adjustments as shall be equitable,
so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans
and other amounts owing them, provided
that:
(i) if
any such participations or subparticipations are purchased and
all or any portion of the payment giving rise thereto is
recovered, such participations or subparticipations shall be
rescinded and the purchase price restored to the extent of
such recovery, without interest; and
(ii) the
provisions of this Section shall not be construed to
apply to (x) any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or
(y) any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its
Loans to any assignee or participant, other than to the
Borrower or any Subsidiary thereof (as to which the provisions
of this Section shall apply).
The
Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of
setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
2.14
Intentionally
Omitted .
2.15
Increase
in Commitments .
(a)
Request for
Increase . Provided there exists no Default,
upon notice to the Administrative Agent (which shall promptly
notify the Lenders), the Borrower may, at any time during the
term hereof, request increases in the Aggregate Commitments by
an amount not exceeding, in the aggregate, $115,000,0000;
provided
that any such request for an increase shall be in a minimum
amount of $25,000,000. At the time of sending such
notice, the Borrower (in consultation with the Administrative
Agent) shall specify the time period within which each Lender
is requested to respond (which shall in no event be less than
ten (10) Business Days from the date of delivery of such
notice to the Lenders).
(b)
Lender Elections
to Increase . Each Lender shall notify the
Administrative Agent within such time period whether or not it
agrees to increase its Commitment and, if so, whether by an
amount equal to, greater than, or less than its Applicable
Percentage of such requested increase. Any Lender
not responding within such time period shall be deemed to have
declined to increase its Commitment.
(c)
Notification by
Administrative Agent; Additional Lenders
. The Administrative Agent shall notify the
Borrower and each Lender of the Lenders’ responses to
each request made hereunder. To achieve the full
amount of a requested increase and subject to the approval of
the Administrative Agent (which approval shall not be
unreasonably withheld), the Borrower may also invite
additional Eligible Assignees to become Lenders pursuant to a
joinder agreement in form and substance satisfactory to the
Administrative Agent and its counsel.
(d)
Effective Date
and Allocations . If the Aggregate
Commitments are increased in accordance with this Section, the
Administrative Agent and the Borrower shall determine the
effective date (the “ Increase
Effective Date ”) and the final allocation of
such increase. The Administrative Agent shall
promptly notify the Borrower and the Lenders of the final
allocation of such increase and the Increase Effective
Date.
(e)
Conditions to
Effectiveness of Increase . As a condition
precedent to such increase, the Borrower shall deliver to the
Administrative Agent a certificate of each Loan Party dated as
of the Increase Effective Date (in sufficient copies for each
Lender) signed by a Responsible Officer of such Loan Party (i)
certifying and attaching the resolutions adopted by such Loan
Party approving or consenting to such increase, and (ii) in
the case of the Borrower, certifying that, before and after
giving effect to such increase, (A) the representations and
warranties contained in Article V
and the other Loan Documents are true and correct on and as of
the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of
such earlier date, and except that for purposes of this
Section 2.15
, the representations and warranties contained in
subsections (a) and (b) of Section 5.05
shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively,
of Section 6.01
, and (B) no Default exists. In addition, the
Borrower shall, to the extent requested by any Lender(s),
deliver to such Lender(s), as of the Increase Effective Date,
new Notes representing the Commitment(s) and Loans of such
Lender(s).
(f)
Conflicting
Provisions . This Section shall
supersede any provisions in Sections 2.13
or 10.01 to
the contrary.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01
Taxes
.
(a)
Payments Free of
Taxes; Obligation to Withhold; Payments on Account of
Taxes . (i) Any and all payments by or on
account of any obligation of the Borrower hereunder or under
any other Loan Document shall to the extent permitted by
applicable Laws be made free and clear of and without
reduction or withholding for any Taxes. If,
however, applicable Laws require the Borrower or the
Administrative Agent to withhold or deduct any Tax, such Tax
shall be withheld or deducted in accordance with such Laws as
determined by the Borrower or the Administrative Agent, as the
case may be, upon the basis of the information and
documentation to be delivered pursuant to subsection (e)
below.
(ii) If
the Borrower or the Administrative Agent shall be required by
the Code to withhold or deduct any Taxes, including both
United States Federal backup withholding and withholding
taxes, from any payment, then (A) the Administrative Agent
shall withhold or make such deductions as are determined by
the Administrative Agent to be required based upon the
information and documentation it has received pursuant to
subsection (e) below, (B) the Administrative Agent shall
timely pay the full amount withheld or deducted to the
relevant Governmental Authority in accordance with the Code,
and (C) to the extent that the withholding or deduction is
made on account of Indemnified Taxes or Other Taxes, the sum
payable by the Borrower shall be increased as necessary so
that after any required withholding or the making of all
required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative
Agent or Lender, as the case may be, receives an amount equal
to the sum it would have received had no such withholding or
deduction been made.
(b)
Payment of Other
Taxes by the Borrower . Without limiting the
provisions of subsection (a) above, the Borrower shall timely
pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable Laws.
(c)
Tax
Indemnifications . (i) Without limiting the
provisions of subsection (a) or (b) above, the Borrower shall,
and does hereby, indemnify the Administrative Agent and each
Lender, and shall make payment in respect thereof within 10
days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) withheld or deducted by
the Borrower or the Administrative Agent or 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. The Borrower shall also, and does
hereby, indemnify the Administrative Agent, and shall make
payment in respect thereof within 10 days after demand
therefor, for any amount which a Lender for any reason fails
to pay indefeasibly to the Administrative Agent as required by
clause (ii) of this subsection. A certificate as to
the amount of any such payment or liability delivered to the
Borrower 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.
(ii) Without
limiting the provisions of subsection (a) or (b) above, each
Lender shall, and does hereby, indemnify the Borrower and the
Administrative Agent, and shall make payment in respect
thereof within 10 days after demand therefor, against any and
all Taxes and any and all related losses, claims, liabilities,
penalties, interest and expenses (including the fees, charges
and disbursements of any counsel for the Borrower or the
Administrative Agent) incurred by or asserted against the
Borrower or the Administrative Agent by any Governmental
Authority as a result of the failure by such Lender to
deliver, or as a result of the inaccuracy, inadequacy or
deficiency of, any documentation required to be delivered by
such Lender to the Borrower or the Administrative Agent
pursuant to subsection (e). Each Lender hereby
authorizes the Administrative Agent to set off and apply any
and all amounts at any time owing to such Lender under this
Agreement or any other Loan Document against any amount due to
the Administrative Agent under this clause
(ii). The agreements in this clause (ii) shall
survive the resignation and/or replacement of the
Administrative Agent, any assignment of rights by, or the
replacement of, a Lender, the termination of the Aggregate
Commitments and the repayment, satisfaction or discharge of
all other Obligations.
(d)
Evidence of
Payments . Upon request by the Borrower or
the Administrative Agent, as the case may be, after any
payment of Taxes by the Borrower or the Administrative Agent
to a Governmental Authority as provided in this Section
3.01 , the Borrower shall deliver to the Administrative
Agent or the Administrative Agent shall deliver to the
Borrower, as the case may be, the original or a certified copy
of a receipt issued by such Governmental Authority evidencing
such payment, a copy of any return required by Law to report
such payment or other evidence of such payment reasonably
satisfactory to the Borrower or the Administrative Agent, as
the case may be.
(e)
Status of
Lenders; Tax Documentation . (i) Each Lender shall
deliver to the Borrower and to the Administrative Agent, at
the time or times prescribed by applicable Laws or when
reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation
prescribed by applicable Laws or by the taxing authorities of
any jurisdiction and such other reasonably requested
information as will permit the Borrower or the Administrative
Agent, as the case may be, to determine (A) whether or not
payments made hereunder or under any other Loan Document are
subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender's entitlement to
any available exemption from, or reduction of, applicable
Taxes in respect of all payments to be made to such Lender by
the Borrower pursuant to this Agreement or otherwise to
establish such Lender's status for withholding tax purposes in
the applicable jurisdiction.
(ii) Without
limiting the generality of the foregoing, if the Borrower is
resident for tax purposes in the United States,
(A) any
Lender that is a "United States person" within the meaning of
Section 7701(a)(30) of the Code shall deliver to the Borrower
and the Administrative Agent executed originals of Internal
Revenue Service Form W-9 or such other documentation or
information prescribed by applicable Laws or reasonably
requested by the Borrower or the Administrative Agent as will
enable the Borrower or the Administrative Agent, as the case
may be, to determine whether or not such Lender is subject to
backup withholding or information reporting requirements;
and
(B) each
Foreign Lender that is entitled under the Code or any
applicable treaty to an exemption from or reduction of
withholding tax with respect to payments hereunder or under
any other Loan Document shall deliver to the Borrower 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 Borrower
or the Administrative Agent, but only if such Foreign Lender
is legally entitled to do so), whichever of the following is
applicable:
(I) executed
originals of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty
to
which
the United States is a party,
(II) executed
originals of Internal Revenue Service Form
W-8ECI,
(III) executed
originals of Internal Revenue Service Form W-8IMY and all
required supporting documentation,
(IV) 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 the 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) executed originals of Internal
Revenue Service Form W-8BEN, or
(V) executed
originals of any other form prescribed by applicable Laws as a
basis for claiming exemption from or a reduction in United
States Federal withholding tax together with such
supplementary documentation as may be prescribed by applicable
Laws to permit the Borrower or the Administrative Agent to
determine the withholding or deduction required to be
made.
(iii) Each
Lender shall promptly (A) notify the Borrower and the
Administrative Agent of any change in circumstances which
would modify or render invalid any claimed exemption or
reduction, and (B) 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 Lending Office) to avoid any requirement
of applicable Laws of any jurisdiction that the Borrower or
the Administrative Agent make any withholding or deduction for
taxes from amounts payable to such Lender.
(f)
Treatment of
Certain Refunds . Unless required by
applicable Laws, at no time shall the Administrative Agent
have any obligation to file for or otherwise pursue on behalf
of a Lender, or have any obligation to pay to any Lender, any
refund of Taxes withheld or deducted from funds paid for the
account of such Lender. If the Administrative Agent
or any Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it
has been indemnified by the Borrower or with respect to which
the Borrower has paid additional amounts pursuant to this
Section, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section
with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses incurred by the
Administrative Agent or such Lender and without interest
(other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided
that the Borrower, upon the request of the Administrative
Agent or such Lender, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This
subsection shall not be construed to require the
Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes that
it deems confidential) to the Borrower or any other
Person.
3.02
Illegality
.
If
any Lender determines that any Law has made it unlawful, or
that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to
make, maintain or fund Eurodollar Rate Loans, or to determine
or charge interest rates based upon the Eurodollar Rate, or
any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to
take deposits of, Dollars in the London interbank market,
then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation of such Lender to
make or continue Eurodollar Rate Loans or to convert Base Rate
Loans to Eurodollar Rate Loans shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that
the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrower
shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all
Eurodollar Rate Loans of such Lender to Base Rate Loans,
either on the last day of the Interest Period therefor, if
such Lender may lawfully continue to maintain such Eurodollar
Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate
Loans. Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so
prepaid or converted.
3.03
Inability
to Determine Rates .
If
the Required Lenders determine that for any reason in
connection with any request for a Eurodollar Rate Loan or a
conversion to or continuation thereof that (a) Dollar
deposits are not being offered to banks in the London
interbank eurodollar market for the applicable amount and
Interest Period of such Eurodollar Rate Loan,
(b) adequate and reasonable means do not exist for
determining the Eurodollar Rate for any requested Interest
Period with respect to a proposed Eurodollar Rate Loan, or
(c) the Eurodollar Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan does not
adequately and fairly reflect the cost to such Lenders of
funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter,
the obligation of the Lenders to make or maintain Eurodollar
Rate Loans shall be suspended until the Administrative Agent
(upon the instruction of the Required Lenders) revokes such
notice. Upon receipt of such notice, the Borrower
may revoke any pending request for a Borrowing of, conversion
to or continuation of Eurodollar Rate Loans or, failing that,
will be deemed to have converted such request into a request
for a Borrowing of Base Rate Loans in the amount specified
therein.
3.04
Increased
Costs .
(a)
Increased Costs
Generally . If any Change in Law
shall:
(i) impose,
modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or
credit extended or participated in by, any Lender (except any
reserve requirement reflected in the Eurodollar
Rate);
(ii) subject
any Lender to any tax of any kind whatsoever with respect to
this Agreement, or any Eurodollar Rate Loan made by it, or
change the basis of taxation of payments to such Lender in
respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01
and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender); or
(iii) impose
on any Lender or the London interbank market any other
condition, cost or expense affecting this Agreement or
Eurodollar Rate Loans made by such Lender;
and
the result of any of the foregoing shall be to increase the
cost to such Lender of making or maintaining any Eurodollar
Rate Loan (or of maintaining its obligation to make any such
Loan) or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal,
interest or any other amount) then, upon request of such
Lender, the Borrower will pay to such Lender such additional
amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.
(b)
Capital
Requirements . If any Lender determines that
any Change in Law affecting such Lender or any Lending Office
of such Lender or such Lender’s holding company, if any,
regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender’s capital or
on the capital of such Lender’s holding company, if any,
as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by such Lender to a level below that
which such Lender or such Lender’s holding company could
have achieved but for such Change in Law (taking into
consideration such Lender’s policies and the policies of
such Lender’s holding company with respect to capital
adequacy), then from time to time the Borrower will pay to
such Lender such additional amount or amounts as will
compensate such Lender or such Lender’s holding company
for any such reduction suffered.
(c)
Certificates for
Reimbursement . A certificate of a Lender
setting forth the amount or amounts necessary to compensate
such Lender or its holding company, as the case may be, as
specified in subsection (a) or (b) of this
Section and delivered to the Borrower shall be conclusive
absent manifest error. The Borrower shall pay such
Lender the amount shown as due on any such certificate within
ten (10) days after receipt thereof.
(d)
Delay in
Requests . Failure or delay on the part of
any Lender to demand compensation pursuant to the foregoing
provisions of this Section shall not constitute a waiver
of such Lender’s right to demand such compensation,
provided
that the Borrower shall not be required to compensate a Lender
pursuant to the foregoing provisions of this Section for
any increased costs incurred or reductions suffered more than
nine (9) months prior to the date that such Lender notifies
the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s
intention to claim compensation therefor (except that, if the
Change in Law giving rise to such increased costs or
reductions is retroactive, then the nine (9) month period
referred to above shall be extended to include the period of
retroactive effect thereof).
3.05
Compensation for
Losses .
Upon
demand of any Lender (with a copy to the Administrative Agent)
from time to time, the Borrower shall promptly compensate such
Lender for and hold such Lender harmless from any loss, cost
or expense incurred by it as a result of:
(a) any
continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day
of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or
otherwise);
(b) any
failure by the Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Borrower; or
(c) any
assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a
request by the Borrower pursuant to Section 10.13
;
including
any loss of anticipated profits and any loss or expense
arising from the liquidation or reemployment of funds obtained
by it to maintain such Loan or from fees payable to terminate
the deposits from which such funds were
obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with
the foregoing.
For
purposes of calculating amounts payable by the Borrower to the
Lenders under this Section 3.05
, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Base Rate for such
Loan by a matching deposit or other borrowing in the London
interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan
was in fact so funded.
3.06
Mitigation
Obligations; Replacement of Lenders .
(a)
Designation of a
Different Lending Office . If any Lender
requests compensation under Section 3.04
, or the Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01
, or if any Lender gives a notice pursuant to Section 3.02
, then such Lender shall use
reasonable
efforts to designate a different Lending Office for funding or
booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 3.01
or 3.04 , as the
case may be, in the future, or eliminate the need for the notice
pursuant to Section 3.02
, as applicable, and (ii) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or
assignment.
(b)
Replacement of
Lenders . If any Lender requests
compensation under Section 3.04
, or if the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01
, the Borrower may replace such Lender in accordance with
Section 10.13
.
3.07
Survival
.
All
of the Borrower’s obligations under this Article III
shall survive termination of the Aggregate Commitments and
repayment of all other Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO BORROWINGS
4.01
Conditions of Initial
Borrowing .
The
obligation of each Lender to make its initial Borrowing
hereunder is subject to satisfaction of the following
conditions precedent:
(a) The
Administrative Agent’s receipt of the following, each of
which shall be originals or telecopies (followed promptly by
originals) unless otherwise specified, each properly executed
by a Responsible Officer of the signing Loan Party, each dated
the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date)
and each in form and substance satisfactory to the
Administrative Agent and each of the Lenders:
(i) fully
executed counterparts of this Agreement and the Guaranty,
sufficient in number for distribution to the Administrative
Agent, each Lender and the Borrower;
(ii) a
Note executed by the Borrower in favor of each Lender
requesting a Note;
(iii) such
certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers
of each Loan Party as the Administrative Agent may require
evidencing the identity, authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible
Officer in connection with this Agreement and the other Loan
Documents to which such Loan Party is a party;
(iv) such
documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly
organized or formed, and that each of the Loan Parties is
validly existing, in good standing and qualified to engage in
business in each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business
requires such qualification, except to the extent that failure
to do so could not reasonably be expected to have a Material
Adverse Effect ;
(v) a
favorable opinion of counsel to the Borrower (on behalf of
each of the Loan Parties), addressed to the Administrative
Agent and each Lender, as to the matters set forth in
Exhibit G
and such other matters concerning the Loan Parties and the
Loan Documents as the Required Lenders may reasonably
request;
(vi) a
certificate of a Responsible Officer of each Loan Party either
(A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and
performance by such Loan Party and the validity against such
Loan Party of the Loan Documents to which it is a party, and
such consents, licenses and approvals shall be in full force
and effect, or (B) stating that no such consents, licenses or
approvals are so required;
(vii) a
certificate signed by a Responsible Officer of the Parent
certifying (A) that each Consolidated Party is in compliance
with all existing contractual financial obligations, (B) all
governmental, shareholder and third party consents and
approvals necessary for the Loan Parties to enter into the
Loan Documents and fully perform thereunder, if any, have been
obtained, (C) immediately after giving effect to this
Agreement, the other Loan Documents and all the transactions
contemplated therein to occur on such date, (1) each of the
Loan Parties is solvent, (2) no Default or Event of Default
exists, (3) all representations and warranties contained
herein and in the other Loan Documents are true and correct in
all material respects, and (4) the Loan Parties are in
compliance with each of the financial covenants set forth in
Section
7.11 ; (D) that the conditions specified in
Sections 4.02(a)
and (b)
have been satisfied; (E) that there has been no
event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to
have, either individually or in the aggregate, a Material
Adverse Effect; and (F) the current
Credit Ratings;
(viii) evidence
that all insurance required to be maintained pursuant to the
Loan Documents has been obtained and is in effect;
and
(ix) such
other assurances, certificates, documents, consents or
opinions as the Administrative Agent or the Required Lenders
reasonably may require.
(b) There
shall not have occurred a material adverse change since
December 31, 2007 in the business, assets, operations,
condition (financial or otherwise) or prospects of the
Borrower and the other Loan Parties taken as a whole, or in
the facts and information regarding such entities as
represented to date.
(c) There
shall not exist any action, suit, investigation, or
proceeding pending or threatened, in any court or before any
arbitrator or governmental authority that could have a
Material Adverse Effect.
(d) Any
fees required to be paid on or before the Closing Date shall
have been paid.
(e) Unless
waived by the Administrative Agent, the Borrower shall have
paid all fees, charges and disbursements of counsel to the
Administrative Agent to the extent invoiced prior to or on the
Closing Date, plus such additional amounts of such fees,
charges and disbursements as shall constitute their reasonable
estimate of such fees, charges and disbursements incurred or
to be incurred by them through the closing proceedings
(provided that such estimate shall not thereafter preclude a
final settling of accounts between the Borrower and the
Administrative Agent).
Without
limiting the generality of the provisions of Section 9.04
, for purposes of determining compliance with the conditions
specified in this Section 4.01
, each Lender that has signed this Agreement shall be deemed
to have consented to, approved or accepted or to be satisfied
with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a
Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
4.02
