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Title: |
Term Loan Agreement |
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Entities: |
Bank of Nova Scotia; Citibank, NA; Citicorp North America, Inc.; Citigroup Global Markets Inc.; Deutsche Bank Trust Company Americas; FrontLine Capital Group; J.P. Morgan Securities Inc.; JPMorgan Chase Bank; PNC Bank, NA; Reckson Associates Realty Corp.; Wachovia Bank, NA; Bank of New York; Keybank NA; Bingham McCutchen; Fried, Frank, Harris, Shriver & Jacobson |
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Date: |
2005 |
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Preview shows 54KB of 327KB total |
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$97 |
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ID: |
#1175269 |
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EXECUTION VERSION
===============================================================================
TERM LOAN AGREEMENT
Dated as of May 12, 2005
among
RECKSON OPERATING PARTNERSHIP, L.P.
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
and
CITICORP NORTH AMERICA, INC.,
AS ADMINISTRATIVE AGENT
and
CITIGROUP GLOBAL MARKETS INC.,
AS LEAD ARRANGER AND SOLE BOOKRUNNER
===============================================================================
<PAGE>
<TABLE>
<CAPTION>
ARTICLE I. DEFINITIONS.......................................................................1
<S> <C> <C>
1.1. Certain Defined Terms.................................................................1
1.2. Computation of Time Periods..........................................................26
1.3. Accounting Terms.....................................................................26
1.4. Other Terms..........................................................................26
1.5. Rules of Interpretati................................................................26
ARTICLE II. AMOUNTS AND TERMS OF LOANS.......................................................27
2.1. Loans................................................................................27
2.2. Use of Proceeds of Loans.............................................................28
2.3. Term Loan Maturity Date..............................................................28
2.4. Authorized Agents....................................................................28
ARTICLE III. Intentionally Omitted............................................................28
ARTICLE IV. PAYMENTS AND PREPAYMENTS.........................................................29
4.1. Prepayments..........................................................................29
4.2. Payments.............................................................................30
4.3. Promise to Repay; Evidence of Indebtedness...........................................32
ARTICLE V. INTEREST AND FEES................................................................33
5.1. Interest on the Loans and other Obligations..........................................33
5.2. Special Provisions Governing Eurodollar Rate Loans...................................35
5.3. Fees.................................................................................38
ARTICLE VI. CONDITIONS TO LOANS..............................................................38
6.1. Conditions Precedent to the Loans....................................................38
ARTICLE VII. REPRESENTATIONS AND WARRANTIES...................................................40
7.1. Representations and Warranties of the Borrower.......................................40
ARTICLE VIII. REPORTING COVENANTS..............................................................47
8.1. Borrower Accounting Practices........................................................48
8.2. Financial Reports....................................................................48
8.3. Events of Default....................................................................50
8.4. Lawsuits.............................................................................50
8.5. Intentionally Omitted................................................................51
8.6. ERISA Notices........................................................................51
8.7. Environmental Notices................................................................53
<PAGE>
8.8. Labor Matters........................................................................53
8.9. Notices of Asset Sales and/or Acquisitions...........................................53
8.10. Notices of Joint Ventures............................................................54
8.11. Tenant Notifications.................................................................54
8.12. Other Reports........................................................................54
8.13. Other Information....................................................................55
ARTICLE IX. AFFIRMATIVE COVENANTS............................................................55
9.1. Existence. Etc.......................................................................55
9.2. Powers; Conduct of Business..........................................................55
9.3. Compliance with Laws. Etc............................................................55
9.4. Payment of Taxes and Claims..........................................................55
9.5. Insurance............................................................................56
9.6. Inspection of Property, Books and Records Discussions................................56
9.7. ERISA Compliance.....................................................................56
9.8. Maintenance of Property..............................................................56
9.9. Company Status.......................................................................57
9.10. Ownership of Projects, Joint Ventures and Property...................................57
9.11. Intentionally Omitted................................................................57
9.12. Additional Guarantors; Solvency of Guarantors........................................57
9.13. Further Assurances...................................................................57
9.14. Distributions in the Ordinary Course.................................................58
ARTICLE X. NEGATIVE COVENANTS...............................................................58
10.1. Intentionally Omitted................................................................58
10.2. Liens................................................................................58
10.3. Intentionally Omitted................................................................58
10.4. Conduct of Business..................................................................58
10.5. Transactions with Partners and Affiliates............................................58
10.6. Restriction on Fundamental Changes...................................................59
10.7. Margin Regulations; Securities Laws..................................................59
10.8. ERISA................................................................................59
10.9. Organizational Documents.............................................................60
10.10. Fiscal Year..........................................................................60
-ii-
<PAGE>
10.11. Financial Covenants..................................................................60
10.12. Negative Covenants with respect to the Company.......................................61
ARTICLE XI. EVENTS OF DEFAULT; RIGHTS AND REMEDIES...........................................62
11.1. Events of Default....................................................................62
11.2. Rights and Remedies..................................................................65
ARTICLE XII. THE AGENTS.......................................................................66
12.1. Appointment..........................................................................66
12.2. Nature of Duties.....................................................................66
12.3. Right to Request Instructions........................................................67
12.4. Reliance.............................................................................67
12.5. Indemnification......................................................................67
12.6. Agents Individually..................................................................67
12.7. Successor Agents.....................................................................68
12.8. Relations Among the Lenders..........................................................68
12.9. Standard of Care.....................................................................68
ARTICLE XIII. YIELD PROTECTION.................................................................69
13.1. Taxes................................................................................69
13.2. Increased Capital....................................................................71
13.3. Changes; Legal Restrictions..........................................................71
13.4. Replacement of Certain Lenders.......................................................72
13.5. Mitigation...........................................................................72
ARTICLE XIV. MISCELLANEOUS....................................................................72
14.1. Assignments and Participations.......................................................72
14.2. Expenses.............................................................................74
14.3. Indemnity............................................................................75
14.4. Change in Accounting Principles......................................................75
14.5. Intentionally Omitted................................................................76
14.6. Ratable Sharing......................................................................76
14.7. Amendments and Waivers...............................................................76
14.8. Notices..............................................................................78
14.9. Survival of Warranties and Agreements................................................78
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative................................79
-iii-
<PAGE>
14.11. Payments Set Aside...................................................................79
14.12. Severability.........................................................................79
14.13. Headings.............................................................................79
14.14. Governing Law........................................................................79
14.15. Limitation of Liability..............................................................79
14.16. Successors and Assigns...............................................................79
14.17. Certain Consents and Waivers of the Borrower.........................................80
14.18. Counterparts; Effectiveness; Inconsistencies.........................................81
14.19. Limitation on Agreements.............................................................81
14.20. Disclaimers..........................................................................81
14.21. Entire Agreement.....................................................................81
14.22. Confidentiality......................................................................81
14.23. Intentionally Omitted................................................................82
14.24. USA Patriot Act......................................................................82
</TABLE>
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<PAGE>
LIST OF EXHIBITS AND SCHEDULES
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Note
Exhibit C Form of Notice of Borrowing
Exhibit D Form of Notice of Conversion /Continuation
Exhibit E List of Closing Documents
Exhibit F Form of Compliance Certificate to Accompany Reports
Exhibit G Sample of Calculations of Financial Covenants
Exhibit H Form of Guaranty
Schedule EEP Eligible Encumbered Properties
Schedule EG Eligible Ground Lease
Schedule LC Lenders' Commitments and Notice Addresses
Schedule 1.1.1 Existing Permitted Liens
Schedule 1.1.2 Permitted Securities Options
Schedule 7.1-A Organizational Documents
Schedule 7.1-C Corporate Structure; Outstanding Capital Stock and
Partnership Interests; Partnership Agreement
Schedule 7.1-H Indebtedness for Borrowed Money; Contingent Obligations
Schedule 7.1-I Pending Actions
Schedule 7.1-P Environmental Matters
Schedule 7.1-Q ERISA Matters
Schedule 7.1-R Securities Activities
Schedule 7.1-T Insurance Policies
-v-
<PAGE>
TERM LOAN AGREEMENT
This Term Loan Agreement, dated as of May 12, 2005 (as amended,
supplemented or modified from time to time, the "Agreement"), is entered into
among RECKSON OPERATING PARTNERSHIP, L.P., a Delaware limited partnership
("Reckson"), the institutions from time to time a party hereto as Lenders,
whether by execution of this Agreement or an Assignment and Acceptance,
CITICORP NORTH AMERICA, INC., as Administrative Agent, and CITIGROUP GLOBAL
MARKETS INC. as Lead Arranger and Sole Bookrunner.
RECITALS
WHEREAS, Reckson desires that the Administrative Agent and the Lenders
party hereto provide a term loan facility in an aggregate amount of
$470,000,000; and
WHEREAS, the Administrative Agent and the other Lenders party hereto
have agreed to make the requested term loan facility available to Reckson in
accordance with the terms and provisions contained herein.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. The following terms used in this
Agreement shall have the following meanings, applicable both to the singular
and the plural forms of the terms defined:
"Acquisition" means that certain purchase by Reckson Court Square,
LLC, of One Court Square, Long Island City, New York from Citibank, N.A.
pursuant to that certain Purchase and Sale Agreement, dated as of May 4, 2005,
by and between Citibank, N.A., as seller, and Reckson Court Square, LLC, as
purchaser.
"Adjusted Unencumbered NOI" means, for the prior calendar quarter,
the sum of (i) NOI from the Consolidated Businesses attributable to
Unencumbered Projects and Unencumbered New York City Assets which are
wholly-owned or ground-leased by a Consolidated Business; plus (ii) the
Borrower's pro rata share of NOI from Joint Ventures attributable to
Unencumbered Projects and Unencumbered New York City Assets in which the
Borrower's beneficial economic interest in such Joint Ventures is 51% or
greater, provided the sale or financing of any Property owned or ground-leased
by such Joint Venture is substantially controlled by the Borrower, subject to
customary provisions set forth in the organizational documents of such Joint
Venture with respect to financings, sales or rights of first refusal granted
to other members of such Joint Venture; plus (iii) the Borrower's pro rata
share of NOI from Joint Ventures attributable to Unencumbered Projects and
Unencumbered New York City Assets in which the Borrower's beneficial economic
interest is less than 51%, provided that a majority of the beneficial economic
interests in such Joint Ventures that is not owned by the Consolidated
Businesses is owned or controlled by Qualified Joint Venture Partners; plus
(iv) the Borrower's
<PAGE>
pro rata share of Net Income attributable to other Unencumbered assets
including Performing Notes (exclusive of Investment Funds, land and
development, and service company income); plus (v) NOI from Eligible
Encumbered Properties; less (vi) the quotient of Capital Expenditure Coverage
Reserve Amounts for such period relating to such Unencumbered assets and
Eligible Encumbered Properties, divided by four (4);
provided, clause (ii) above shall not exceed twenty percent (20%) of Adjusted
Unencumbered NOI; clause (iii) above shall not exceed five percent (5%) of
Adjusted Unencumbered NOI; and clause (iv) above shall not exceed fifteen
percent (15%) of Adjusted Unencumbered NOI.
"Administrative Agent" means CNAI, in its capacity as administrative
agent for the Lenders.
"Affiliate", as applied to any Person, means any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, that Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as applied to any Person, means the possession,
directly or indirectly, of the power to vote ten percent (10%) or more of the
equity Securities having voting power for the election of directors of such
Person or otherwise to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting equity
Securities or by contract or otherwise.
"Agents" means, together, CNAI in its capacity as Administrative
Agent, the Arranger, and each successor agent appointed pursuant to the terms
of Article XII of this Agreement.
"Agreement" has the meaning set forth in the preamble hereto.
"Applicable Lending Office" means, with respect to a particular
Lender, (i) its Eurodollar Lending Office in respect of provisions relating to
Eurodollar Rate Loans, and (ii) its Domestic Lending Office in respect of
provisions relating to Base Rate Loans.
"Applicable Margin" means, with respect to each Loan, the respective
percentages per annum determined based on the range into which the Borrower's
Credit Rating then falls, in accordance with the following table. Any change
in the Borrower's Credit Rating causing it to move to a different range on the
table shall to the extent set forth below effect an immediate change in the
Applicable Margin. The Borrower shall notify the Administrative Agent in
writing promptly after becoming aware of any change in any of its Credit
Ratings. The Borrower shall maintain Credit Ratings from at least two (2)
Rating Agencies, one of which must be Moody's or S&P so long as such Persons
are in the business of providing debt ratings for the REIT industry; provided
that if the Borrower fails to maintain at least two Credit Ratings, the
Applicable Margin shall be based upon an S&P rating of less than BBB- in the
table below. In the event that the Borrower receives two (2) Credit Ratings
that are not equivalent, the Applicable Margin shall be determined by the
lower of such two (2) Credit Ratings, at least one of which shall be an
Investment Grade Rating. In the event the Borrower receives more than two (2)
Credit Ratings and such Credit Ratings are not equivalent, the Applicable
Margin shall be determined by the lower of the two highest ratings; provided
that each of said two (2) highest ratings shall be Investment Grade Ratings
and at least one of which shall be an Investment Grade Rating from S&P or
Moody's.
-2-
<PAGE>
Range of Applicable
the Borrower's Applicable Margin for
Credit Rating Margin for Euro Base Rate
(S&P/Moody's Dollar Loans Loans
or other Ratings) (% per annum) (% per annum)
------------------------------ ---------------- -------------
A-/A3 or their equivalent or
higher 0.60 0
BBB+/Baa1 or their equivalent 0.625 0
BBB/Baa2 or their equivalent 0.70 0
BBB-/Baa3 or their equivalent 0.90 0
Below BBB-/Baa3 or their 1.20 0
equivalent or unrated
The Administrative Agent shall notify the Lenders in writing promptly after it
obtains knowledge of any change in the Borrower's Credit Rating which shall
effect a change in the Applicable Margin.
"Arranger" means Citigroup Global Markets Inc., appointed pursuant to
the terms of Article XII of this Agreement.
"Assignment and Acceptance" means an Assignment and Acceptance in
substantially the form of Exhibit A attached hereto and made a part hereof
(with blanks appropriately completed) delivered to the Administrative Agent in
connection with an assignment of a Lender's interest under this Agreement in
accordance with the provisions of Section 14.1.
"Authorized Financial Officer" means a chief executive officer,
president, chief financial officer, treasurer or other qualified senior
officer acceptable to the Administrative Agent.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall at
all times be equal to the higher of:
(i) the rate of interest announced publicly by Citibank, N.A.
in New York, New York from time to time, as Citibank, N.A.'s prime
rate; and
(ii) the sum of (A) one-half of one percent (0.50%) per annum
plus (B) the Federal Funds Rate in effect from time to time during
such period.
Any change in the Base Rate shall result in a corresponding change on the same
day in the rate of interest accruing from and after such day on the unpaid
balance of any Base Rate Loan.
"Base Rate Loan" means (i) a Loan which bears interest at a rate
determined by reference to the Base Rate and the Applicable Margin as provided
in Section 5.1(a), or (ii) an overdue amount which was a Base Rate Loan
immediately before it became due.
"Benefit Plan" means an employee benefit plan defined in Section 3(3)
of ERISA in respect of which the Borrower or any ERISA Affiliate (i) is, or
within the immediately preceding
-3-
<PAGE>
six (6) years was, an "employer" as defined in Section 3(5) of ERISA or (ii)
has assumed or is otherwise subject to any liability.
"Borrower" means Reckson.
"Borrower Partnership Agreement" means the Reckson Partnership
Agreement as such agreement may be amended, restated, modified or supplemented
from time to time with the consent of the Agents or as permitted under Section
10.9.
"Borrowing" means a borrowing consisting of Loans of the same type
made, continued or converted on the same day.
"Budgeted Construction Cost" means, with respect to Property on which
vertical construction of Improvements (including redevelopments consisting of
or described as vacant buildings, but excluding TI Work and excluding work
prior to erection of the structure of the building) has commenced and is
proceeding to completion in the ordinary course but has not yet been completed
(as such completion shall be evidenced by a temporary or permanent certificate
of occupancy permitting use of such Property by the general public), the
aggregate full-budgeted costs of construction of such Improvements (including
land acquisition costs and other soft costs and TI Work relating to such
Property, in accordance with GAAP); provided that Budgeted Construction Cost
shall exclude build-to-suit Projects that are seventy-five percent (75%)
pre-leased or Projects which are less than seventy-five percent (75%)
pre-leased but have a pro-forma yield of ten percent (10%) or more, based upon
executed leases and the cost of acquisition plus the estimated cost to
complete the same, which estimated cost to complete shall be determined in a
manner reasonably acceptable to the Administrative Agent.
"Business Day" means a day, in the applicable local time, which is
not a Saturday or Sunday or a legal holiday and on which banks are not
required or permitted by law or other governmental action to close (i) in New
York, New York and (ii) in the case of Eurodollar Rate Loans, in London,
England.
"Capital Expenditure Valuation Reserve Amounts" means the sum of (a)
an amount per annum equal to $0.40 multiplied by the number of square feet for
office properties (other than New York City Assets) owned or ground leased,
directly or indirectly, by any of the Consolidated Businesses or Joint
Ventures; (b) an amount per annum equal to $0.15 multiplied by the number of
square feet for industrial properties owned or ground leased, directly or
indirectly, by any of the Consolidated Businesses or Joint Ventures; and (c)
an amount per annum equal to $0.50 multiplied by the number of square feet for
New York City Assets.
"Capital Expenditure Coverage Reserve Amounts" means the sum of (a)
an amount per annum equal to $1.25 multiplied by the number of square feet for
office properties (other than New York City Assets) owned or ground leased,
directly or indirectly, by any of the Consolidated Businesses or Joint
Ventures; (b) an amount per annum equal to $0.40 multiplied by the number of
square feet for industrial properties owned or ground leased, directly or
indirectly, by any of the Consolidated Businesses or Joint Ventures; and (c)
an amount per annum equal to $1.75 multiplied by the number of square feet for
New York City Assets.
"Capital Lease" means any lease of any property (whether real,
personal or mixed) by a Person as lessee which, in conformity with GAAP, is
accounted for as a capital lease on the balance sheet of that Person.
-4-
<PAGE>
"Capital Markets Transaction" means the issuance by the Company, the
Borrower or any of their respective Subsidiaries after the Closing Date of (a)
of debt securities (excluding mortgage financings or borrowings under the
Existing Revolving Credit Agreement or this Agreement) or (b) common or
preferred equity or equity equivalent securities, including partnership
interests, limited liability company interests and convertible securities
(however designated, and whether voting or non-voting, but excluding equity
not issued for the purpose of raising cash (including, but not limited to,
equity issued upon exercise of options or upon awards to company executives or
trustees, equity issued under any dividend reinvestment plan and equity
securities issued in private placements to a limited number of institutional
investors in connection with joint venture transactions)) issued in the public
or private capital markets pursuant to an underwriting or placement agreement
(or similar agreement performing the same function as an underwriting or
placement agreement).
"Capital Stock" means, with respect to any Person, any capital stock
of such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"Cash and Cash Equivalents" means unrestricted (i) cash, (ii)
marketable direct obligations issued or unconditionally guaranteed by the
United States government and backed by the full faith and credit of the United
States government; and (iii) domestic and Eurodollar certificates of deposit
and time deposits, bankers' acceptances and floating rate certificates of
deposit issued by any commercial bank organized under the laws of the United
States, any state thereof, the District of Columbia, any foreign bank, or its
branches or agencies (fully protected against currency fluctuations), which,
at the time of acquisition, are rated A-1 (or better) by S&P or P-1 (or
better) by Moody's provided that the maturities of such Cash and Cash
Equivalents shall not exceed one year.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. ss.ss. 9601 et seq., any amendments
thereto, any successor statutes, and any regulations or guidelines promulgated
thereunder.
"CNAI" means Citicorp North America, Inc.
"Claim" means any claim or demand, by any Person, of whatsoever kind
or nature for any alleged Liabilities and Costs, whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil
statute, Permit, ordinance or regulation, common law or otherwise.
"Closing Date" means May 12, 2005.
"Combined Equity Value" means Total Value, less Total Outstanding
Indebtedness.
"Commission" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
"Company" means Reckson Associates Realty Corp., a Maryland
corporation.
"Compliance Certificate" has the meaning set forth in Section 8.2(b).
-5-
<PAGE>
"Consolidated" means consolidated, in accordance with GAAP, but
excluding the effects of consolidation under Interpretation No. 46 of the
Financial Accounting Standards Board.
"Consolidated Businesses" means the Company, the Borrower, Reckson FS
Limited Partnership, Metropolitan, MOP and their wholly-owned Subsidiaries.
"Construction Asset Cost" means, with respect to Property on which
vertical construction of Improvements (including redevelopments consisting of
or described as vacant buildings, but excluding TI Work and excluding work
prior to erection of the structure of the building) has commenced and is
proceeding to completion in the ordinary course but has not yet been completed
(as such completion shall be evidenced by a temporary or permanent certificate
of occupancy permitting use of such Property by the general public), the
aggregate sums incurred and paid on the construction of such Improvements
(including land acquisition costs and other soft costs and TI Work relating to
such Property, in accordance with GAAP). Any such Property shall continue to
be valued (for financial covenant compliance purposes) at its Construction
Asset Cost until the end of four (4) consecutive quarters following such
completion (as such completion shall be evidenced by a temporary or permanent
certificate of occupancy permitting use of such Property by the general
public).
"Contaminant" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos containing materials (in
any form or condition), polychlorinated biphenyls (PCBs), or any constituent
of any such substance or waste, and includes, but is not limited to, these
terms as defined in federal, state or local laws or regulations.
"Contingent Obligation" as to any Person means, without duplication,
(i) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (ii) any obligation
required to be disclosed in the footnotes to such Person's financial
statements in accordance with GAAP, which obligation guarantees partially or
in whole any non-recourse Indebtedness, lease, dividend or other obligation,
exclusive of contractual indemnities (including, without limitation, any
Non-Recourse Carve-Outs, any indemnity or price-adjustment provision relating
to the purchase or sale of securities or other assets) and guarantees of
non-monetary obligations (other than guarantees of completion) which have not
yet been called on or quantified, of such Person or of any other Person.
Notwithstanding the foregoing, any litigation required to be disclosed in the
footnotes to such Person's financial statements in accordance with GAAP shall
not be included as a "Contingent Obligation" unless the same shall have been
reserved for in accordance with GAAP. The amount of any Contingent Obligation
described in clause (ii) shall be deemed to be (a) with respect to a guaranty
of interest or interest and principal, or operating income guaranty, the sum
of all payments required to be made thereunder (which in the case of an
operating income guaranty shall be deemed to be equal to the debt service for
the note secured thereby), calculated at the interest rate applicable to such
Indebtedness, through (i) in the case of an interest or interest and principal
guaranty, the stated date of maturity of the obligation (and commencing on the
date interest could first be payable thereunder), or (ii) in the case of an
operating income guaranty, the date through which such guaranty will remain in
effect, and (b) with respect to all guarantees not covered by the preceding
clause (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such guaranty is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as recorded on the
balance sheet and on the footnotes to the most recent financial statements of
the Borrower required to be delivered pursuant hereto; provided that in no
event shall the amount
-6-
<PAGE>
of Contingent Obligations with respect to any guaranties relating to a loan
exceed the principal amount of such loan. Notwithstanding anything contained
herein to the contrary, guarantees of completion shall not be deemed to be
Contingent Obligations unless and until a claim for payment has been made
thereunder, at which time any such guaranty of completion shall be deemed to
be a Contingent Obligation in an amount equal to any such claim. Subject to
the preceding sentence, (i) in the case of a joint and several guaranty given
by such Person and another Person (but only to the extent such guaranty is
recourse, directly or indirectly to the Borrower), the amount of the guaranty
shall be deemed to be 100% thereof unless and only to the extent that (X) such
other Person has delivered Cash or Cash Equivalents to secure all or any part
of such Person's guaranteed obligations or (Y) such other Person holds an
Investment Grade Rating from either Moody's or S&P, and (ii) in the case of a
guaranty (whether or not joint and several) of an obligation otherwise
constituting Debt of such Person, the amount of such guaranty shall be deemed
to be only that amount in excess of the amount of the obligation constituting
Indebtedness of such Person. Notwithstanding anything contained herein to the
contrary, "Contingent Obligations" shall not be deemed to include guarantees
of loan commitments or of construction loans to the extent the same have not
been drawn.
"Contractual Obligation", as applied to any Person, means any
provision of any Securities issued by that Person or any indenture, mortgage,
deed of trust, security agreement, pledge agreement, guaranty, contract,
undertaking, agreement or instrument to which that Person is a party or by
which it or any of its properties is bound, or to which it or any of its
properties is subject.
"Credit Rating" means the ratings assigned by not less than two of
the Rating Agencies (at least one of which shall be S&P or Moody's) to the
Borrower's senior long-term unsecured indebtedness. The decision on which two,
or in certain cases three, Rating Agencies to use shall be made by the
Borrower so long as one of such Rating Agencies shall be Moody's or S&P.
"Customary Permitted Liens" means
(i) Liens (other than Environmental Liens and Liens in favor of
the PBGC) with respect to the payment of taxes, assessments or
governmental charges or levies in all cases which are not yet due or
which are being contested in good faith by appropriate proceedings in
accordance with Section 9.4, and with respect to which adequate
reserves or other appropriate provisions are being maintained in
accordance with GAAP;
(ii) statutory and common law Liens of landlords against any
Property of the Borrower or any of its Subsidiaries;
(iii) Liens against any Property of the Borrower or any of its
Subsidiaries in favor of suppliers, mechanics, carriers, materialmen,
warehousemen or workmen and other Liens against any Property of the
Borrower or any of its Subsidiaries imposed by law created in the
ordinary course of business for amounts which could not reasonably be
expected to result in a Material Adverse Effect;
(iv) Liens (other than any Lien in favor of the PBGC) incurred
or deposits made in the ordinary course of business in connection
with worker's compensation, unemployment insurance or other types of
social security benefits or to secure the performance of bids,
tenders, sales, contracts (other than for the repayment of borrowed
money), surety, appeal and performance bonds; provided that (A) all
such Liens do not in
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the aggregate materially detract from the value of the Borrower's or
such Subsidiary's assets or Property or materially impair the use
thereof in the operation of their respective businesses, and (B) all
Liens of attachment or judgment and Liens securing bonds to stay
judgments or in connection with appeals which do not secure at any
time an aggregate amount of recourse Indebtedness exceeding
$10,000,000;
(v) Liens against any Property of the Borrower or any
Subsidiary of the Borrower arising with respect to zoning
restrictions, easements, licenses, reservations, covenants,
rights-of-way, utility easements, building restrictions and other
similar charges or encumbrances on the use of Real Property which do
not materially interfere with the ordinary conduct of the business of
the Borrower or any of its Subsidiaries;
(vi) leases or subleases granted to other Persons not materially
interfering with the conduct of the business of the Borrower and its
Subsidiaries taken as a whole;
(vii) Liens placed upon equipment or machinery used in the
ordinary course of business of the Borrower or any of its
Subsidiaries at the time of acquisition thereof by the Borrower or
any such Subsidiary or within 180 days thereafter to secure
Indebtedness incurred to pay all or a portion of the purchase price
thereof, provided that the Lien encumbering the equipment or
machinery so acquired does not encumber any other asset of the
Borrower or such Subsidiary;
(viii) customary restrictions imposed by licensors of software
or trademarks on users thereof;
(ix) interests of licensees and sublicensees in any trademarks
or other intellectual property license or sublicense by the Borrower
or any of its Subsidiaries; and
(x) Environmental Liens less than $5,000,000, which are being
contested in good faith by appropriate proceedings.
"Designated Lender" has the meaning set forth in Section 13.4.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"Dollars" and "$" mean the lawful money of the United States.
"Domestic Lending Office" means, with respect to any Lender, such
Lender's office, located in the United States, specified as the "Domestic
Lending Office" under its name on Schedule LC hereto or as set forth in the
Assignment and Acceptance by which it became a Lender or such other United
States office of such Lender as it may from time to time specify by written
notice to the Borrower and the Administrative Agent.
"Eligible Assignee" means (i) a Lender or a Lender Affiliate; (ii) a
commercial bank having total assets in excess of $5,000,000,000; (iii) the
central bank of any country which is a member of the organization for Economic
Cooperation and Development having total assets in excess of $10,000,000,000;
or (iv) a finance company or other financial institution reasonably acceptable
to the Administrative Agent, which is regularly engaged in making, purchasing
or
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<PAGE>
investing in loans and having total assets in excess of $1,000,000,000 or
is otherwise reasonably acceptable to the Administrative Agent.
"Eligible Cash 1031 Proceeds" means the cash proceeds held by a
"qualified intermediary" from the sale of Real Property, which proceeds are
intended to be used by such qualified intermediary to acquire one or more
"replacement properties" that are of "like-kind" to such Real Property in an
exchange that qualifies as a tax-free exchange under Section 1031 of the
Internal Revenue Code, and no portion of which proceeds the Borrower, the
Company or any Affiliate has the right to receive, pledge, borrow or otherwise
obtain the benefits of until such time as provided under the applicable
"exchange agreement" (as such terms in quotations are defined in Treasury
Regulations Section 1.1031(k)-1(g)(4) (the "Regulations")) or until such
exchange is terminated. Upon the cash proceeds no longer being held by such
qualified intermediary pursuant to the Regulations or otherwise no longer
qualifying under the Regulations for like-kind exchange treatment, such
proceeds shall cease being Eligible Cash 1031 Proceeds.
"Eligible Encumbered Properties" means the Projects and New York City
Assets listed on Schedule EEP, so long as (a) such Projects and New York City
Assets are owned or ground-leased by the Borrower or a Guarantor and would
otherwise satisfy the requirements of an Unencumbered Project or an
Unencumbered New York City Asset, except that such Project or New York City
Asset is subject to a lien which is not a Customary Permitted Lien, (b) the
Indebtedness secured by the Lien on such Project or New York City Asset that
exists on the Closing Date is not (x) amended or modified in any manner that
would increase the principal amount or postpone the maturity date thereof or
(y) refinanced or replaced with new Indebtedness having a principal amount
greater than or a maturity date later than the Indebtedness being refinanced
or replaced, (c) the Indebtedness secured by the Lien on such Project or New
York City Asset has not been accelerated, unless such acceleration is
rescinded and (d) no default or event of default under any mortgage or other
loan document relating to the Indebtedness secured by the Lien on such Project
or New York City Asset has occurred and is continuing, which default or event
of default then subjects such Indebtedness to acceleration or then permits
such Indebtedness to be accelerated under any such mortgage or other loan
document, unless such default or event of default is cured or waived.
"Eligible Ground Lease" means a ground lease that (a) has a minimum
remaining term of twenty-five (25) years, including tenant controlled options,
as of any date of determination, (b) has customary notice rights, default cure
rights, new lease rights in the event of bankruptcy of the tenant and other
customary provisions for the benefit of a leasehold mortgagee or has
equivalent protection for a leasehold permanent mortgagee by a subordination
to such leasehold permanent mortgagee of the landlord's fee interest, and (c)
is otherwise acceptable for non-recourse leasehold mortgage financing under
customary lending requirements. The Eligible Ground Leases as of the date of
this Agreement are listed on Schedule EG.
"Eligible Net Cash Proceeds" means all Net Cash Proceeds from any
Asset Sale that results in $50,000,000 or more of Net Cash Proceeds, other
than the Net Cash Proceeds from the proposed sale by the Borrower or its
Subsidiaries of Properties in Parsippany, New Jersey and Princeton, New Jersey
to Normandy Holdings, LLC.
"Environmental, Health or Safety Requirements of Law" means all
Requirements of Law derived from or relating to any federal, state or local
law, ordinance, rule, regulation, Permit, license or other binding
determination of any Governmental Authority relating to, imposing liability or
standards concerning, or otherwise addressing the environment, health and/or
safety,
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<PAGE>
including, but not limited to the Clean Air Act, the Clean Water Act, CERCLA,
RCRA, any so-called "Superfund" or "Superlien" law, the Toxic Substances
Control Act and OSHA, and public health codes, each as from time to time in
effect.
"Environmental Lien" means a Lien in favor of any Governmental
Authority for any (i) liabilities under any Environmental, Health or Safety
Requirement of Law, or (ii) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"Environmental Property Transfer Act" means any applicable
Requirement of Law that conditions, restricts, prohibits or requires any
notification or disclosure triggered by the transfer, sale, lease or closure
of any Property or deed or title for any Property for environmental reasons,
including, but not limited to, any so-called "Environmental Cleanup
Responsibility Act" or "Responsible Property Transfer Act".
"Equipment" means equipment used in connection with the maintenance
of Projects and Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
U.S.C. ss.ss. 1000 et seq., any amendments thereto, any successor statutes,
and any regulations or guidelines promulgated thereunder.
"ERISA Affiliate" means (i) any corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414 (b)
of the Internal Revenue Code) as the Borrower; (ii) a partnership or other
trade or business (whether or not incorporated) which is under common control
(within the meaning of Section 414 (c) of the Internal Revenue Code) with the
Borrower; and (iii) a member of the same affiliated service group (within the
meaning of Section 414 (m) of the Internal Revenue Code) as the Borrower, any
corporation described in clause (i) above or any partnership or trade or
business described in clause (ii) above.
"ERISA Termination Event" means (i) a Reportable Event with respect
to any Benefit Plan or Multiemployer Plan; (ii) the withdrawal of the Borrower
or any ERISA Affiliate from a Benefit Plan during a plan year in which the
Borrower or such ERISA Affiliate was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA or the cessation of operations which results in
the termination of employment of 20% of Benefit Plan participants who are
employees of the Borrower or any ERISA Affiliate; (iii) the imposition of an
obligation on the Borrower or any ERISA Affiliate under Section 4041 of ERISA
to provide affected parties written notice of intent to terminate a Benefit
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