Exhibit 10.3
UNSECURED CREDIT AGREEMENT
DATED AS OF MAY 31, 2005
This UNSECURED CREDIT AGREEMENT is entered into as of May 31, 2005 (the
"Agreement Effective Date") by and among BIOMED REALTY, L.P., a Maryland limited
partnership ("Borrower" or "Operating Partnership"), KEYBANK NATIONAL
ASSOCIATION, a national banking association ("KeyBank"), each bank whose name is
set forth on the signature pages of this Agreement, and each lender which may
hereafter become a party to this Agreement pursuant to Section 2.8 or Section
11.8 (collectively, together with KeyBank, the "Banks" and, individually, a
"Bank") and KEYBANK NATIONAL ASSOCIATION, not individually but as
"Administrative Agent."
RECITALS
WHEREAS, Borrower has requested that the Banks provide an unsecured
revolving credit facility and an unsecured term loan to Borrower; and
WHEREAS, the Banks are willing to do so on the terms set forth in this
Agreement,
NOW, THEREFORE, in consideration of the recitals herein and the mutual
covenants contained herein, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Adjusted Current Value" means, as of any date with respect to any
Income-Producing Project, (i) if such Project has been owned by one or more
members of the Consolidated Group for at least one full Fiscal Quarter for which
financial results have been reported, the Adjusted NOI for such Project divided
by the Capitalization Rate or (ii) if such Project has not been so owned for a
full Fiscal Quarter, the purchase price paid for such Project, net of fees and
closing costs.
"Adjusted EBITDA" means, as of any date, (a) EBITDA with respect to the
Consolidated Group for the most recent Fiscal Quarter for which financial
results have been reported less (b) Capital Reserves divided by four (4).
"Adjusted NOI" means, as of any date with respect to any Project or group
of Projects, an annualized amount determined by multiplying four (4) times NOI
of such Project or group of Projects for the most recent Fiscal Quarter for
which financial results have been reported and deducting therefrom the
then-current annualized Capital Reserves with respect to such Project or group
of Projects.
"Adjusted Unencumbered NOI" means, as of any date, Adjusted NOI
attributable to Qualified Unencumbered Projects that are then included in the
Unencumbered Pool, provided that, with respect to any such Qualified
Unencumbered Project that was either (i) acquired by the
Consolidated Group after the first day of the Fiscal Quarter on which such
Adjusted NOI is based, or (ii) first opened for occupancy after the first day of
such Fiscal Quarter, the Adjusted NOI for such Project for such Fiscal Quarter
shall be deemed to be increased by the per diem Adjusted NOI for such Project
after acquisition or opening times the number of days in such Fiscal Quarter
prior to the date of acquisition.
"Administrative Agent" means KeyBank, when acting in its capacity as the
Administrative Agent under any of the Loan Documents, or any successor
Administrative Agent.
"Administrative Agent's Office" means the Administrative Agent's office
located at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, or such other office as the
Administrative Agent hereafter may designate by written notice to Borrower and
the Banks.
"Advance" means any advance made or to be made by any Bank to Borrower as
provided in Article 2, and includes each Alternate Base Rate Advance and LIBOR
Rate Advance.
"Affiliate" means, as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. As used in this definition, "control" (and the correlative terms,
"controlled by" and "under common control with") shall mean possession, directly
or indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise); provided that, in any event, any
Person which owns, directly or indirectly, 10% or more of the securities having
ordinary voting power for the election of directors or other governing body of a
corporation, or 10% or more of the partnership or other ownership interests of
any other Person, will be deemed to be an Affiliate of such corporation,
partnership or other Person.
"Aggregate Adjusted Current Value" means, as of any date, the sum of the
Adjusted Current Values for all Income-Producing Projects then included in the
Unencumbered Pool.
"Aggregate Line Commitment" means, subject to Section 2.7 and Section 2.8,
Two Hundred Fifty Million Dollars ($250,000,000). The respective Line
Commitments and Percentages of the Banks with respect to the Aggregate Line
Commitment are set forth on Schedule 1.1.
"Aggregate Term Commitment" means One Hundred Million Dollars
($100,000,000). The respective Term Commitments and Percentages of the Banks
with respect to the Aggregate Term Commitment are set forth on Schedule 1.1.
"Agreement" means this Unsecured Credit Agreement, either as originally
executed or as it may from time to time be extended, supplemented, consolidated,
amended, restated, increased, renewed or modified.
"Alternate Base Rate" means, as of any date of determination, the rate per
annum equal to the higher of (a) the Prime Rate in effect on such date and (b)
the Federal Funds Effective Rate in effect on such date plus one-half of 1% (50
basis points) plus, in either case, the then-current Applicable Margin.
"Alternate Base Rate Advance" means an Advance made hereunder and
specified to be an Alternate Base Rate Advance in accordance with Article 2.
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"Alternate Base Rate Loan" means a Loan made hereunder and specified to be
an Alternate Base Rate Loan in accordance with Article 2.
"Applicable Margin" means the interest rate margin set forth below in the
LIBOR Rate Margin column with respect to LIBOR Rate Loans or in the Base Rate
Margin column with respect to Alternate Base Rate Loans, as the case may be,
opposite the Leverage Ratio as of the last day of the Fiscal Quarter most
recently ended:
Leverage Ratio LIBOR Rate Margin Base Rate Margin
------------------------------------------------ ----------------- ----------------
Less than 35% 1.20% 0%
Equal to or greater than 35% but less than 45% 1.35% 0%
Equal to or greater than 45% but less than 55% 1.55% 0%
Equal to or greater than 55% but less than 60% 1.75% 0.25%
Equal to or greater than 60% (permitted only as 2.00% 0.50%
described in Section 6.5)
The Applicable Margin for each Fiscal Quarter shall be established based
on the Leverage Ratio in effect as of the last day of the preceding Fiscal
Quarter; provided, however, that any such change in the Applicable Margin (and
therefore any change in the applicable interest rates for Loans) shall not be
effective until 50 days following the commencement of each Fiscal Quarter. Each
previously Applicable Margin shall remain in effect until a new Applicable
Margin is established as aforesaid. If Borrower fails to deliver a Compliance
Certificate containing the necessary financial information within 50 days after
the end of each Fiscal Quarter in order to determine the new Applicable Margin,
or should the Administrative Agent reasonably believe that such financial
information does not accurately reflect the Leverage Ratio, the Administrative
Agent may of its own volition, upon prior written notice to Borrower (which
notice shall include the basis for the Administrative Agent's determination),
establish the Applicable Margin based upon what the Administrative Agent
reasonably believes was in fact the Leverage Ratio as of the last day of the
prior Fiscal Quarter.
"Bank" means each bank whose name is set forth in the signature pages of
this Agreement and each lender which may hereafter become a party to this
Agreement pursuant to Section 2.8 or Section 11.8.
"Banking Day" means (i) with respect to any borrowing, payment or rate
selection of LIBOR Rate Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Cleveland, Ohio, and New York, New York for
the conduct of substantially all of their commercial lending activities and on
which dealings in Dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Cleveland, Ohio, and New York, New York for the conduct of
substantially all of their commercial lending activities.
"Bayshore Project" means the Project currently owned by Borrower and
located in Brisbane, California.
"Borrowing Base" means, as of any date, an amount equal to (i) fifty-five
percent (55%) of the Aggregate Adjusted Current Value of those Income-Producing
Projects in the Unencumbered Pool, plus (ii) fifty percent (50%) of the Invested
Cash in Unstabilized Projects in the
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Unencumbered Pool, provided, however, that the amount so added under this clause
(ii) with respect to Unstabilized Projects shall in no event exceed twenty
percent (20%) of the total Borrowing Base.
"Capital Lease Obligations" means all monetary obligations of a Person
under any leasing or similar arrangement which, in accordance with Generally
Accepted Accounting Principles, is classified as a capital lease, other than
those obligations so classified solely as a result of FAS 141.
"Capital Reserves" means, as of any date with respect to any
Income-Producing Project or group of Income-Producing Projects, an annual amount
equal to (i) $0.30 per square foot of the aggregate Net Rentable Area of those
Income-Producing Projects owned by a member of the Consolidated Group as of the
last day of the most recent Fiscal Quarter for which financial results have been
reported and (ii) the applicable Consolidated Group Pro Rata Share of $0.30 per
square foot of the Net Rentable Area of those Income-Producing Projects owned by
an Investment Affiliate as of the last day of such Fiscal Quarter.
"Capitalization Rate" means nine and one quarter percent (9.25%). The
Capitalization Rate shall be reviewed annually by the Banks and may be adjusted
(upward or downward) effective as of each anniversary of the date of this
Agreement to such percentage as the Requisite Banks may determine, in good faith
and in their reasonable discretion, after consultation with Borrower, to reflect
then-current capitalization rates for similar assets.
"Cash Equivalents" means, as of any date:
(i) securities issued or directly and fully guaranteed or insured by
the United States of America government or any agency or instrumentality
thereof having maturities of not more than one year from such date;
(ii) mutual funds organized under the United States Investment
Company Act of 1940, as amended, rated AAm or AAm-G by S&P and P-1 by
Xxxxx'x;
(iii) certificates of deposit or other interest-bearing obligations
of a bank or trust company which is a member in good standing of the
Federal Reserve System having a short term unsecured debt rating of not
less than A-1 by S&P and not less than P-1 by Xxxxx'x (or in each case, if
no bank or trust company is so rated, the highest comparable rating then
given to any bank or trust company, but in such case only for funds
invested overnight or over a weekend) provided that such investments shall
mature or be redeemable upon the option of the holders thereof on or prior
to a date one month from the date of their purchase;
(iv) certificates of deposit or other interest-bearing obligations
of a bank or trust company which is a member in good standing of the
Federal Reserve System having a short term unsecured debt rating of not
less than A-1+ by S&P, and not less than P-1 by Xxxxx'x and which has a
long term unsecured debt rating of not less than A1 by Xxxxx'x (or in each
case, if no bank or trust company is so rated, the highest comparable
rating then given to any bank or trust company, but in such case only for
funds invested overnight or over a weekend) provided that such investments
shall mature or be redeemable upon the option of the holders thereof on or
prior to a date three months from the date of their purchase;
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(v) bonds or other obligations having a short term unsecured debt
rating of not less than A-1+ by S&P and P-1+ by Xxxxx'x and having a long
term debt rating of not less than A1 by Xxxxx'x issued by or by authority
of any state of the United States of America, any territory or possession
of the United States of America, including the Commonwealth of Puerto Rico
and agencies thereof, or any political subdivision of any of the
foregoing;
(vi) repurchase agreements issued by an entity rated not less than
A-1+ by S&P, and not less than P-1 by Xxxxx'x which are secured by United
States of America government securities of the type described in clause
(i) of this definition maturing on or prior to a date one month from the
date the repurchase agreement is entered into;
(vii) short term promissory notes rated not less than A-1+ by S&P,
and not less than P-1 by Xxxxx'x maturing or to be redeemable upon the
option of the holders thereof on or prior to a date one month from the
date of their purchase; and
(viii) commercial paper (having original maturities of not more than
365 days) rated at least A-1+ by S&P and P-1 by Xxxxx'x and issued by a
foreign or domestic issuer who, at the time of the investment, has
outstanding long-term unsecured debt obligations rated at least A1 by
Xxxxx'x.
"Certificate" means a certificate signed by a Senior Officer or
Responsible Official (as applicable) of the Person providing the certificate.
"Changeover Date" is defined in Section 6.12.
"Closing Date" means the time and Banking Day on which the conditions set
forth in Section 8.1 are satisfied or waived. The Administrative Agent shall
notify Borrower and the Banks of the date that is the Closing Date.
"Code" means the Internal Revenue Code of 1986, as amended or replaced and
as in effect from time to time.
"Commitments" means, collectively, all of the Line Commitments and Term
Commitments.
"Commitments Assignment and Acceptance" means an assignment and acceptance
agreement substantially in the form of Exhibit A.
"Compliance Certificate" means a certificate in the form of Exhibit B,
properly completed and signed by a Senior Officer of Borrower.
"Confidential Information" means (i) all of the terms, covenants,
conditions or agreements set forth in this Agreement or any amendments hereto
and any related agreements of whatever nature, (ii) the information and reports
provided in compliance with Article 7 of this Agreement, (iii) any and all
information provided, disclosed or otherwise made available to the
Administrative Agent and the Banks including, without limitation, any and all
plans, maps, studies (including market studies), reports or other data,
operating expense information, as-built plans, specifications, site plans,
drawings, notes, analyses, compilations, or other documents or materials
relating to the Projects or their condition or use, whether prepared by Borrower
or others, which use, or reflect, or
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that are based on, derived from, or are in any way related to the foregoing, and
(iv) any and all other information of Parent, its Subsidiaries or the Investment
Affiliates that the Administrative Agent or any Bank may have access to
including, without limitation, ideas, samples, media, techniques, sketches,
specifications, designs, plans, forecasts, financial information, technical
information, drawings, works of authorship, models, inventions, know-how,
processes, apparatuses, equipment, algorithms, financial models and databases,
software programs, software source documents, manuals, documents, properties,
names of tenants or potential tenants, vendors, suppliers, distributors and
consultants, and formulae related to the current, future, and proposed products
and services of Parent, its Subsidiaries, the Investment Affiliates, tenants or
potential tenants (including, without limitation, information concerning
research, experimental work, development, design details and specifications,
engineering, procurement requirements, purchasing, manufacturing, customer
lists, investors, employees, clients, business and contractual relationships,
business forecasts, and sales and marketing plans). Such Confidential
Information may be disclosed or accessible to the Administrative Agent and the
Banks as embodied within tangible material (such as documents, drawings,
pictures, graphics, software, hardware, graphs, charts, or disks), orally, or
visually.
"Consolidated Group" means Parent, Borrower and all Subsidiaries of
Borrower which are consolidated with Parent and Borrower for financial reporting
purposes under GAAP.
"Consolidated Group Pro Rata Share" means, with respect to any Investment
Affiliate, the percentage of the total equity ownership interests held by the
Consolidated Group in the aggregate in such Investment Affiliate determined by
calculating the greater of (i) the percentage of the issued and outstanding
stock, partnership interests or membership interests in such Investment
Affiliate held by the Consolidated Group in the aggregate and (ii) the
percentage of the total book value of such Investment Affiliate that would be
received by the Consolidated Group in the aggregate upon liquidation of such
Investment Affiliate, after repayment in full of all Indebtedness of such
Investment Affiliate.
"Consolidated Outstanding Indebtedness" means, as of any date of
determination, without duplication, the sum of (a) all Indebtedness of the
Consolidated Group outstanding at such date, determined on a consolidated basis
in accordance with GAAP (whether recourse or non-recourse), plus, without
duplication, (b) the applicable Consolidated Group Pro Rata Share of any
Indebtedness of each Investment Affiliate other than Indebtedness of such
Investment Affiliate to a member of the Consolidated Group.
"Continuing Tenant" means, with respect to any Income-Producing Project
for any Fiscal Quarter, a tenant of such Project which was in occupancy at all
times during such Fiscal Quarter and paying rent.
"Contractual Obligation" means, as to any Person, any provision of any
outstanding security issued by that Person or of any material agreement,
instrument or undertaking to which that Person is a party or by which it or any
of its Property is bound.
"Controlled Entity" means a Person (a) that is a Subsidiary of Parent, (b)
that is a general partnership or a limited partnership in which Borrower or a
Wholly-Owned Subsidiary of Borrower is the sole managing general partner and
such managing general partner has the sole power to
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(i) sell all or substantially all of the assets of such Person, (ii) incur
Indebtedness in the name of such Person, (iii) xxxxx x Xxxx on all or any
portion of the assets of such Person and (iv) otherwise generally manage the
business and assets of such Person or (c) that is a limited liability company
for which Borrower or a Wholly-Owned Subsidiary of Borrower is the sole manager
and such manager has the sole power to do the acts described in subclauses (i)
through (iv) of clause (b) above.
"Debt Offering" means the issuance and sale by any member of the
Consolidated Group of any debt securities of such member, excluding debt
securities issued to and retained by another member of the Consolidated Group.
"Debt Service" means, for any Fiscal Quarter, the sum of all Interest
Expense and all mandatory or regularly scheduled principal payments due and
payable during such Fiscal Quarter on the related Indebtedness, excluding any
balloon payments due upon maturity of such Indebtedness (provided that Debt
Service with respect to the Consolidated Group shall include only the applicable
Consolidated Group Pro Rata Share of all such principal payments for such Fiscal
Quarter with respect to Indebtedness of Investment Affiliates). Debt Service
shall include the portion of rent payable by a Person during such Fiscal Quarter
under Capital Lease Obligations that should be treated as principal in
accordance with Generally Accepted Accounting Principles.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, as amended from time to time, and all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws from time to time in
effect affecting the rights of creditors generally.
"Default" means any event that, with the giving of any applicable notice
or passage of time specified in Section 9.1 or both, would be an Event of
Default.
"Defaulting Bank" means (a) any Bank that has failed to fund any Advance
within two (2) Banking Days after such funding is required pursuant to this
Agreement; or (b) any Bank that has (i) breached any other material term or
condition of this Agreement or (ii) failed to make any other payment to the
Administrative Agent (whether such payment is a reimbursement for costs,
expenses or attorneys' fees, an indemnity payment, the repayment of erroneously
paid funds, a portion of any set-off to be turned over to the Administrative
Agent or otherwise) when such payment is due and payable under this Agreement or
any other Loan Document, if such breach or failure has not been cured or paid
within ten (10) days after notice thereof from the Administrative Agent to such
Bank.
"Default Rate" means the interest rate prescribed in Section 3.6.
"Designated Deposit Account" means a deposit account to be maintained by
Borrower with KeyBank or one of its Affiliates, as from time to time designated
by Borrower by written notification to the Administrative Agent.
"Distribution" means, with respect to any shares of capital stock or any
warrant or option to purchase an equity security or other equity security or
interest issued by a Person, (i) the retirement, redemption, purchase or other
acquisition for cash or for Property by such Person of any such security or
interest, (ii) the declaration or (without duplication) payment by such Person
of any dividend in cash or in Property on or with respect to any such security
or interest, (iii) any
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Investment by such Person in the holder of 5% or more of any such security or
interest if a purpose of such Investment is to avoid characterization of the
transaction as a Distribution or (iv) any other payment in cash or Property by
such Person constituting a distribution under applicable Laws with respect to
such security or interest.
"Dollars" or "$" means United States of America dollars.
"EBITDA" means, with respect to any Person for any Fiscal Quarter, the Net
Income of such Person (from operations and from discontinued operations) for
that Fiscal Quarter, before (i) interest, income taxes, depreciation,
amortization and all other non-cash expenses (including non-cash compensation,
to the extent not actually paid as a cash expense) of such Person for that
Fiscal Quarter and (ii) extraordinary gains (and losses) of such Person, in each
case as determined on a consolidated basis in accordance with Generally Accepted
Accounting Principles; provided, that in performing the foregoing calculation of
EBITDA with respect to the Consolidated Group, that portion of EBITDA
attributable to the Consolidated Group's equity interests in any Investment
Affiliates shall be deducted, and the applicable Consolidated Group Pro Rata
Share of EBITDA in each such Investment Affiliate shall be added back into the
calculation.
"Eligible Assignee" means (a) another Bank, (b) with respect to any Bank,
any Affiliate of that Bank, (c) any commercial bank having a combined capital
and surplus of $5,000,000,000 or more, (d) the central bank of any country which
is a member of the Organization for Economic Cooperation and Development, (e)
any savings bank, savings and loan association or similar financial institution
which (A) has a net worth of $500,000,000 or more, (B) is engaged in the
business of lending money and extending credit under credit facilities
substantially similar to those extended under this Agreement and (C) is
operationally and procedurally able to meet the obligations of a Bank hereunder
to the same degree as a commercial bank, and (f) any other financial institution
(including a mutual fund or other fund) approved by the Administrative Agent
and, unless an Event of Default shall have occurred and be continuing, Borrower
(such approval not to be unreasonably withheld or delayed) having total assets
of $500,000,000 or more which meets the requirements set forth in subclauses (B)
and (C) of clause (e) above; provided that each Eligible Assignee must either
(a) be organized under the Laws of the United States of America, any State
thereof or the District of Columbia or (b) be organized under the Laws of the
Cayman Islands or any country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of such a country, and
(i) act hereunder through a branch, agency or funding office located in the
United States of America and (ii) be exempt from withholding of tax on interest
and deliver the documents related thereto pursuant to Section 11.21.
"Employee Plan" means any (a) employee benefit plan (as defined in Section
3(3) of ERISA) that is subject to Title I of ERISA, (b) any plan (as defined in
Section 4975(e)(1) of the Code) that is subject to Section 4975 of the Code, (c)
any entity the underlying assets of which include plan assets (as defined in 29
C.F.R. Section 2510.3-101 or otherwise under ERISA) by reason of a plan's
investment in such entity (including an insurance company general account), or
(d) a governmental plan (as defined in Section 3(32) of ERISA or Section 414(d)
of the Code) organized in a jurisdiction within the United States of America
having prohibitions on transactions with such governmental plan substantially
similar to those contained in Section 406 of ERISA or Section 4975 of the Code.
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"Equity Offering" means the issuance and sale by any member of the
Consolidated Group of any equity securities of such member, excluding equity
securities issued to and retained by another member of the Consolidated Group.
"ERISA" means the Employee Retirement Income Security Act of 1974, and any
regulations issued pursuant thereto, as amended or replaced and as in effect
from time to time.
"ERISA Affiliate" means each Person (whether or not incorporated) which is
required to be aggregated with Parent pursuant to Section 414 of the Code.
"Event of Default" shall have the meaning provided in Section 9.1.
"Exception Projects" means the Landmark at Eastview Project and the KOP
Project.
"Excluded Tenant" means, with respect to any Income-Producing Project for
any Fiscal Quarter, a tenant of such Project (i) whose lease expired or was
terminated during such Fiscal Quarter or within thirty (30) days after the
expiration of such Fiscal Quarter or (ii) which either defaulted in the payment
of any of its lease obligations during such Fiscal Quarter (and such payment
default is continuing after all required notices have been given and all
applicable cure periods provided for in such lease have expired) or was the
debtor in a voluntary or involuntary proceeding under any Debtor Relief Law
during such Fiscal Quarter.
"Facility Availability Amount" means, as of any date, the lowest of (a)
the sum of the Aggregate Line Commitment plus the Aggregate Term Commitment, (b)
the Borrowing Base as of such date and (c) the maximum aggregate Outstanding
Line Amount and Outstanding Term Amount that could be outstanding on such date
without causing the Unsecured Debt Service Coverage Ratio to fall below 1.75 to
1.00.
"FAS 141" means Statement No. 141 issued by the Financial Accounting
Standards Board.
"Federal Funds Effective Rate" shall mean, for any day, the rate per annum
announced by the Federal Reserve Bank of Cleveland on such day as being the
weighted average of the rates on overnight federal funds transactions arranged
by federal funds brokers on the previous trading day, as computed and announced
by such Federal Reserve Bank in substantially the same manner as such Federal
Reserve Bank computes and announces the weighted average it refers to as the
"Federal Funds Effective Rate."
"Fee Letter" means that certain fee letter dated as of April 12, 2005
among the Parent, Borrower and the Administrative Agent.
"Fiscal Quarter" means the fiscal quarter of the Consolidated Group ending
on each March 31, June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of Borrower ending on each December
31.
"Fixed Charge Coverage Ratio" means, as of any date, (a) Adjusted EBITDA
divided by (b) the sum of (i) Debt Service with respect to the Consolidated
Group plus (ii) all Preferred Distributions of the Consolidated Group plus (iii)
the Consolidated Group Pro Rata Share of all
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Preferred Distributions of Investment Affiliates, in each case based on the most
recent Fiscal Quarter for which financial results have been reported.
"Funds Available for Distribution" means with respect to any fiscal
period, an amount equal to (a) Funds From Operations of the Consolidated Group,
minus (b) Net Capital Expenditures of the Consolidated Group incurred during
such fiscal period plus (c) non-cash compensation of the Consolidated Group,
plus (d) revenue of the Consolidated Group from master leases of the KOP Project
and the Bayshore Project, provided such aggregate amount shall be adjusted to
exclude the effects of (x) straight lining of rents, and (y) the above/below
market lease amortization recorded in accordance with FAS 141, without
duplication, plus (e) if such fiscal period includes a Fiscal Quarter ending on
or before September 30, 2005, any unamortized financing fees included in
interest expense as a result of the termination or repayment of the related
financing on or before September 30, 2005.
"Funds From Operations" with respect to any fiscal period shall have the
same meaning determined from time to time by the National Association of Real
Estate Investment Trusts to be the meaning most commonly used by its members.
"Generally Accepted Accounting Principles" or "GAAP" means, as of any date
of determination, accounting principles (a) set forth as generally accepted in
then currently effective Opinions of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (b) set forth as generally
accepted in then currently effective Statements of the Financial Accounting
Standards Board or (c) that are then approved by such other entity as may be
approved by a significant segment of the accounting profession in the United
States of America. The term "consistently applied," as used in connection
therewith, means that the accounting principles applied are consistent in all
material respects with those applied at prior dates or for prior periods.
"Governmental Agency" means (a) any international, foreign, federal,
state, county or municipal government, or political subdivision thereof, (b) any
governmental or quasi-governmental agency, authority, board, bureau, commission,
department, instrumentality or public body or (c) any court or administrative
tribunal, each of competent jurisdiction.
"Gross Asset Value" means, as of any day, an amount equal to the sum of
the following assets then owned by a member of the Consolidated Group or an
Investment Affiliate and valued as follows: (i) Adjusted NOI attributable to
Projects owned by a member of the Consolidated Group (or the Consolidated Group
Pro Rata Share thereof with respect to Projects owned by an Investment
Affiliate) (excluding any such portion of such Adjusted NOI attributable to (a)
Projects that were Unstabilized Projects at any time during the Fiscal Quarter
with respect to which Adjusted NOI is determined, (b) Projects acquired after
the first day of such Fiscal Quarter, or (c) Projects disposed of during or
after such Fiscal Quarter), divided by the Capitalization Rate; plus, without
duplication, (ii) with respect to each such excluded Project that was an
Unstabilized Project, the greater of (a) the portion of such Adjusted NOI
attributable to such excluded Project (or the Consolidated Group Pro Rata Share
thereof with respect to any such excluded Project owned by an Investment
Affiliate), divided by the Capitalization Rate and (b) the Consolidated Group's
GAAP cost basis (or the Consolidated Group Pro Rata Share thereof with respect
to any such excluded Project owned by an Investment Affiliate) in such excluded
Project; plus (iii) the acquisition cost of all Projects
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acquired after the first day of such Fiscal Quarter and on or prior to such date
of determination (or the Consolidated Group Pro Rata Share thereof with respect
to any such acquired Project owned by an Investment Affiliate); plus (iv) the
acquisition cost of all raw land held for development as of such date (or the
Consolidated Group Pro Rata Share thereof with respect to any such land owned by
an Investment Affiliate) (provided that the amount contributed to Gross Asset
Value under this clause (iv) shall not exceed 10% of the total Gross Asset
Value); plus (v) cash and Cash Equivalents of the Consolidated Group as of such
date of determination.
"Guarantors" means, collectively, (a) Parent, (b) the Initial Unencumbered
Project Subsidiaries, and (c) any other Subsidiary of Borrower that hereafter
owns a Qualified Unencumbered Project and executes a Joinder Agreement pursuant
to Section 5.13. Guarantors are jointly and severally obligated with respect to
the Obligations.
"Guarantee" or "Guaranteed Obligation" means, as to any Person, any (a)
guarantee by that Person of Indebtedness of, or other obligation performable by,
any other Person or (b) assurance given by that Person to an obligee of any
other Person with respect to the performance of an obligation by, or the
financial condition of, such other Person, whether direct, indirect or
contingent, including any purchase or repurchase agreement covering such
obligation or any collateral security therefor, any agreement to provide funds
(by means of loans, capital contributions or otherwise) to such other Person,
any agreement to support the solvency or level of any balance sheet item of such
other Person or any "keep-well" or other arrangement of whatever nature given
for the purpose of assuring or holding harmless such obligee against loss with
respect to any obligation of such other Person; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation in respect of Indebtedness shall be deemed to be an amount equal to
the stated or determinable amount of the related Indebtedness (unless the
Guarantee Obligation is limited by its terms to a lesser amount, in which case
to the extent of such amount) or, if not stated or determinable, the reasonably
anticipated liability in respect thereof as determined by the Person in good
faith pursuant to Generally Accepted Accounting Principles.
"Guaranties" means that certain Parent Guaranty dated as of the Agreement
Effective Date executed by Parent in the form attached hereto as Exhibit C-1 and
made a part hereof, and that certain Subsidiary Guaranty dated as of the
Agreement Effective Date executed by the Initial Unencumbered Project
Subsidiaries in the form attached hereto as Exhibit C-2 and made a part hereof,
as such Subsidiary Guaranty may be amended from time to time including by the
joinder of additional Guarantors therein pursuant to a Joinder Agreement
pursuant to Section 5.13.
"Hazardous Materials" means substances defined as "hazardous substances"
pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. Section. 9601 et seq., or as "hazardous", "toxic" or
"pollutant" substances or as "solid waste" pursuant to the Hazardous Materials
Transportation Act, 49 U.S.C. Section. 1801, et seq., the Resource Conservation
and Recovery Act, 42 U.S.C. Section.6901, et seq., or as "friable asbestos"
pursuant to the Toxic Substances Control Act, 15 U.S.C. Section. 2601 et seq. or
any other applicable Hazardous Materials Law, in each case as such Laws are
amended from time to time.
"Hazardous Materials Laws" means all Laws governing the treatment,
transportation or disposal of Hazardous Materials applicable to any of the
Projects.
- 11 -
"Implied Debt Service Amount" means, as of any date, the aggregate annual
amount of principal and interest that would be needed to fully amortize a loan
in the amount of the Total Unsecured Indebtedness as of such date by equal
monthly payments of principal and interest over a 30 year period, using an
annual interest rate equal to the greater of (i) the sum of (A) the then-current
annual yield on obligations of the United States of America Treasury maturing
approximately 10 years after such date plus (B) 2.00% per annum, or (ii) 6.75%
per annum
"Income-Producing Project" means any Project other than an Unstabilized
Project.
"Indebtedness" means, with respect to a Person, at the time of computation
thereof, all of the following (without duplication): (a) all obligations of such
Person in respect of money borrowed; (b) all obligations of such Person, whether
or not for money borrowed (i) represented by notes payable, or drafts accepted,
in each case representing extensions of credit, (ii) evidenced by bonds,
debentures, notes or similar instruments, or (iii) constituting purchase money
indebtedness, conditional sales contracts or other similar instruments, upon
which interest charges are customarily paid or that are issued or assumed as
full or partial payment for Property or services rendered; (c) Capital Lease
Obligations of such Person; (d) all reimbursement obligations of such Person
under any letters of credit or acceptances (whether or not the same have been
presented for payment); (e) all off-balance sheet obligations of such Person;
(f) all obligations of such Person in respect of any repurchase obligation,
takeout commitment or forward equity commitment, in each case evidenced by a
binding agreement (it being understood that the term "Indebtedness" shall not
include trade payables incurred in the ordinary course of business or
obligations of such Person under purchase agreements pertaining to potential
acquisition by such Person of additional real properties (and related assets));
(g) net xxxx to market exposure of such Person under any interest rate
protection agreement (including, without limitation, any interest rate swaps,
caps, floors, collars and similar agreements) and currency swaps and similar
agreements; (h) all Indebtedness of other Persons which such Person has
Guaranteed or is otherwise recourse to such Person (except for guaranties of
customary non-recourse "carve-out" exceptions for fraud, misapplication of
funds, environmental indemnities and other similar exceptions to recourse
liability (but not exceptions relating to bankruptcy, insolvency, receivership
or other similar events)); and (i) all Indebtedness of another Person secured by
any Lien on Property owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness or other payment
obligation. For the avoidance of doubt, Indebtedness shall not include premiums
required by FAS 141 as a result of the assumption of Indebtedness bearing an
interest rate that was above market interest rates at the time of assumption.
"Initial Unencumbered Projects" means the Qualified Unencumbered Projects
so identified in Schedule 4.18.
"Initial Unencumbered Project Subsidiaries" means the Subsidiaries of
Borrower which own Qualified Unencumbered Projects as of the Agreement Effective
Date and have executed the Guaranty.
"Intangible Assets" means assets that are considered intangible assets
under Generally Accepted Accounting Principles, including customer lists,
goodwill, copyrights, trade names, trademarks and patents.
- 12 -
"Interest Coverage Ratio" means, as of any date of determination, the
ratio of (a) Adjusted EBITDA to (b) Interest Expense.
"Interest Expense" means, with respect to the Consolidated Group and
measured as of the last day of the most recent Fiscal Quarter for which
financial results have been reported, the sum of (a) all interest of the
Consolidated Group (whether accrued or paid, without duplication) for such
Fiscal Quarter, excluding any non-cash interest expense, but including any
capitalized interest not funded from the proceeds of a construction loan, plus
(b) the portion of rent paid or payable by the Consolidated Group (without
duplication) for such Fiscal Quarter under Capital Lease Obligations that should
be treated as interest in accordance with Financial Accounting Standards Board
Statement No. 13, plus (c) the Consolidated Group Pro Rata Share of any interest
expense of the type described in clause (a) and clause (b) above of each
Investment Affiliate for such Fiscal Quarter.
"Invested Cash" means all cash equity invested by the Consolidated Group
in an Unstabilized Project, including the purchase price, hard construction
costs and soft costs reasonably acceptable to the Administrative Agent that have
been directly expended toward the acquisition or development of such
Unstabilized Project.
"Investment" means, when used in connection with any Person, any
investment by or of that Person, whether by means of purchase or other
acquisition of stock or other securities of any other Person or by means of a
loan, advance creating a debt, capital contribution, guaranty or other debt or
equity participation or interest in any other Person, including any partnership
and joint venture interests of such Person. The amount of any Investment shall
be the amount actually invested (minus any return of capital with respect to
such Investment which has actually been received in cash or Cash Equivalents or
has been converted into cash or Cash Equivalents), without adjustment for
subsequent increases or decreases in the value of such Investment.
"Investment Affiliate" means any Person in which the Consolidated Group,
directly or indirectly, has either a controlling interest or a ten percent (10%)
or greater ownership interest, whose financial results, in either case, are not
consolidated under GAAP with the financial results of the Consolidated Group.
"Joinder Agreement" means the joinder agreement with respect to the
Guaranty to be executed and delivered pursuant to Section 5.13 by any additional
Subsidiary Guarantor in the form of Exhibit C-3 (with such changes thereto as
the Administrative Agent shall in its discretion reasonably require) either as
originally executed or as it may from time to time be supplemented, modified,
amended, extended or supplanted.
"Xxxxxxx Square A Project" means that certain Project currently owned by a
member of the Consolidated Group and located in Cambridge, Massachusetts.
"KOP Project" means that certain Project currently owned by a member of
the Consolidated Group (sometimes referred to by the Parties as the "King of
Prussia Project") and located in Philadelphia, Pennsylvania.
- 13 -
"Landmark at Eastview Project" means that certain Project currently owned
by a member of the Consolidated Group and located in Westchester County, New
York.
"Laws" means, collectively, all international, foreign, federal, state and
local statutes, treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents.
"Lead Arranger" means KeyBank.
"Letter of Credit" means a standby letter of credit which is payable upon
presentation of a sight draft and other documents, as originally issued pursuant
to this Agreement or as amended, modified, extended, renewed or supplemented
thereafter.
"Letter of Credit Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time plus
(b) the aggregate amount of all unreimbursed drawings under Letters of Credit at
such time.
"Letter of Credit Fee" means the fees payable to the Banks with respect to
a Letter of Credit as described in Section 2.6(e).
"Letter of Credit Request" means the request described in Section 2.6.
"Leverage Ratio" means, as of any day, (a) Consolidated Outstanding
Indebtedness as of such date, divided by (b) Gross Asset Value as of such date,
expressed as a percentage.
"LIBOR Base Rate" means, with respect to a LIBOR Rate Advance for the
relevant LIBOR Period, the applicable British Bankers' Association LIBOR rate
for deposits in Dollars as reported by any generally recognized financial
information service as of 11:00 a.m. (London time) two Banking Days prior to the
first day of such LIBOR Period, and having a maturity equal to such LIBOR
Period, provided that, if no such British Bankers' Association LIBOR rate is
available to the Administrative Agent, the applicable LIBOR Base Rate for the
relevant LIBOR Period shall instead be the rate determined by the Administrative
Agent to be the rate at which KeyBank or one of its Affiliate banks offers to
place deposits in Dollars with first class banks in the London interbank market
at approximately 11:00 a.m. (London time) two Banking Days prior to the first
day of such LIBOR Period, in the approximate amount of the relevant LIBOR Rate
Advance and having a maturity equal to such LIBOR Period.
"LIBOR Lending Office" means, as to each Bank, its office or branch so
designated by written notice to Borrower and the Administrative Agent as its
LIBOR Lending Office. If no LIBOR Lending Office is designated by a Bank, its
LIBOR Lending Office shall be its office at its address for purposes of notices
hereunder.
"LIBOR Period" means, as to each LIBOR Rate Loan, the period commencing on
the date specified by Borrower pursuant to Section 2.1(d) and ending 1, 2, 3 or
6 months (or, with the written consent of all of the Banks, any other period)
thereafter, as specified by Borrower in the applicable Request for Loan;
provided that:
(a) the first day of any LIBOR Period shall be a Banking Day;
- 14 -
(b) any LIBOR Period that would otherwise end on a day that is not a
Banking Day shall be extended to the next succeeding Banking Day unless such
Banking Day falls in another calendar month, in which case such LIBOR Period
shall end on the next preceding Banking Day;
(c) any LIBOR Period which begins on a day for which there is no
numerically corresponding date in the calendar month in which such LIBOR Period
would otherwise end shall instead end on the last Banking Day of such calendar
month; and
(d) no LIBOR Period shall extend beyond the Maturity Date.
"LIBOR Rate" means, as of any date during any LIBOR Period, the sum of (A)
the LIBOR Base Rate applicable to such LIBOR Period divided by one minus the
then-current Reserve Percentage and (B) the then-current Applicable Margin with
respect to LIBOR Rate Loans.
"LIBOR Rate Advance" means an Advance made hereunder and specified to be a
LIBOR Rate Advance in accordance with Article 2.
"LIBOR Rate Loan" means a Loan made hereunder and specified to be a LIBOR
Rate Loan in accordance with Article 2.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance, lien or charge of any
kind, whether voluntarily incurred or arising by operation of Law or otherwise,
affecting any Property, including any conditional sale or other title retention
agreement, any lease in the nature of a security interest, and/or the filing of
any financing statement (other than a precautionary financing statement with
respect to a lease that is not in the nature of a security interest) under the
Uniform Commercial Code or comparable Law of any jurisdiction with respect to
any Property.
"Life Sciences Buildings" means office buildings, office/laboratory
buildings and research or manufacturing/warehouse buildings, the major tenants
of which are primarily medical, pharmaceutical, biotech or other life sciences
companies, or are otherwise affiliated with the life sciences industry.
"Line Commitments" means the commitments of each of the Banks (as
initially specified in Schedule 1.1 hereto) to make Advances to fund Line Loans
under Section 2.1(a) and to participate in Letters of Credit issued under
Section 2.6 and Swing Loans made under Section 2.5, as such commitments may
increase or decrease pursuant to the terms of this Agreement.
"Line Facility" means the Line Loans, Swing Loans and Letters of Credit
made available to Borrower hereunder from time to time by the Banks.
"Line Loan" means any Loan made under the Line Commitment pursuant to
Section 2.1(a).
"Line Note" means any of the promissory notes made by Borrower to a Bank
evidencing Advances under that Bank's Percentage of the Line Commitment,
substantially in the form of Exhibit D-1, either as originally executed or as
the same may from time to time be supplemented, modified, amended, renewed or
extended.
- 15 -
"Loan" means the aggregate of the Advances made at any one time by the
Banks pursuant to Section 2.1 and the Swing Loans made pursuant to Section 2.5.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Guaranties and each Joinder Agreement and any other agreements of any type or
nature hereafter executed and delivered by Borrower or Guarantors to the
Administrative Agent or to any Bank in any way relating to or in furtherance of
this Agreement, in each case either as originally executed or as the same may
from time to time be supplemented, modified, amended, restated, extended or
supplanted.
"Loan Parties" means, collectively, as of any date, Borrower and the
Guarantors.
"Margin Stock" means "margin stock" as such term is defined in Regulation
T, U or X.
"Material Adverse Effect" means (a) a material adverse change in the
status of the business, results of operations or condition (financial or
otherwise) of the Consolidated Group taken as a whole, and/or (b) any set of
circumstances or events which (i) has had or would reasonably be expected to
have a material adverse effect upon the validity or enforceability of any Loan
Document (other than as a result of any action or inaction of the Administrative
Agent or any Bank), or (ii) has materially impaired or would reasonably be
expected to materially impair the ability of Borrower and the Guarantors to
perform the Obligations.
"Maturity Date" means May 30, 2008, or, if the Maturity Date has then been
extended pursuant to Section 2.10, such extended Maturity Date as to the Line
Facility and/or the Term Facility as the case may be.
"Monthly Payment Date" means the first day of each calendar month.
"Moody's" means Xxxxx'x Investor Service, Inc. and its successors.
"Mortgageable Ground Lease" means any lease (a) which is a direct lease
granted by the fee owner of the applicable Project, (b) which has a remaining
term, as of the date such Project becomes a Qualified Unencumbered Project, of
not less than thirty (30) years, including extension options which are
exercisable solely at the discretion of the lessee thereunder, (c) under which
no material default has occurred and is continuing, (d) with respect to which a
leasehold mortgage may be granted, and (e) which the Administrative Agent has
otherwise reasonably determined is financeable.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA to which one or more members of the Consolidated
Group or any of their ERISA Affiliates contribute or are obligated to
contribute.
"Negative Pledge" means a Contractual Obligation (other than the Loan
Documents and the documents executed in connection with the Secured Term Loan
Agreement) that contains a covenant binding on any owner of a Project that
prohibits Liens on any of such owner's Projects, other than any such covenant
contained in a Contractual Obligation (other than the Loan Documents and the
documents executed in connection with the Secured Term Loan Agreement) granting
or relating to a particular Lien on a Project which prohibits further Liens on
such Project and on the direct or indirect ownership interests in the entity
owning such Project.
- 16 -
"Net Capital Expenditures" means with respect to any Person for any fiscal
period, an amount equal to the sum of the amount of capital expenditures paid in
cash by such Person in order to maintain the general condition and operation of
its Projects during such fiscal period, excluding (i) any non-recurring capital
expenditures made to update or enhance building infrastructure or building
systems on such Projects, (ii) expenditures for tenant improvements or
allowances made or given to induce such tenant to lease such Person's Property
and (iii) expenditures directly recoverable from tenants of such Person's
Property after such expenditures have been incurred.
"Net Income" means, with respect to any Person and with respect to any
fiscal period, the net income of that Person for that period, determined in
accordance with Generally Accepted Accounting Principles, consistently applied.
"Net Rentable Area" means with respect to any Project, the floor area of
any buildings, structures or improvements available for leasing to tenants
(excluding storage lockers and parking spaces), as reasonably determined by the
Administrative Agent, the manner of such determination to be consistent for all
Projects unless otherwise approved by the Administrative Agent.
"Net Worth" means, as of any day, (a) Gross Asset Value as of such date
minus (b) Consolidated Outstanding Indebtedness as of such date.
"New Tenant" means, with respect to any Income-Producing Project for any
Fiscal Quarter, a tenant of such Project which first took occupancy of its
premises at such Project and commenced paying rent at any time during the period
from the second day of such Fiscal Quarter through and including the thirtieth
(30th) day after the end of such Fiscal Quarter.
"NOI" means, with respect to any Project for any applicable Fiscal
Quarter, the sum of (i) actual rental income for such Fiscal Quarter
attributable to Continuing Tenants and New Tenants; (ii) with respect to any New
Tenant, an imputed amount of net rental income for those days during such Fiscal
Quarter during which such New Tenant was not in occupancy and paying rent based
on the per diem net rental income being paid by such New Tenant as of the
commencement of its obligation to pay rent on its lease; (iii) all actual
expense reimbursements received from such tenants for such Fiscal Quarter; and
(iv) all actual other income for such Fiscal Quarter less (A) actual operating
expenses for such Fiscal Quarter (excluding from operating expenses, any
allocation of general and administrative expenses related to the operations of
the Consolidated Group and its Investment Affiliates), (B) actual management
fees payable with respect to such Project for such Fiscal Quarter and (C) any
actual or imputed rental income for such Fiscal Quarter attributable to Excluded
Tenants, provided, however, that in the case of any such Project owned by an
Investment Affiliate, only the Consolidated Group Pro Rata Share of the
foregoing amount attributable to such Project shall be included in "NOI".
"Non-Recourse Indebtedness" means Indebtedness for which the liability of
the obligor thereunder (except with respect to fraud, Hazardous Materials Laws
liability and other customary non-recourse "carve-out" exceptions) either is
contractually limited to collateral securing such Indebtedness or is so limited
by operation of Law.
"Notes" means, collectively, the Line Notes, the Swing Loan Note and the
Term Notes.
- 17 -
"Obligations" means all present and future obligations of every kind or
nature of Borrower at any time and from time to time owed to the Administrative
Agent or the Banks or any one or more of them, under any one or more of the Loan
Documents, whether due or to become due, matured or unmatured, liquidated or
unliquidated, or contingent or noncontingent, including obligations of
performance as well as obligations of payment, and including interest that
accrues after the commencement of any proceeding under any Debtor Relief Law by
or against any member of the Consolidated Group.
"Opinions of Counsel" means the favorable written legal opinions of Xxxxxx
& Xxxxxxx LLP and Xxxxxxx LLP, counsel to Borrower, in form and substance
reasonably satisfactory to the Administrative Agent.
"Outstanding Line Amount" means, as of any date, the aggregate of all Line
Loans, Swing Loans and Letter of Credit Exposure outstanding on such date.
"Outstanding Term Amount" means, as of any date, the aggregate of all Term
Loans outstanding on such date.
"Parent" means BioMed Realty Trust, Inc., a Maryland corporation.
"Party" means any Person other than the Administrative Agent and the
Banks, which now or hereafter is a party to any of the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereof established under ERISA.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, which is
subject to Title IV of ERISA and with respect to the Consolidated Group is
maintained by a member of the Consolidated Group or to which a member of the
Consolidated Group contributes or has an obligation to contribute.
"Percentage" means, with respect to each Bank, the percentage derived by
dividing that Bank's aggregate Line Commitment and Term Commitment by the sum of
the Aggregate Line Commitment and the Aggregate Term Commitment.
"Permitted Business Activities" means the acquisition, development,
renovation, ownership, leasing, sale and operation of Life Sciences Buildings
(including Unstabilized Projects that will be used as Life Sciences Buildings
following completion of development) plus free-standing parking garages that
serve such Life Sciences Buildings, in the case of the 47 Erie Parking Garage in
Cambridge, Massachusetts and any such parking garage that may be acquired as
part of a future acquisition of Life Sciences Buildings, so long as Borrower has
obtained the prior written approval of the Administrative Agent to the inclusion
of such garage, such approval not to be unreasonably withheld, conditioned or
delayed.
"Permitted Liens" is defined in Section 6.14.
- 18 -
"Person" means any individual or entity, including a trustee, corporation,
limited liability company, general partnership, limited partnership, joint stock
company, trust, estate, unincorporated organization, business association, firm,
joint venture, Governmental Agency, or other entity.
"Preferred Distributions" means, as of any date with respect to any
Person, the Distributions due and payable to the holders of Preferred Equity in
such Person for the most recent Fiscal Quarter for which financial results have
been reported.
"Preferred Equity" means, with respect to any Person, any form of
preferred stock (whether perpetual, convertible or otherwise) or other ownership
or beneficial interest in such Person that entitles the holders thereof to
preferential payment or distribution priority with respect to dividends, assets
or other payments over the holders of any other stock or other ownership or
beneficial interest in such Person.
"Prime Rate" means a rate per annum equal to the prime rate of interest
publicly announced from time to time by KeyBank or its parent as its prime rate
(which is not necessarily the lowest rate charged to any customer), changing
when and as said prime rate changes. In the event that there is a successor to
the Administrative Agent by merger, or the Administrative Agent assigns its
duties and obligations to an Affiliate, then the term "Prime Rate" as used in
this Agreement shall mean the prime rate, base rate or other analogous rate of
the new Administrative Agent.
"Project" means any parcel of real property located in the 48 states that
comprise the continental United States of America or in the District of Columbia
which is owned, leased or operated (in each case in whole or in part) by
Borrower, or any of its Subsidiaries or Investment Affiliates and which is
either (i) improved with completed Life Sciences Buildings or (ii) held for the
development of Life Sciences Buildings, or (iii) a free-standing parking garage
serving such Life Sciences Buildings in the case of the 47 Erie Parking Garage
in Cambridge, Massachusetts, and any other parking garages acquired hereafter
with the prior approval of the Administrative Agent, as provided above.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Qualified Unencumbered Project" means an Income-Producing Project or an
Unstabilized Project that (a) other than as specified below with respect to the
Exception Projects, is wholly owned in fee simple by Borrower or a Guarantor
that is a Wholly-Owned Subsidiary of Borrower, (b) is leased in accordance with
Section 5.17, (c) does not have any title, survey, environmental or other
defects that would reasonably be expected to materially impair the value, use of
or ability to sell or refinance such Project, (d) is Unencumbered, and (e) would
not cause Borrower to be in violation of the covenants set forth in Section
5.17. Notwithstanding clause (a) of the preceding sentence, (i) with respect to
the Landmark at Eastview Project, Borrower or a Guarantor that is a Wholly-Owned
Subsidiary of Borrower may own a leasehold interest (as opposed to a fee simple
interest) pursuant to a Mortgageable Ground Lease in such Project, and (ii) with
respect to the KOP Project, Borrower or a Guarantor which is a Wholly-Owned
Subsidiary of Borrower need not own such Project directly, provided that
Borrower or a Guarantor that is a Wholly-Owned Subsidiary of Borrower (A) owns
at least 89% of the equity interests of the Person that owns such KOP Project
and (B) receives as a return on equity or debt 100% of the cash flow from such
KOP Project.
- 19 -
Notwithstanding clause (d) of the second preceding sentence, the Project located
at 00000 Xxxxxxxx Xxxx is currently held by a Wholly-Owned Subsidiary that is
subject to a Negative Pledge as a result of its ownership of another Project
which is encumbered. Borrower hereby agrees to convey such Project to another
Wholly-Owned Subsidiary which is not subject to any Negative Pledge within
forty-five (45) days after the Agreement Effective Date.
"Regulation D" means Regulation D, as at any time amended, of the Board of
Governors of the Federal Reserve System, or any other regulation in substance
substituted therefor.
"Regulations T, U and X" means Regulations T, U and X, as at any time
amended, of the Board of Governors of the Federal Reserve System, or any other
regulations in substance substituted therefor.
"Related Facilities" is defined in Section 6.12.
"Request for Loan" means a written request for a Loan substantially in the
form of Exhibit E, signed by a Senior Officer of Borrower, and properly
completed to provide all information required to be included therein.
"Requirement of Law" means, as to any Person, the articles or certificate
of incorporation and by-laws or other organizational or governing documents of
such Person, and any Law, or judgment, award, decree, writ or determination of a
Governmental Agency, in each case applicable to or binding upon such Person or
any of its Property or to which such Person or any of its Property is subject.
"Requisite Banks" means (a) as of any date of determination if the
Commitments are then in effect, Banks having in the aggregate 66-2/3% or more of
the Commitments then in effect and (b) as of any date of determination if the
Commitments have then been suspended or terminated, Banks holding Advances and
participation interests in Letters of Credit and Swing Loans evidencing in the
aggregate 66-2/3% or more of the aggregate Outstanding Term Amount and
Outstanding Line Amount.
"Reserve Percentage" means for any day with respect to a LIBOR Rate Loan,
the maximum rate (expressed as a decimal) at which any lender subject thereto
would be required to maintain reserves (including, without limitation, all base,
supplemental, marginal and other reserves) under Regulation D against
"Eurocurrency Liabilities" (as that term is used in Regulation D), if such
liabilities were outstanding. The Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Percentage.
"Responsible Official" means (a) when used with reference to a Person
other than an individual, any corporate officer of such Person, general partner
or managing member of such Person, corporate officer of a corporate general
partner or managing member of such Person, or corporate officer of a corporate
general partner of a partnership that is a general partner of such Person or
corporate managing member of a limited liability company that is a managing
member of such Person, or any other responsible official thereof duly acting on
behalf thereof, and (b) when used with reference to a Person who is an
individual, such Person. The Administrative Agent and the Banks shall be
entitled to conclusively rely upon any document or certificate that is signed or
- 20 -
executed by a Responsible Official of Parent or any of its Subsidiaries as
having been authorized by all necessary corporate, partnership and/or other
action on the part of Parent or such Subsidiary.
"S&P" means Standard & Poor's Rating Group or its successors.
"Secured Indebtedness" means any Indebtedness of a Person that is secured
by a Lien on a Project or on any ownership interests in any other Person or on
any other assets, provided that the portion of such Indebtedness included in
"Secured Indebtedness" shall not exceed the aggregate value of the assets
securing such Indebtedness at the time such Indebtedness was incurred.
"Secured Term Loan Agreement" means that certain Secured Term Loan
Agreement of even date herewith by and among Borrower, KeyBank and certain other
lenders identified therein, as it may be amended or modified from time to time.
"Senior Officer" means (a) the chief executive officer, (b) the chairman,
(c) the chief financial officer or (d) the executive vice president, of any of
the members of the Consolidated Group or of any of their corporate general
partners or managing members, as applicable.
"Special LIBOR Circumstance" means the application or adoption after the
Closing Date of any Law or interpretation, or any change therein or thereof, or
any change in the interpretation or administration thereof by any Governmental
Agency, central bank or comparable authority charged with the interpretation or
administration thereof, or compliance by any Bank or its LIBOR Lending Office
with any request or directive (whether or not having the force of Law) of any
such Governmental Agency, central bank or comparable authority.
"Stabilization" means, as of any date with respect to any Project, that
such Project either (i) has been substantially completed one (1) year or more
prior to such date or (ii) has, as of such date, tenants in occupancy of
eighty-five percent (85%) or more of the Net Rentable Area thereof, each of
which is either paying rent or is obligated to begin paying rent not later than
ninety (90) days after the commencement date of such tenant's lease.
"Subsidiary" means, as of any date of determination and with respect to
any Person, (a) any corporation, limited liability company, partnership or other
Person (whether or not, in any case, characterized as such or as a joint
venture), whether now existing or hereafter organized or acquired: (i) in the
case of a corporation, of which a majority of the securities having ordinary
voting power for the election of directors or other governing body (other than
securities having such power only by reason of the happening of a contingency)
are at the time beneficially owned by such Person and/or one or more
Subsidiaries of such Person, or (ii) in the case of a partnership or limited
liability company, of which a majority of the partnership, membership or other
ownership interests are at the time beneficially owned by such Person and/or one
or more of its Subsidiaries; and (b) any other Person the accounts of which are
consolidated with the accounts of the designated parent.
"Subsidiary Guarantor" means, as of any date, any of those Subsidiaries
that are a party to the Guaranties.
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"Swap Agreement" means a written agreement between Borrower and one or
more financial institutions, including without limitation, KeyBank, providing
for "swap", "cap", "collar" or other interest rate protection with respect to
any Indebtedness.
"Swing Loan Bank" means KeyBank, in its capacity as the Swing Loan Bank
under this Agreement.
"Swing Loan Commitment" means the greater of (i) $37,500,000 or (ii)
fifteen percent (15%) of the then-effective Line Commitment, subject to possible
reduction as provided for in Section 2.7 in the case of any reductions in the
Line Commitment made by Borrower.
"Swing Loan Note" means the note described in Section 2.5.
"Swing Loans" means those Loans described in Section 2.5 that are made or
to be made by the Swing Loan Bank and evidenced by the Swing Loan Note.
"Term Commitment" means, with respect to any Bank, the amount shown as
such Bank's Term Commitment on Schedule 1.1, as adjusted from time to time
pursuant to any Commitments Assignment and Acceptance entered into by such Bank.
"Term Facility" means the Term Loans made available to Borrower hereunder
pursuant to Section 2.1(b).
"Term Loan" means any Loan made under the Term Commitment pursuant to
Section 2.1(b).
"Term Note" means any of the promissory notes made by Borrower to a Bank
evidencing Advances under that Bank's Percentage of the Term Commitment
substantially in the form of Exhibit D-2, either as originally executed or as
the same may from time to time be supplemented, modified, amended, renewed or
extended.
"Total Unsecured Indebtedness" means, as of any date, (A) all Consolidated
Outstanding Indebtedness (including without limitation all Indebtedness under
this Agreement) less (B) all Secured Indebtedness of the Consolidated Group
(including, without limitation all Indebtedness under the Secured Term Loan
Agreement) and less (C) the Consolidated Group Pro Rata Share of all Secured
Indebtedness of Investment Affiliates.
"to the best knowledge of" means, when modifying a representation,
warranty or other statement of any Person, that the fact or situation described
therein is known by the Person (or, in the case of a Person other than a natural
Person, known by a Responsible Official of that Person) making the
representation, warranty or other statement, or with the exercise of reasonable
due diligence under the circumstances (in accordance with the standard of what a
reasonable Person in similar circumstances would have done) would have been
known by the Person (or, in the case of a Person other than a natural Person,
would have been known by a Responsible Official of that Person).
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"type", when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance (i) is being made under the Line
Facility or the Term Facility and (ii) is an Alternate Base Rate Loan or Advance
or a LIBOR Rate Loan or Advance.
"Unencumbered" means, with respect to any property, that such property (a)
is not subject to any Lien other than Permitted Liens which do not secure
Indebtedness, (b) is not subject to any Negative Pledge and (c) is not held by a
Person any of whose direct or indirect equity interests are subject to a Lien or
Negative Pledge.
"Unencumbered Pool" means, as of any date of determination, (a) the
Initial Unencumbered Projects, plus (b) each other Qualified Unencumbered
Project which has been added to the Unencumbered Pool pursuant to Section 2.11
as of such date, minus (c) any Project which has been removed from the
Unencumbered Pool pursuant to Section 2.11 as of such date, (d) minus any
Project which has been removed from the Unencumbered Pool pursuant to the next
sentence hereof as of such date (and plus any Qualified Unencumbered Project
which has been added back into the Unencumbered Pool pursuant to the next
sentence hereof). In the event that all or any material portion of an
Income-Producing Project then within the Unencumbered Pool shall be damaged or
taken by condemnation, then such Project shall no longer be a part of the
Unencumbered Pool unless and until any damage to such Project is repaired or
restored, such Income-Producing Project becomes fully operational and the
Administrative Agent shall receive evidence satisfactory to the Administrative
Agent of the Adjusted Current Value and NOI of such Income-Producing Project
following such repair or restoration. In the event that all or any material
portion of an Unstabilized Project then within the Unencumbered Pool shall be
damaged or taken by condemnation, then the Administrative Agent may reduce the
amount of the Borrowing Base in an amount which the Administrative Agent
reasonably deems appropriate in light of such damage or condemnation; or may
remove such Unstabilized Project from the Unencumbered Pool unless and until
such Unstabilized Project is repaired or restored to the Administrative Agent's
reasonable satisfaction.
"Unsecured Debt Service Coverage Ratio" means, as of any date, (a) an
amount equal to Adjusted Unencumbered NOI divided by (b) the Implied Debt
Service Amount.
"Unstabilized Project" means, as of any date, a Project that either is
currently under construction or has been recently completed (as to its initial
construction) but has not yet reached Stabilization. Once a Project has reached
Stabilization, whether by passage of time or leasing and occupancy, it shall not
thereafter qualify as an Unstabilized Project.
"Unused Fee Percentage" means, with respect to any day during a calendar
quarter, (i) 0.125% per annum, if the Outstanding Line Amount on such day is 50%
or more of the Aggregate Line Commitment or (ii) 0.20% per annum, if the
Outstanding Line Amount on such day is less than 50% of the Aggregate Line
Commitment.
"Wholly-Owned Subsidiary" means, with respect to any Person, a Subsidiary
of such Person, 100% of the capital stock or other equity interest of which is
owned, directly or indirectly, by such Person.
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1.2 Use of Defined Terms. Any defined term used in the plural shall refer
to all members of the relevant class, and any defined term used in the singular
shall refer to any one or more of the members of the relevant class.
1.3 Accounting Terms. All accounting terms not specifically defined in
this Agreement shall be construed in conformity with, and all financial data
required to be submitted by this Agreement shall be prepared in conformity with,
Generally Accepted Accounting Principles applied on a consistent basis, except
as otherwise specifically prescribed herein. In the event that Generally
Accepted Accounting Principles change during the term of this Agreement such
that the covenants contained in Sections 6.5 through 6.15, inclusive, would then
be calculated in a different manner or with different components, (a) Borrower
and the Banks agree to amend this Agreement in such respects as are necessary to
conform those covenants as criteria for evaluating Borrower's financial
condition to substantially the same criteria as were effective prior to such
change in Generally Accepted Accounting Principles and (b) Borrower shall be
deemed to be in compliance with the covenants contained in the aforesaid
Sections if and to the extent that Borrower would have been in compliance
therewith under Generally Accepted Accounting Principles as in effect
immediately prior to such change, but shall have the obligation to deliver each
of the materials described in Article 7 to the Administrative Agent and the
Banks, on the dates therein specified, with financial data presented in a manner
which conforms with Generally Accepted Accounting Principles as in effect
immediately prior to such change.
1.4 Exhibits and Schedules. All Exhibits and Schedules to this Agreement,
either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.5 Miscellaneous Terms. The term "or" is disjunctive; the term "and" is
conjunctive. The term "shall" is mandatory; the term "may" is permissive.
Masculine terms also apply to females; feminine terms also apply to males. The
term "including" is by way of example and not limitation.
ARTICLE 2
LOANS
2.1 Loans General.
(a) Subject to the terms and conditions set forth in this Agreement,
at any time and from time to time from the Closing Date through the Maturity
Date, each Bank shall, pro rata according to that Bank's Percentage of the then
applicable Line Commitment, make Advances to Borrower under the Line Commitment
in such amounts as Borrower may request that do not result in (A) the
Outstanding Line Amount exceeding the Aggregate Line Commitment or (B) the sum
of (i) the Outstanding Line Amount (after giving effect to all amounts requested
thereunder) plus (ii) the Outstanding Term Amount being in excess of the
Facility Availability Amount, provided that in all events no Default or Event of
Default shall have occurred and be continuing and all conditions to Advances
hereunder shall have been satisfied. Subject to the limitations set forth
herein, Borrower may borrow, repay and reborrow under the Line Commitment
without premium or penalty.
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(b) Subject to the terms and conditions set forth in this Agreement,
on the Closing Date the Lenders shall, pro rata according to each Lender's
Percentage, make a single Term Loan to Borrower in the full amount of the
Aggregate Term Commitment, provided that in all events no Default or Event of
Default shall have occurred and be continuing and all conditions to Advances
hereunder shall have been satisfied. Borrower may not reborrow all or any
portion of the Term Loan once repaid.
(c) The obligation of each Bank to make Advances in accordance with
its respective Commitments is several, and not joint and several; and no Bank
shall be obligated to advance more than its respective Commitments,
notwithstanding the default of any other Bank.
(d) Each Loan shall be made pursuant to a Request for Loan which
shall specify the requested (i) date of such Loan (which must be a Banking Day),
(ii) type of Loan, (iii) amount of such Loan, and (iv) in the case of a LIBOR
Rate Loan, LIBOR Period for such Loan.
(e) Promptly following receipt of a Request for Loan, the
Administrative Agent shall (by the end of business on the same day that the
request was received) notify each Bank of the date and type of the Loan, the
applicable LIBOR Period, and that Bank's Percentage of the Loan. Not later than
1:00 p.m., Cleveland time, on the date specified for any Loan (which must be a
Banking Day), each Bank shall make its Percentage of the Loan in immediately
available funds available to the Administrative Agent at the Administrative
Agent's Office. Upon satisfaction or waiver of the applicable conditions set
forth in Article 8, all Advances shall be credited on that date in immediately
available funds to the Designated Deposit Account.
(f) Unless the Requisite Banks otherwise consent, each Alternate
Base Rate Loan shall be not less than $1,000,000, each LIBOR Rate Loan shall be
not less than $1,000,000 and all Loans shall be in an integral multiple of
$250,000.
(g) The Advances made by each Bank under its Line Commitment shall
be evidenced by that Bank's Line Note.
(h) The Advances made by each Bank under its Term Commitment shall
be evidenced by that Bank's Term Note.
(i) A Request for Loan shall be irrevocable upon the Administrative
Agent's first notification thereof.
(j) If no Request for Loan has been made within the requisite notice
periods set forth in Section 2.2 or 2.3 prior to the end of the LIBOR Period for
any LIBOR Rate Loan, then on the last day of such LIBOR Period, such LIBOR Rate
Loan shall be automatically converted into an Alternate Base Rate Loan in the
same amount.
2.2 Alternate Base Rate Loans. Each request by Borrower for an Alternate
Base Rate Loan shall be made pursuant to a Request for Loan received by the
Administrative Agent, at the Administrative Agent's Office, not later than 1:00
p.m., Cleveland time, on the Banking Day immediately prior to the date of the
requested Alternate Base Rate Loan. All Loans shall constitute Alternate Base
Rate Loans unless properly designated as a LIBOR Rate Loan pursuant to Section
2.3.
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2.3 LIBOR Rate Loans.
(a) Each request by Borrower for a LIBOR Rate Loan shall be made
pursuant to a Request for Loan received by the Administrative Agent, at the
Administrative Agent's Office, not later than 1:00 p.m., Cleveland time, at
least three (3) Banking Days before the first day of the applicable LIBOR
Period.
(b) On the date which is two (2) Banking Days before the first day
of the applicable LIBOR Period, the Administrative Agent shall confirm its
determination of the applicable LIBOR Rate (which determination shall be
conclusive in the absence of manifest error) and promptly shall give notice of
the same to Borrower and the Banks.
(c) Unless the Administrative Agent and the Requisite Banks
otherwise consent, there shall be no more than six (6) LIBOR Periods in effect
at any one time.
(d) No LIBOR Rate Loan may be requested or continued during the
continuation of a Default or Event of Default.
(e) Nothing contained herein shall require any Bank to fund any
LIBOR Rate Advance in the London interbank market.
2.4 [Intentionally Omitted.]
2.5 Swing Loan Commitments.
(a) Subject to the terms and conditions set forth in this Agreement,
Swing Loan Bank agrees to lend to Borrower (the "Swing Loans"), and Borrower may
borrow (and repay and reborrow) from time to time between the Closing Date and
the date which is thirty (30) Banking Days prior to the Maturity Date upon
notice by Borrower to the Swing Loan Bank given in accordance with this Section
2.5 such sums as are requested by Borrower for the purposes set forth in Section
5.9 that do not result in (i) an aggregate principal amount of Swing Loans at
any one time outstanding being in excess of the Swing Loan Commitment, or (ii)
the aggregate principal amount outstanding under the Notes (after giving effect
to all amounts requested thereunder) plus the Letter of Credit Exposure being in
excess of the Facility Availability Amount. Swing Loans shall constitute "Line
Loans" for all purposes hereunder, but shall not be considered the utilization
of a Bank's Percentage of the Aggregate Line Commitments. The funding of a Swing
Loan hereunder shall constitute a representation and warranty by Borrower that
all of the conditions set forth in Article 8 have been satisfied on the date of
such funding (other than advance notice requirements).
(b) The Swing Loans shall be evidenced by a separate promissory note
of Borrower in substantially the form of Exhibit F hereto (the "Swing Loan
Note"), dated the date of this Agreement and completed with appropriate
insertions. The Swing Loan Note shall be payable to the order of the Swing Loan
Bank in such amount as may be outstanding from time to time thereunder and shall
be payable as set forth below. The Borrower irrevocably authorizes the Swing
Loan Bank to make or cause to be made, at or about the time of the date of any
Swing Loan or at the time of receipt of any payment of principal thereof, an
appropriate notation on the Swing Loan Bank's record reflecting the making of
such Swing Loan or (as the case may be) the receipt of such payment. The
outstanding amount of the Swing Loans set forth on the Swing Loan Bank's record
- 26 -
shall be prima facie evidence of the principal amount thereof owing and unpaid
to the Swing Loan Bank, but the failure to record, or any error in so recording,
any such amount on the Swing Loan Bank's record shall not limit or otherwise
affect the obligations of Borrower hereunder or under the Swing Loan Note to
make payments of principal of or interest on any Swing Loan Note when due.
(c) Each borrowing of a Swing Loan shall be subject to the limits
for Alternate Base Rate Loans set forth in this Agreement. The Borrower shall
request a Swing Loan by delivering to the Swing Loan Bank a Request for Loan no
later than 2:00 p.m. (Cleveland time) on the requested date specifying the
amount of the requested Swing Loan. Each such Request for Loan shall be
irrevocable and binding on Borrower and shall obligate Borrower to accept such
Swing Loan on the requested date. Notwithstanding anything herein to the
contrary, a Swing Loan shall be an Alternate Base Rate Loan that shall bear
interest at the Alternate Base Rate. The proceeds of the Swing Loan will be made
available by the Swing Loan Bank to Borrower at the Administrative Agent's
Office (on the same Banking Day that the Request for Loan was received, if
received prior to the deadline stated above on such day) by crediting the
account of Borrower at such office with such proceeds.
(d) The Swing Loan Bank shall within five (5) Banking Days after the
date a Swing Loan is made, request each Bank, including the Swing Loan Bank, to
make a Line Loan pursuant to Section 2.1(a) in an amount equal to such Bank's
Percentage of the amount of the Swing Loan outstanding on the date such notice
is given. The Borrower hereby irrevocably authorizes and directs the Swing Loan
Bank to so act on its behalf, and agrees that any amount advanced to the
Administrative Agent for the benefit of the Swing Loan Bank pursuant to this
Section 2.5(d) shall be considered a Line Loan pursuant to Section 2.1(a).
Unless any of the events described in Section 9.1(j) shall have occurred (in
which event the procedures of Section 2.5(e) shall apply), each Bank shall make
the proceeds of its Line Loan available to the Swing Loan Bank for the account
of the Swing Loan Bank at the Administrative Agent's Office prior to 1:00 p.m.
(Cleveland time) in funds immediately available no later than the next Banking
Day after the date such notice is given just as if the Banks were funding an
Alternate Base Rate Loan directly to Borrower, so that thereafter such
Obligations shall be evidenced by the Line Notes. The proceeds of such Line Loan
shall be immediately applied to repay the Swing Loans.
(e) If prior to the making of a Line Loan pursuant to Section 2.5(d)
by all of the Banks, one of the events described in Section 9.1(j) shall have
occurred, each Bank will, on the date such Line Loan pursuant to Section 2.5(d)
was to have been made, purchase an undivided participating interest in the Swing
Loan in an amount equal to its Percentage of such Swing Loan. Each Bank will
immediately transfer to the Swing Loan Bank in immediately available funds the
amount of its participation and upon receipt thereof the Swing Loan Bank will
deliver to such Bank a Swing Loan participation certificate dated the date of
receipt of such funds and in such amount.
(f) Whenever at any time after the Swing Loan Bank has received from
any Bank such Bank's participating interest in a Swing Loan, the Swing Loan Bank
receives any payment on account thereof, the Swing Loan Bank will distribute to
such Bank its participating interest in such amount (appropriately adjusted in
the case of interest payments to reflect the period of time during which such
Bank's participating interest was outstanding and funded); provided, however,
that in the event that such payment received by the Swing Loan Bank is required
to be
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returned, such Bank will return to the Swing Loan Bank any portion thereof
previously distributed by the Swing Loan Bank to it.
(g) Each Bank's obligation to fund a Line Loan as provided in
Section 2.5(d) or to purchase participating interests pursuant to Section 2.5(e)
shall be absolute and unconditional and shall not be affected by any
circumstance (except only the failure of the Swing Loan Bank to make the request
described in Section 2.5(d)), including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Bank or Borrower may
have against the Swing Loan Bank, Borrower or anyone else for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default; (iii) any adverse change in the condition (financial or otherwise) of
Borrower or any other member of the Consolidated Group; (iv) any breach of this
Agreement or any of the other Loan Documents by any Bank; (v) the failure to
satisfy all of the conditions to disbursement set forth in Article 8; or (vi)
any other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing. No such funding or purchase by a Bank under the preceding
sentence shall be deemed to be a waiver of any claim that a Bank may otherwise
have against the Administrative Agent pursuant to the terms of this Agreement.
The provisions of Section 2.9 shall apply to any Bank which fails or refuses to
make a Line Loan or fund its participation as provided herein. Each Swing Loan,
once so converted, shall cease to be a Swing Loan for the purposes of this
Agreement, but shall be a Line Loan made by each Bank under its Commitment.
2.6 Letters of Credit.
(a) Subject to the terms and conditions set forth in this Agreement,
at any time and from time to time from the Closing Date through the day that is
thirty (30) Banking Days prior to the Maturity Date, the Administrative Agent
(including any successor Administrative Agent that takes over such position from
KeyBank) shall issue such Letters of Credit as Borrower may request, for the
purposes provided in Section 5.9, upon the delivery of a written request in the
form of Exhibit G hereto (a "Letter of Credit Request") to the Administrative
Agent, provided that (i) upon issuance of such Letter of Credit, the Letter of
Credit Exposure shall not exceed the greater of (A) $37,500,000 and (B) fifteen
percent (15%) of the then-effective Line Commitment, (ii) the aggregate
principal amount outstanding under the Notes (after giving effect to all amounts
requested thereunder) plus the Letter of Credit Exposure shall not exceed the
Facility Availability Amount, (iii) the conditions set forth in Article 8 shall
have been satisfied, and (iv) in no event shall any amount drawn under a Letter
of Credit be available for reinstatement or a subsequent drawing under such
Letter of Credit. Unless the Administrative Agent otherwise consents, the term
of any Letter of Credit shall not exceed the lesser of twelve (12) months or a
period of time commencing on the issuance of the Letter of Credit and ending on
the Banking Day which is immediately prior to the Maturity Date, provided that
any such Letter of Credit may contain an automatic extension or renewal clause,
so long as the final expiration date of such Letter of Credit shall not be later
than the Banking Day immediately preceding the Maturity Date. The amount
available to be drawn under any Letter of Credit shall reduce on a dollar for
dollar basis the amount available to be drawn under the Commitments as a Loan.
(b) Each Letter of Credit Request shall be submitted to the
Administrative Agent at least three (3) Banking Days prior to the date upon
which the requested Letter of Credit is to be issued. Each such Letter of Credit
Request shall contain (i) a statement as to the purpose for which
- 28 -
such Letter of Credit shall be used (which purpose shall be in accordance with
the terms of Section 5.9), and (ii) a certification by a Responsible Official of
Borrower that Borrower is and will be in compliance with all covenants under the
Loan Documents after giving effect to the issuance of such Letter of Credit.
Borrower shall further deliver to the Administrative Agent such additional
applications and documents as the Administrative Agent may require, in
conformity with the then standard practices of its letter of credit department
in connection with the issuance of such Letter of Credit; provided that in the
event of any conflict, the terms of this Agreement shall control.
(c) The Administrative Agent shall, if it approves of the content of
the Letter of Credit Request (which approval shall not be unreasonably withheld,
conditioned or delayed), and subject to the conditions set forth in this
Agreement, issue the Letter of Credit. Each Letter of Credit shall be in form
and substance satisfactory to the Administrative Agent in its reasonable
discretion. Upon issuance of a Letter of Credit, the Administrative Agent shall
promptly notify the Banks of such issuance and shall provide copies of each
Letter of Credit Request and the corresponding Letter of Credit to any Bank
which requests same.
(d) Upon the issuance of a Letter of Credit, each Bank shall be
deemed to have purchased a participation therein from the Administrative Agent
in an amount equal to its respective Percentage of the amount of such Letter of
Credit, provided that no Bank shall be obligated to transfer funds in such
amount to the Administrative Agent at such time.
(e) Upon the issuance of each Letter of Credit, Borrower shall pay
to the Administrative Agent (i) for its own account, an issuance fee equal to
the greater of (A) $1,500 or (B) one eighth of one percent (0.125%) per annum to
be calculated on the face amount of each Letter of Credit for the stated
duration thereof, based on the actual number of days and using a 360-day year
basis, payable by Borrower on the issuance of each such Letter of Credit and on
the date of any increase therein or extension thereof, plus all reasonable out
of pocket costs and the Administrative Agent's standard charges of issuing,
amending and servicing such Letter of Credit and processing draws thereunder,
and (ii) for the accounts of the Banks in accordance with their Percentages in
such Letter of Credit, a "Letter of Credit Fee" calculated at the rate of the
Applicable Margin per annum in effect from time to time with respect to LIBOR
Rate Loans on the face amount of such Letter of Credit during the period from
and including the issuance date of such Letter of Credit to its expiration or
termination date. The Letter of Credit Fee payable to the Banks shall be
computed on the basis of a year of 360 days and shall be payable quarterly in
arrears as of the first day of each calendar quarter (commencing with the first
calendar quarter following the date of issuance of the Letter of Credit) and on
the Maturity Date of the Line Facility.
(f) If and to the extent that any amounts are drawn upon any Letter
of Credit, the amounts so drawn shall, from the date of payment thereof by the
Administrative Agent to either the date of reimbursement thereof by Borrower or
repayment through a borrowing by Borrower of a Line Loan, bear interest at the
Alternate Base Rate. Upon the receipt by the Administrative Agent of any draw or
other presentation for payment of a Letter of Credit and the payment by the
Administrative Agent of any amount under a Letter of Credit which is not
reimbursed by Borrower within twenty four (24) hours of receipt of notice from
the Administrative Agent of such draw, the Administrative Agent shall, without
further notice to or the consent of Borrower, direct the Banks to fund to the
Administrative Agent in accordance with Section 2.9 on or before 1:00 p.m.
(Cleveland time) on the next Banking Day following Borrower's failure to
reimburse the Administrative Agent,
- 29 -
their respective Percentage of the amount so paid by the Administrative Agent as
a Line Loan. The proceeds of such funding shall be paid to the Administrative
Agent to reimburse the Administrative Agent for the payment made by it under the
Letter of Credit and shall thereafter be evidenced by the Line Notes. The
provisions of Section 2.9 shall apply to any Bank or Banks failing or refusing
to fund its Percentage of any such draw. The Banks shall be required to make
such Line Loans regardless of whether all of the conditions to disbursement set
forth in Article 8 have been satisfied, provided that the making of such Line
Loans shall not be deemed to be a waiver of any claim that a Bank may otherwise
have against the Administrative Agent pursuant to this Agreement.
(g) If, following a draw under any Letter of Credit, but prior to
the making of a Line Loan with respect thereto under Section 2.6(f) above, one
of the events described in Section 9.1(j) shall have occurred, each Bank will
promptly pay to the Administrative Agent in immediately available funds its
Percentage of the amount drawn under such Letter of Credit, and upon receipt
thereof the Administrative Agent will deliver to such Bank a Letter of Credit
participation certificate dated the date of receipt of such funds and in such
amount funded by such Bank. The provisions of Section 2.9 shall apply to any
Bank which fails or refuses to fund its participation as provided herein.
(h) Whenever at any time after the Administrative Agent has received
from any Bank such Bank's payment of funds for its participating interest under
a Letter of Credit, the Administrative Agent receives any payment on account
thereof, the Administrative Agent will distribute to such Bank its participating
interest in such amount (appropriately adjusted in the case of interest payments
to reflect the period of time during which such Bank's participating interest
was outstanding and funded); provided, however, that in the event that such
payment received by the Administrative Agent is required to be returned, such
Bank will return to the Administrative Agent any portion thereof previously
distributed by the Administrative Agent to it.
(i) Unless otherwise approved by the Administrative Agent, each
Letter of Credit shall be in an amount of not less than $100,000. (j) The
issuance of any supplement, modification, amendment, renewal or extension to or
of any Letter of Credit shall be treated in all respects the same as the
issuance of a new Letter of Credit.
(k) The obligations of Borrower to the Banks and the Administrative
Agent to reimburse drawings under Letters of Credit under this Agreement shall
be absolute, unconditional and irrevocable, and shall be paid and performed
strictly in accordance with the terms of this Agreement, under all circumstances
whatsoever and irrespective of any setoff, counterclaim or defense to payment
which Borrower may have or have had against the Administrative Agent or any of
the Banks (except such as may arise out of the Administrative Agent's or any
Bank's gross negligence or willful misconduct), including, without limitation,
any setoff, counterclaim or defense based upon or arising out of the following
circumstances: (i) any improper use which may be made of any Letter of Credit or
any improper acts or omissions of any beneficiary or transferee of any Letter of
Credit in connection therewith; (ii) the existence of any claim, set off,
defense or any right which Borrower may have at any time against any beneficiary
or any transferee of any Letter of Credit (or persons or entities for whom any
such beneficiary or any such transferee may be acting) or the Banks (other than
the defense of payment to the Banks in accordance with the terms of this
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Agreement) or any other person, whether in connection with any Letter of Credit,
this Agreement, any other Loan Document, or any unrelated transaction; (iii) any
statement or any other documents presented under any Letter of Credit proving to
be insufficient, forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect whatsoever; (iv) any breach of
any agreement between any Borrower and any beneficiary or transferee of any
Letter of Credit; (v) any irregularity in the transaction with respect to which
any Letter of Credit is issued, including any fraud by the beneficiary or any
transferee of such Letter of Credit; and (vi) payment by the Administrative
Agent under any Letter of Credit against presentation of a sight draft or a
certificate which does not comply with the terms of such Letter of Credit,
provided that such payment shall not have constituted gross negligence or
willful misconduct on the part of the Administrative Agent.
2.7 Voluntary Reduction of Aggregate Line Commitment. Borrower shall have
the right, at any time and from time to time, without penalty or charge, upon at
least three (3) Banking Days' prior written notice by a Responsible Official of
Borrower to the Administrative Agent, voluntarily to reduce, permanently and
irrevocably, in aggregate principal amounts in an integral multiples of
$1,000,000 but not less than $5,000,000, or to terminate, all or a portion of
the then undisbursed portion of the Aggregate Line Commitment; provided that in
no event shall the Aggregate Line Commitment be reduced to an amount less than
$100,000,000 (unless terminated in its entirety). The Administrative Agent shall
promptly notify the Banks of any reduction or termination of the Aggregate Line
Commitment under this Section. Any reduction of the Aggregate Line Commitment
shall be allocated pro rata among the Banks. Upon any such reduction of the
Aggregate Line Commitment, the Swing Line Bank and the Administrative Agent may
each elect, at its option, to reduce the Swing Loan Commitment or the maximum
amount of Letter of Credit Exposure pursuant to Section 2.6(a), as the case may
be, by the same percentage as the percentage reduction in the Aggregate Line
Commitment.
2.8 Increase in Line Commitment. At any time after the Closing Date of
this Agreement, the Administrative Agent may in its discretion (which discretion
shall not be arbitrarily or unreasonably exercised contrary to the request of
Borrower so long as the conditions set forth below are satisfied), without the
consent of the Banks (except as specified in this Section 2.8), from time to
time at the request of Borrower, increase the Aggregate Line Commitment (and,
correspondingly, the maximum Letter of Credit Exposure permitted under Section
2.6(a)) by (i) admitting additional Banks hereunder (each a "Subsequent Bank"),
or (ii) increasing the Line Commitment of any Bank (each an "Increasing Bank"),
subject to the following conditions:
(i) each Subsequent Bank is an Eligible Assignee;
(ii) Borrower executes (A) a new Line Note payable to the
order of a Subsequent Bank in the amount of its Line Commitment, or (B) a
replacement Line Note payable to the order of an Increasing Bank in the amount
of its new, increased Line Commitment;
(iii) each Subsequent Bank executes and delivers to the
Administrative Agent a signature page to this Agreement, and each Increasing
Bank executes and delivers to the Administrative Agent a new signature page to
this Agreement reflecting its increased Line Commitment;
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(iv) after giving effect to the admission of any Subsequent
Bank or the increase in the Line Commitment of any Increasing Bank, the
Aggregate Line Commitment does not exceed $400,000,000;
(v) no Event of Default exists; and
(vi) no Bank shall be an Increasing Bank without the written
consent of such Bank, which consent such Bank may withhold in its sole and
absolute discretion.
After the admission of any Subsequent Bank or increase in the Line Commitment of
any Increasing Bank, the Administrative Agent shall promptly provide to each
Bank and to Borrower copies of the signature pages of such Subsequent Bank or
Increasing Bank, and a statement of the current Line Commitment and related
Percentage of each Bank (which may be in the form of a revised Schedule 1.1).
2.9 Administrative Agent's Right to Assume Funds Available for Loans.
Unless the Administrative Agent shall have been notified by any Bank no later
than 1:00 p.m., Cleveland time on the Banking Day of the proposed funding by the
Administrative Agent of any Loan that such Bank does not intend to make
available to the Administrative Agent such Bank's portion of the total amount of
such Loan, the Administrative Agent may assume that such Bank has made such
amount available to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make available to
Borrower a corresponding amount. If the Administrative Agent has made funds
available to Borrower based on such assumption and such corresponding amount is
not in fact made available to the Administrative Agent by such Bank, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Bank plus an administrative fee of $200. If such Bank does not
pay such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent promptly shall notify Borrower and Borrower
shall pay such corresponding amount (but not the administrative fee) to the
Administrative Agent. The Administrative Agent also shall be entitled to recover
from such Bank or Borrower interest on such corresponding amount in respect of
each day from the date such corresponding amount was made available by the
Administrative Agent to Borrower to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to (i) from
such Bank, the daily Federal Funds Effective Rate or (ii) from Borrower, at the
applicable rate for such Loan. Nothing herein shall be deemed to relieve any
Bank from its obligation to fulfill its Line Commitment or Term Commitment or to
prejudice any rights which the Administrative Agent or Borrower may have against
any Bank as a result of any default by such Bank hereunder.
2.10 Extension of Maturity Date. Borrower shall have the one time right
and option to extend the Maturity Date with respect to either or both of the
Line Facility and the Term Facility to May 30, 2009 upon satisfaction of the
following conditions precedent, which must be satisfied prior to the
effectiveness of such extension of the Maturity Date:
(a) Extension Request. Borrower shall deliver written notice of such
request (the "Extension Request") to the Administrative Agent not earlier than
one hundred fifty (150) days and not later than the date which is ninety (90)
days prior to the Maturity Date.
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(b) Payment of Extension Fee. The Borrower shall pay to the
Administrative Agent, at the time of the Extension Request, for the benefit of
the Banks an extension fee equal to one fifth of one percent (0.20%) of the
then-current Line Commitment, if the Line Facility is extended, and one-fifth of
one percent (0.20%) of the then-current Outstanding Term Amount, if the Term
Loan is extended.
(c) No Default. On the date the Extension Request is given and on
the Maturity Date (as determined without regard to such extension) there shall
exist no Event of Default.
(d) Representations and Warranties. On the date of such Extension
Request Borrower shall deliver to the Administrative Agent a Certificate of a
Responsible Official signed by a Senior Officer on behalf of Borrower stating
that the representations and warranties contained in Article 4 (other than (i)
representations and warranties which expressly speak as of a particular date or
are no longer true and correct as a result of a change which is not in violation
of this Agreement and (ii) as otherwise disclosed by Borrower and approved in
writing by the Requisite Banks) will be true and correct in all material
respects, both immediately before and after giving effect to the Extension
Request, as though such representations and warranties were made on and as of
that date.
2.11 Unencumbered Pool. Borrower may at any time add a Qualified
Unencumbered Project to the Unencumbered Pool pursuant to this Section 2.11,
which process shall be initiated by delivery by Borrower to the Administrative
Agent (which the Administrative Agent shall promptly distribute to the Banks) of
a description, in reasonable detail, of the Qualified Unencumbered Project, the
most recent year operating income statement related thereto (to the extent
available), cash flow projections for such property for the next twelve (12)
months, a description of all tenants and leases with respect thereto, a
certification of a Senior Officer of Borrower that Borrower has obtained a
reasonably current (but in no event older than twelve months) Phase I
environmental site assessment prepared by a qualified independent expert with
respect to such Qualified Unencumbered Project which provides that there are no
recognized environmental conditions thereon that require further action, and
other written materials reasonably requested by the Administrative Agent.
Notwithstanding the satisfaction of all other criteria specified in this
Agreement, no Qualified Unencumbered Project presented by Borrower for inclusion
in the Unencumbered Pool shall be deemed added to and to constitute part of the
Unencumbered Pool until such time as the Administrative Agent shall have
determined that such property meets all the requirements of a Qualified
Unencumbered Project under this Agreement (or any such requirements shall have
been waived in writing by the Requisite Banks), and the Requisite Banks shall
have approved in their reasonable discretion the inclusion of such Qualified
Unencumbered Project in the Unencumbered Pool, and the Administrative Agent so
notifies Borrower and the Banks in writing. Borrower may remove a property from
the Unencumbered Pool by delivery to the Administrative Agent (for distribution
to the Banks) of a written notice to that effect, accompanied by a Certificate
of a Senior Officer of Borrower setting forth the revised Borrowing Base
resulting from such removal, which removal shall be effective on the third (3rd)
day after the date of such notice. The Administrative Agent may, upon five (5)
Banking Days' notice to Borrower, remove any Project from the Unencumbered Pool
which at any time fails to continue to meet the requirements of a Qualified
Unencumbered Project , as specified in this Agreement. Upon the effective date
of any such removal under either of the two preceding sentences, the Borrowing
Base shall be reduced and Borrower shall make any principal prepayment that may
be required under Section 3.1(e) as a result of such reduction in the Borrowing
Base. Upon any removal of a Project from the Unencumbered
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Pool by Borrower or the Administrative Agent pursuant to this Section 2.11, the
applicable Subsidiary Guarantor shall be released from all obligations under the
Subsidiary Guaranty and the Administrative Agent shall provide to Borrower, on
behalf of itself and the Banks, a written acknowledgement thereof.
ARTICLE 3
PAYMENTS AND FEES
3.1 Principal and Interest.
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Advance from the date thereof until payment in full is
made and shall accrue and be payable at the rates set forth or provided for
herein before and after Default, before and after maturity, before and after
judgment, and before and after the commencement of any proceeding under any
Debtor Relief Law, with interest on overdue interest at the Default Rate in each
case to the fullest extent permitted by applicable Laws. Interest on LIBOR Rate
Loans shall be computed on a 360 day year, and actual days elapsed. Interest on
Alternate Base Rate Loans shall be computed on a 365 or 366 day year, as
applicable, and actual days elapsed.
(b) Interest accrued on each Alternate Base Rate Loan shall be due
and payable on each Monthly Payment Date or at maturity, whether by acceleration
or otherwise. Except as otherwise provided in Section 3.6, the unpaid principal
amount of any Alternate Base Rate Loan shall bear interest at a fluctuating rate
per annum equal to the Alternate Base Rate. Each change in the interest rate
under this Section 3.1(b) due to a change in the Alternate Base Rate shall take
effect simultaneously with the corresponding change in the Alternate Base Rate.
(c) Interest accrued on each LIBOR Rate Loan shall be due and
payable on each Monthly Payment Date or at maturity, whether by acceleration or
otherwise. Except as otherwise provided in Section 3.6, the unpaid principal
amount of any LIBOR Rate Loan shall bear interest at a rate per annum equal to
the LIBOR Rate for the applicable LIBOR Period.
(d) In the event that any additional interest becomes due and
payable for any period with respect to a Loan as a result of the Applicable
Margin being changed due to any change in the Leverage Ratio, and the interest
for such period has previously been paid by Borrower, Borrower shall pay to the
Administrative Agent for the account of the Banks the amount of such increase
within ten (10) days of demand.
(e) If not sooner paid, the principal Indebtedness evidenced by the
Notes shall be payable as follows:
(i) the amount, if any, by which the principal Indebtedness
evidenced by the Notes (after giving effect to all amounts requested thereunder)
plus the Letter of Credit Exposure, at any time exceeds the Facility
Availability Amount shall be payable immediately upon demand and after the Loans
are repaid in full, if any Letter of Credit Exposure is then outstanding,
Borrower shall make a deposit to the cash collateral account described in
Section 9.2(e) to the extent of the then-current Letter of Credit Exposure; and
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(ii) the principal Indebtedness evidenced by the Notes shall
in any event be payable on the Maturity Date applicable thereto.
(f) The Notes may, at any time and from time to time, voluntarily be
paid or prepaid in whole or in part without premium or penalty, except that with
respect to any voluntary prepayment under this Section, (i) any partial
prepayment shall be not less than $1,000,000, (ii) the Administrative Agent
shall have received written notice of any prepayment by noon, Cleveland time on
the date of prepayment (which must be a Banking Day) in the case of an Alternate
Base Rate Loan, and, in the case of a LIBOR Rate Loan, three (3) Banking Days
before the date of prepayment, which notice shall identify the date and amount
of the prepayment and the Loan(s) being prepaid, (iii) any payment or prepayment
of all or any part of any LIBOR Rate Loan on a day other than the last day of
the applicable LIBOR Period shall be subject to Section 3.5(d) and (iv) upon any
partial prepayment of a LIBOR Rate Loan that reduces it below $1,000,000, the
remaining portion thereof shall automatically convert to an Alternate Base Rate
Loan. Notwithstanding the foregoing, no prior notice shall be required for the
prepayment of any Swing Loan.
(g) Unless otherwise approved by the Administrative Agent, Borrower
shall cause all gross proceeds of each and every Debt Offering and Equity
Offering, less all reasonable costs, fees, expenses, underwriting commissions,
fees and discounts incurred in connection therewith, to be paid to the
Administrative Agent for the account of the Banks as a prepayment of the Loans
within ten (10) days of the date of such offering to the extent of the
outstanding balance of the Loans and after the Loans are repaid in full as a
deposit to the cash collateral account described in Section 9.2(e) to the extent
of the then-current Letter of Credit Exposure. Provided that no Event of Default
has occurred and is then continuing, Borrower shall be entitled to designate the
Loans to which such required prepayment shall be applied.
3.2 Other Fees. In addition to the Letter of Credit issuance fee described
above, Borrower shall pay to KeyBank each of the other fees specified in the Fee
Letter as and when due in accordance therewith.
3.3 Unused Fees. Borrower agrees to pay to the Administrative Agent for
the account of each Bank an unused facility fee (the "Unused Fee") equal to an
aggregate amount computed on a daily basis by multiplying (i) the Unused Fee
Percentage applicable to such day, expressed as a per diem rate, times (ii) the
excess of the Aggregate Line Commitment over the Outstanding Line Amount on such
day. The Unused Fee shall be payable quarterly in arrears on the first Banking
Day of each calendar quarter (for the prior calendar quarter) and upon any
termination of the Line Commitment in its entirety.
3.4 Increased Commitment Costs. If any Bank shall determine in good faith
that the introduction after the Closing Date of any applicable Law or guideline
regarding capital adequacy, or any change therein or any change in the
interpretation or administration thereof by any central bank or other
Governmental Agency charged with the interpretation or administration thereof,
or compliance by such Bank (or its LIBOR Lending Office) or any corporation
controlling such Bank, with any request, guideline or directive regarding
capital adequacy (whether or not having the force of Law) of any such central
bank or other authority not imposed as a result of such Bank's or such
corporation's failure to comply with any other Laws, affects or would affect the
amount of capital
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required or expected to be maintained by such Bank or any corporation
controlling such Bank and (taking into consideration such Bank's or such
corporation's policies with respect to capital adequacy and such Bank's desired
return on capital) determines in good faith that the amount of such capital is
increased, or the rate of return on capital is reduced, as a consequence of its
obligations under this Agreement, then, within ten (10) Banking Days after
demand of such Bank, Borrower shall pay to such Bank, from time to time as
specified in good faith by such Bank, additional amounts sufficient to
compensate such Bank in light of such circumstances, to the extent reasonably
allocable to such obligations under this Agreement, provided that Borrower shall
not be obligated to pay any such amount which arose prior to the date which is
one hundred eighty (180) days preceding the date of such demand or is
attributable to periods prior to the date which is one hundred eighty (180) days
receding the date of such demand. Each Bank's determination of such amounts
shall be conclusive in the absence of manifest error.
3.5 LIBOR Costs and Related Matters.
(a) If, after the date hereof, the existence or occurrence of any
Special LIBOR Circumstance:
(i) shall subject any Bank or its LIBOR Lending Office to any
tax, duty or other charge or cost with respect to any LIBOR Rate Advance, any of
its Notes evidencing LIBOR Rate Loans or its obligation to make LIBOR Rate
Advances, or shall change the basis of taxation of payments to any Bank
attributable to the principal of or interest on any LIBOR Rate Advance or any
other amounts due under this Agreement in respect of any LIBOR Rate Advance, any
of its Notes evidencing LIBOR Rate Loans or its obligation to make LIBOR Rate
Advances, excluding (i) taxes imposed on or measured in whole or in part by its
overall net income (including taxes on gross income imposed in lieu of net
income, minimum taxes or branch profits taxes) by (A) any jurisdiction (or
political subdivision thereof) in which it is organized or maintains its
principal office or LIBOR Lending Office or (B) any jurisdiction (or political
subdivision thereof) in which it is "doing business" and (ii) any withholding
taxes or other taxes based on gross income imposed by the United States of
America for any period with respect to which it has failed, for any reason, to
provide Borrower with the appropriate form or forms required by Section 11.21,
to the extent such forms are then required by applicable Laws to establish a
complete exemption;
(ii) shall impose, modify or deem applicable any reserve not
applicable or deemed applicable on the date hereof (including any reserve
imposed by the Board of Governors of the Federal Reserve System, special
deposit, capital or similar requirements against assets of, deposits with or for
the account of, or credit extended by, any Bank or its LIBOR Lending Office); or
(iii) shall impose on any Bank or its LIBOR Lending Office or
the London interbank market any other condition affecting any LIBOR Rate
Advance, any of its Notes evidencing LIBOR Rate Loans, its obligation to make
LIBOR Rate Advances or this Agreement, or shall otherwise affect any of the
same;
and the result of any of the foregoing, as determined in good faith by such
Bank, increases the cost to such Bank or its LIBOR Lending Office of making or
maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any
of its Notes evidencing LIBOR Rate Loans or its
- 36 -
obligation to make LIBOR Rate Advances or reduces the amount of any sum received
or receivable by such Bank or its LIBOR Lending Office with respect to any LIBOR
Rate Advance, any of its Notes evidencing LIBOR Rate Loans or its obligation to
make LIBOR Rate Advances, then, within five (5) Banking Days after demand by
such Bank (with a copy to the Administrative Agent), Borrower shall pay to such
Bank such additional amount or amounts as will compensate such Bank for such
increased cost or reduction (determined as though such Bank's LIBOR Lending
Office had funded 100% of its LIBOR Rate Advance in the London interbank
market), provided, that with respect to any additional amount arising as a
result of the occurrence of an event described in clause (i) above, Borrower
shall not be obligated to pay any such amount which arose prior to the date
which is ninety (90) days preceding the date of such demand or is attributable
to periods prior to the date which is ninety (90) days preceding the date of
such demand. A statement of any Bank claiming compensation under this subsection
shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any
Special LIBOR Circumstance shall, in the good faith opinion of any Bank, make it
unlawful or impossible for such Bank or its LIBOR Lending Office to make,
maintain or fund its portion of any LIBOR Rate Loan, or materially restrict the
authority of such Bank to purchase or sell, or to take deposits of, Dollars in
the London interbank market, or to determine or charge interest rates based upon
the LIBOR Rate, and such Bank shall so notify the Administrative Agent, then
such Bank's obligation to make LIBOR Rate Advances shall be suspended for the
duration of such illegality or impossibility and the Administrative Agent
forthwith shall give notice thereof to the other Banks and Borrower. Upon
receipt of such notice, the outstanding principal amount of such Bank's LIBOR
Rate Advances, together with accrued interest thereon, automatically shall be
converted to Alternate Base Rate Advances on either (1) the last day of the
LIBOR Period(s) applicable to such LIBOR Rate Advances if such Bank may lawfully
continue to maintain and fund such LIBOR Rate Advances to such day(s) or (2)
immediately if such Bank may not lawfully continue to fund and maintain such
LIBOR Rate Advances to such day(s), provided that in such event the conversion
shall not be subject to payment of a prepayment fee under Section 3.8(e). Each
Bank agrees to endeavor promptly to notify Borrower of any event of which it has
actual knowledge, occurring after the Closing Date, which will cause that Bank
to notify the Administrative Agent under this Section, and agrees to designate a
different LIBOR Lending Office if such designation will avoid the need for such
notice and will not, in the good faith judgment of such Bank, otherwise be
materially disadvantageous to such Bank. In the event that any Bank is unable,
for the reasons set forth above (or those set forth in clause (d) below), to
make, maintain or fund its portion of any LIBOR Rate Loan, such Bank shall fund
such amount as an Alternate Base Rate Advance for the same period of time, and
such amount shall be treated in all respects as an Alternate Base Rate Advance.
Any Bank whose obligation to make LIBOR Rate Advances has been suspended under
this Section shall promptly notify the Administrative Agent and Borrower of the
cessation of the Special LIBOR Circumstance which gave rise to such suspension.
(c) If, with respect to any proposed LIBOR Rate Loan:
(i) the Administrative Agent reasonably determines that, by
reason of circumstances affecting the London interbank market generally that are
beyond the reasonable control of the Banks, deposits in Dollars (in the
applicable amounts) are not being offered to any Bank in the London interbank
market for the applicable LIBOR Period; or
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(ii) the Requisite Banks advise the Administrative Agent that
the LIBOR Rate as determined by the Administrative Agent (i) does not represent
the effective pricing to such Banks for deposits in Dollars in the London
interbank market in the relevant amount for the applicable LIBOR Period, or (ii)
will not adequately and fairly reflect the cost to such Banks of making the
applicable LIBOR Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to Borrower
and the Banks, whereupon until the Administrative Agent notifies Borrower that
the circumstances giving rise to such suspension no longer exist, the obligation
of the Banks to make any future LIBOR Rate Advances shall be suspended.
(d) Except for a failure caused by any Bank's default, Borrower
shall indemnify the Banks against any loss or expense that the Banks may sustain
or incur (including, without limitation, any loss or expense sustained or
incurred in obtaining, liquidating or employing deposits or other funds acquired
to effect, fund or maintain any LIBOR Rate Loans) as a consequence of (i) any
failure of Borrower to make any payment when due of any amount due hereunder,
(ii) any failure of Borrower to borrow, continue or convert a LIBOR Rate Loan on
a date specified therefor in a notice thereof, (iii) any failure to fulfill on
the scheduled commencement date of any LIBOR Period hereunder the applicable
conditions set forth herein as prerequisites to an Advance that is to be a LIBOR
Rate Loan or to the election of a LIBOR Rate, (iv) any failure to borrow
hereunder after a request for a LIBOR Rate Loan has been given, (v) any payment
or prepayment permitted or mandated hereunder of a LIBOR Rate Loan on a date
other than the last day of the relevant LIBOR Period, including without
limitation upon acceleration following an Event of Default, or (vi) the
occurrence of any Event of Default, including but not limited to any loss or
expense sustained or incurred or to be sustained or incurred in liquidating or
employing deposits from third parties acquired to effect or maintain a LIBOR
Rate Loan. Without limiting the foregoing, such loss or expense shall
conclusively be deemed to include a "Breakage Fee" (as defined below). The term
"Breakage Fee" shall mean that sum equal to the greater of $200 or the financial
loss incurred by the Banks resulting from prepayment or failure to borrow,
calculated by the Administrative Agent as the difference between the amount of
interest the Banks would have earned (from like investments in the Money Markets
(as hereinafter defined) as of the first day of the applicable LIBOR Period) had
prepayment or failure to borrow not occurred and the interest the Banks would
actually earn (from like investments in the Money Markets as of the date of
prepayment or failure to borrow) as a result of the redeployment of funds from
the prepayment or failure to borrow. Borrower agrees that the Breakage Fee shall
not be discounted to its present value. Any voluntary prepayment of a LIBOR Rate
Loan shall be in an amount equal to the remaining entire principal balance of
such LIBOR Rate Loan. The term "Money Markets" refers to one or more wholesale
funding markets available to Banks, including negotiable certificates of
deposit, commercial paper, Eurodollar deposits, bank notes, federal funds and
others. The Administrative Agent shall provide to Borrower a statement, signed
by an officer of the Administrative Agent, explaining any such loss or expense
and setting forth the computation of the Breakage Fee pursuant to the preceding
provisions which, in the absence of manifest error, shall be conclusive and
binding on Borrower.
(e) Each Bank agrees to endeavor promptly to notify Borrower of any
event of which it has actual knowledge, occurring after the Closing Date, which
will entitle such Bank to compensation pursuant to this Section 3.5, and agrees
to designate a different LIBOR Lending Office if such designation will avoid the
need for or reduce the amount of such compensation and
- 38 -
will not, in the good faith judgment of such Bank, otherwise be materially
disadvantageous to such Bank. Any request for compensation by a Bank under this
Section 3.5 shall set forth the basis upon which it has been determined that
such an amount is due from Borrower, a calculation of the amount due, and a
certification that the corresponding costs have been incurred by the Bank.
3.6 Late Payments. If any installment of principal or interest or any fee
or cost or other amount payable under any Loan Document to the Administrative
Agent or any Bank is not paid when due, it shall thereafter bear interest at a
fluctuating interest rate per annum (the "Default Rate") at all times equal to
(i) in the case of interest or principal, the sum of the rate otherwise
applicable to the Loans, plus 3% and (ii) in the case of any other amount, the
sum of the Alternate Base Rate plus 3%, to the fullest extent permitted by
applicable Laws. Accrued and unpaid interest on past due amounts (including,
without limitation, interest on past due interest) shall be compounded monthly,
on the last day of each calendar month, to the fullest extent permitted by
applicable Laws, and shall be payable upon demand. In addition, Borrower shall
pay, upon demand, a late charge equal to five percent (5%) of any amount of
interest and/or principal payable on the Loans or any other amounts payable
hereunder or under the other Loan Documents which is not paid within ten (10)
days of the date when due.
3.7 Computation of Interest and Fees. Computation of interest and fees
under this Agreement shall be calculated on the basis of a year of 360 days and
the actual number of days elapsed, except that interest at the Alternate Base
Rate shall be calculated on the basis of a 365 or 366 day year, as applicable.
Interest shall accrue on each Loan for the day on which the Loan is made;
interest shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid. Any Loan that is repaid on the same day
on which it is made shall bear interest for one day. Notwithstanding anything in
this Agreement to the contrary, interest in excess of the maximum amount
permitted by applicable Laws shall not accrue or be payable hereunder or under
the Notes, and any amount paid as interest hereunder or under the Notes which
would otherwise be in excess of such maximum permitted amount shall instead be
treated as a payment of principal.
3.8 Non Banking Days. If any payment to be made by Borrower or any other
Party under any Loan Document shall come due on a day other than a Banking Day,
payment shall instead be considered due on the next succeeding Banking Day,
unless, in the case of a payment relating to a LIBOR Rate Loan, such next
succeeding Banking Day is in the next calendar month, in which case such payment
shall be made on the next preceding Banking Day, and the extension of time shall
be reflected in computing interest and fees.
3.9 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments pursuant to Sections
3.4, 3.5, 11.3, 11.11 and 11.22) or on the Notes or under any other Loan
Document shall be made to the Administrative Agent at the Administrative Agent's
Office for the account of each of the Banks or the Administrative Agent, as the
case may be, in immediately available funds not later than 2:00 p.m., Cleveland
time, on the day of payment (which must be a Banking Day). All payments received
after such time, on any Banking Day, shall be deemed received on the next
succeeding Banking Day. The amount of all payments received by the
Administrative Agent for the account of each Bank shall be immediately paid by
the Administrative Agent to the applicable Bank in immediately available funds
and, if such payment was received by the Administrative Agent by
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2:00 p.m., Cleveland time, on a Banking Day and not so made available to the
account of a Bank on that Banking Day, the Administrative Agent shall reimburse
that Bank for the cost to such Bank of funding the amount of such payment at the
Federal Funds Effective Rate. All payments shall be made in Dollars.
(b) Each payment or prepayment shall be applied first to Swing
Loans, then to Alternate Base Rate Loans and finally to LIBOR Rate Loans. Each
payment or prepayment on account of any such Alternate Base Rate Loan or LIBOR
Rate Loan shall be applied pro rata according to the outstanding Advances made
by each Bank comprising such Loan.
(c) Each Bank shall keep a record (in writing or by an electronic
data entry system) of Advances made by it and payments received by it with
respect to each of its Notes and, subject to Section 10.6(g), such record shall,
as against Borrower, be presumptive evidence of the amounts owing, absent
manifest error. Notwithstanding the foregoing sentence, the failure by any Bank
to keep such a record shall not affect Borrower's obligation to pay the
Obligations.
(d) Each payment of any amount payable by Borrower or any other
Party under this Agreement or any other Loan Document shall be made without
setoff or counterclaim and free and clear of, and without reduction by reason
of, any taxes, assessments or other charges imposed by any Governmental Agency,
central bank or comparable authority, excluding (i) taxes imposed on or measured
in whole or in part by any Bank's overall net income (including taxes on gross
income imposed in lieu of net income tax, minimum taxes or branch profits taxes)
by (A) any jurisdiction (or political subdivision thereof) in which such Bank is
organized or maintains its principal office or LIBOR Lending Office or (B) any
jurisdiction (or political subdivision thereof) in which such Bank is "doing
business" and (ii) any withholding taxes or other taxes based on gross income
imposed by the United States of America for any period with respect to which any
Bank has failed, for whatever reason, timely to provide Borrower with the
appropriate form or forms required by Section 11.21, to the extent such forms
are then required by applicable Laws to establish a complete exemption (all such
non excluded taxes, assessments or other charges being hereinafter referred to
as "Taxes"). To the extent that Borrower is obligated by applicable Laws to make
any deduction or withholding on account of Taxes from any amount payable to any
Bank under this Agreement, Borrower shall (i) make such deduction or withholding
and pay the same to the relevant Governmental Agency and (ii) pay such
additional amount to that Bank as is necessary to result in that Bank's
receiving a net after Tax amount equal to the amount to which that Bank would
have been entitled under this Agreement absent such deduction or withholding.
3.10 Funding Sources. Nothing in this Agreement shall be deemed to
obligate any Bank to obtain the funds for any Loan or Advance in any particular
place or manner or to constitute a representation by any Bank that it has
obtained or will obtain the funds for any Loan or Advance in any particular
place or manner.
3.11 Failure to Charge Not Subsequent Waiver. Any decision by the
Administrative Agent or any Bank not to require payment of any interest
(including interest arising under Section 3.6), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a waiver
of the Administrative Agent's or such Bank's right to require full payment of
any interest (including interest arising under Section 3.6), fee, cost or other
amount payable under any Loan Document, or
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to calculate an amount payable by another method that is not inconsistent with
this Agreement, on any other or subsequent occasion.
3.12 Administrative Agent's Right to Assume Payments Will be Made by
Borrower. Unless the Administrative Agent shall have been notified by Borrower
prior to the date on which any payment to be made by Borrower hereunder is due
that Borrower does not intend to remit such payment, the Administrative Agent
may, in its discretion, assume that Borrower has remitted such payment when so
due and the Administrative Agent may, in its discretion and in reliance upon
such assumption, make available to each Bank on such payment date an amount
equal to such Bank's share of such assumed payment. If Borrower has not in fact
remitted such payment to the Administrative Agent, each Bank shall forthwith on
demand repay to the Administrative Agent the amount of such assumed payment made
available to such Bank, together with interest thereon in respect of each day
from and including the date such amount was made available by the Administrative
Agent to such Bank to the date such amount is repaid to the Administrative Agent
at the Federal Funds Effective Rate.
3.13 Calculations Detail. The Administrative Agent, and any Bank, shall
provide reasonable detail to Borrower regarding the manner in which the amount
of any payment to the Administrative Agent and the Banks, or that Bank, under
Article 3 has been determined, within a reasonable period of time after request
by Borrower.
3.14 Survivability. The provisions of Sections 3.4 and 3.5 shall survive
following the date on which the Commitments and all Letters of Credit are
terminated and all Loans and Obligations with respect to any Letter of Credit
hereunder are fully paid, and Borrower shall remain obligated thereunder for all
claims under such Sections made by any Bank to Borrower.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Banks that:
4.1 Existence and Qualification; Power; Compliance With Laws. Parent is a
corporation duly formed, validly existing and in good standing under the Laws of
Maryland. Borrower is a limited partnership, duly formed, validly existing and
in good standing under the Laws of Maryland, and each Guarantor is a
corporation, limited partnership, limited liability company or trust duly
formed, validly existing and in good standing under the Laws of its state of
formation. Each of the Loan Parties is duly qualified or registered to transact
business and is in good standing in each other jurisdiction in which the conduct
of its business or the ownership or leasing of its Properties makes such
qualification or registration necessary, except where the failure so to qualify
or register and to be in good standing would not constitute a Material Adverse
Effect. Each of the Loan Parties has all requisite power and authority to
conduct its business, to own and lease its Properties and to execute and deliver
each Loan Document to which it is a Party and to perform its Obligations. All
outstanding shares of capital stock of Parent are duly authorized, validly
issued, fully paid and nonassessable, and no holder thereof has any enforceable
right of rescission under any applicable state or federal securities Laws. Each
of the Loan Parties is in compliance with all Laws and other legal requirements
applicable to its business, has obtained all authorizations, consents,
approvals,
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orders, licenses and permits from, and has accomplished all filings,
registrations and qualifications with, or obtained exemptions from any of the
foregoing from, any Governmental Agency that are necessary for the transaction
of its business, except where the failure so to comply, obtain authorizations,
etc., file, register, qualify or obtain exemptions does not constitute a
Material Adverse Effect. Parent is a "real estate investment trust" within the
meaning of Section. 856 of the Code, has elected to be treated as a real estate
investment trust and is subject to federal income taxation as a real estate
investment trust pursuant to Sections. 856-860 of the Code.
4.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations. The execution, delivery and performance by each of the
Loan Parties of the Loan Documents to which it is a Party have been duly
authorized by all necessary corporate, partnership or limited liability company
action, as applicable, and do not and will not:
(a) Require any consent or approval not heretofore obtained of any
partner, director, stockholder, security holder or creditor of the Loan Parties;
(b) Violate or conflict with any provision of any Loan Party's
charter, articles of incorporation, bylaws or other organizational agreements,
as applicable;
(c) Result in or require the creation or imposition of any Lien upon
or with respect to any Property now owned or leased or hereafter acquired by the
Loan Parties;
(d) Violate in any material respect any material Requirement of Law
applicable to the Loan Parties; or
(e) Result in a breach of or constitute a default under, or cause or
permit the acceleration of any obligation owed under, any indenture or loan or
credit agreement or any other Contractual Obligation to which the Loan Parties
are a party or by which the Loan Parties or any of their Property is bound or
affected;
and none of the Loan Parties is in violation of, or default under, any
Requirement of Law or Contractual Obligation, or any indenture, loan or credit
agreement described in Section 4.2(e), in any respect that constitutes a
Material Adverse Effect.
4.3 No Governmental Approvals Required. Except as previously obtained or
made, and except for consents, approvals or permits pertaining to construction
or development of a type that are routinely granted and that would not normally
be obtained before the commencement of performance and which Borrower has no
reason to believe will not be obtained as and when required, no authorization,
consent, approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Agency is or will be required to authorize
or permit under applicable Laws the execution, delivery and performance by any
of the Loan Parties of the Loan Documents to which it is a Party.
4.4 Subsidiaries. Schedule 4.4 hereto correctly sets forth the names, form
of legal entity, number of shares of capital stock (or other applicable unit of
equity interest) issued and outstanding, and the record owner thereof and
jurisdictions of organization of all Subsidiaries of Parent. Unless otherwise
indicated in Schedule 4.4, all of the outstanding shares of capital stock, or
all of the units of equity interest, as the case may be, of each such Subsidiary
are owned of record and beneficially
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by Parent, there are no outstanding options, warrants or other rights to
purchase capital stock of any such Subsidiary, and all such shares or equity
interests so owned are duly authorized, validly issued, fully paid and
nonassessable, and were issued in compliance with all applicable state and
federal securities and other Laws, and are free and clear of all Liens, except
for Permitted Liens.
4.5 Financial Statements. All financial statements and other information
previously delivered to the Administrative Agent by Borrower fairly present in
all material respects the financial condition, results of operations, cash flows
and/or other information described therein.
4.6 No Other Liabilities; No Material Adverse Changes. The Loan Parties do
not have any material liability or material contingent liability required under
Generally Accepted Accounting Principles to be reflected or disclosed, and not
reflected or disclosed, in the balance sheets described in Section 4.5, other
than liabilities and contingent liabilities arising in the ordinary course of
business since the date of such financial statements. As of the Closing Date, no
circumstance or event has occurred that constitutes a Material Adverse Effect.
4.7 [Intentionally Omitted.]
4.8 Intangible Assets. The Loan Parties own, or possess the right to use
to the extent necessary in their respective businesses, all material trademarks,
trade names, copyrights, patents, patent rights, computer software, licenses and
other Intangible Assets that are used in the conduct of their businesses as now
operated, and no such Intangible Asset, to the best knowledge of Borrower,
conflicts with the valid trademark, trade name, copyright, patent, patent right
or Intangible Asset of any other Person to the extent that such conflict
constitutes a Material Adverse Effect.
4.9 Public Utility Holding Company Act. None of the Loan Parties is a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
4.10 Litigation. Except for (a) any matter fully covered as to subject
matter and amount (subject to applicable deductibles and retentions) by
insurance for which the insurance carrier has not asserted lack of subject
matter coverage or reserved its right to do so, (b) any matter, or series of
related matters, involving a claim against Parent or any of its Subsidiaries of
less than $5,000,000 (or, in each case in which this representation and warranty
is remade after the Closing Date, less than $5,000,000 or such greater amount
that the Administrative Agent has reasonably determined, after full written
disclosure thereof by Borrower to the Administrative Agent, would not constitute
a Material Adverse Effect), (c) matters of an administrative nature not
involving a claim or charge against Parent or any of its Subsidiaries and (d)
matters set forth in Schedule 4.10, there are no actions, suits, proceedings or
investigations pending as to which Parent or any of its Subsidiaries have been
served or have received notice or, to the best knowledge of Borrower, threatened
against or affecting Parent or any of its Subsidiaries or any Property of any of
them before any Governmental Agency, mediator or arbitrator. As of the Closing
Date, there are no judgments outstanding against or affecting the Parent or any
of its Subsidiaries or any Property individually or in the aggregate involving
amounts in excess of $1,000,000.
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4.11 Binding Obligations. Each of the Loan Documents to which the Loan
Parties are a Party will, when executed and delivered by the Loan Parties,
constitute the legal, valid and binding obligation of the Loan Parties,
enforceable against the Loan Parties in accordance with its terms, except as
enforcement may be limited by Debtor Relief Laws or equitable principles
relating to the granting of specific performance and other equitable remedies as
a matter of judicial discretion.
4.12 No Default. No event has occurred and is continuing that is a Default
or Event of Default.
4.13 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material respects with
ERISA and any other applicable Laws to the extent that noncompliance would
constitute a Material Adverse Effect;
(ii) such Pension Plan has not incurred any "accumulated
funding deficiency" (as defined in Section 302 of ERISA) that would constitute a
Material Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043 of
ERISA, but excluding such events as to which the PBGC has by regulation waived
the requirement therein contained that it be notified within thirty days of the
occurrence of such event) has occurred that would constitute a Material Adverse
Effect; and
(iv) neither Parent nor any of its Subsidiaries has engaged in
any nonexempt "prohibited transaction" (as defined in Section 4975 of the Code)
that would constitute a Material Adverse Effect.
(b) neither Parent nor any of its Subsidiaries has incurred or
expects to incur any withdrawal liability to any Multiemployer Plan that would
constitute a Material Adverse Effect.
4.14 Regulations T, U and X; Investment Company Act. No part of the
proceeds of any Loan hereunder will be used to purchase or carry, or to extend
credit to others for the purpose of purchasing or carrying, any Margin Stock in
violation of Regulations T, U and X. Neither Parent nor any of its Subsidiaries
is or is required to be registered as an "investment company" under the
Investment Company Act of 1940, as amended.
4.15 Disclosure. No written statement made by a Senior Officer to the
Administrative Agent or any Bank in connection with this Agreement, or in
connection with any Loan, as of the date thereof contained any untrue statement
of a material fact or omitted a material fact necessary to make the statement
made not misleading in light of all the circumstances existing at the date the
statement was made.
4.16 Tax Liability. Parent and its Subsidiaries have filed all tax returns
which are required to be filed, and have paid, or made provision for the payment
of, all taxes with respect to the periods, Property or transactions covered by
said returns, or pursuant to any assessment received by Parent or any of its
Subsidiaries, except (a) such taxes, if any, as are being contested in good
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faith by appropriate proceedings and as to which adequate reserves have been
established and maintained and (b) immaterial taxes so long as no material
Property of Parent or any of its Subsidiaries is at impending risk of being
seized, levied upon or forfeited.
4.17 Hazardous Materials. Except as described in Schedule 4.17, as of the
Closing Date (a) none of the Loan Parties, nor to the best knowledge of
Borrower, any other Person at any time has disposed of, discharged, released or
threatened the release of any Hazardous Materials on, from or under the Projects
in violation of any Hazardous Materials Law that would individually or in the
aggregate constitute a Material Adverse Effect, (b) to the best knowledge of
Borrower, no condition exists that violates any Hazardous Material Law affecting
any Projects except for such violations that would not individually or in the
aggregate constitute a Material Adverse Effect, (c) no Projects or any portion
thereof is or has been utilized by the Loan Parties nor, to the best knowledge
of Borrower, any other Person as a site for the manufacture of any Hazardous
Materials, (d) to the extent that any Hazardous Materials are used, generated or
stored by Borrower or any other Person on any Project, or transported to or from
such Project by the Loan Parties or any other Person, such use, generation,
storage and transportation by the Loan Parties and, to the best knowledge of
Borrower, by any other Person are in compliance with all Hazardous Materials
Laws except for such non compliance that would not constitute a Material Adverse
Effect or be materially adverse to the interests of the Banks, and (e) no
Project is subject to any remediation, removal, containment or similar action
conducted by or on behalf of any Loan Party or any other Person, or with respect
to any such Project listed on Schedule 4.17 which is subject to any such action,
the estimated costs for completing such action are as set forth on Schedule
4.17.
4.18 Initial Pool Properties. The Initial Unencumbered Projects described
on Schedule 4.18 are, as of the Closing Date, Qualified Unencumbered Projects
and comprise the initial Unencumbered Pool.
4.19 Property. All of the Loan Parties' and their respective Subsidiaries'
properties are in good repair and condition, subject to ordinary wear and tear,
other than with respect to deferred (i) maintenance existing as of the date of
acquisition of such property as permitted in this Section 4.19, (ii) Projects
currently under development and (iii) defects relating to properties other than
properties in the Unencumbered Pool which would not constitute a Material
Adverse Effect. The Loan Parties further have completed or caused to be
completed an appropriate investigation of the environmental condition of each
such property as of the later of (a) the approximate date of the Loan Parties'
or such Subsidiaries' purchase thereof or (b) the approximate date upon which
such property was last security for Indebtedness of such Borrower or such
Subsidiary if such financing was not closed on or about the date of the
acquisition of such property to the extent such an investigation was required by
the applicable lender, including preparation of a "Phase I" report and, if
appropriate, a "Phase II" report, in each case prepared by a recognized
environmental consultant in accordance with customary standards which discloses
that such property is not in violation of the representations and covenants set
forth in this Agreement, unless such violation as to properties in the
Unencumbered Pool has been disclosed in writing to the Administrative Agent and
satisfactory remediation actions are being taken. There are no unpaid or
outstanding real estate or other taxes or assessments on or against any property
of any Loan Party or any of their respective Subsidiaries which are payable by
such Person (except only real estate or other taxes or assessments, that are not
yet due and payable). There are no pending eminent domain proceedings against
any property included within the Unencumbered Pool, and, to the best knowledge
of Borrower, no such proceedings are presently
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threatened by any taking authority which individually or in the aggregate would
constitute a Material Adverse Effect. None of the property of the Loan Parties
or their respective Subsidiaries is now damaged or injured as a result of any
fire, explosion, accident, flood or other casualty in any manner which
individually or in the aggregate would constitute a Material Adverse Effect. The
Projects owned by Parent, each of the other Loan Parties and their respective
Subsidiaries as of the date hereof, are set forth on Schedule 4.19 hereto.
4.20 Brokers. None of the Loan Parties or their respective Subsidiaries
has engaged or otherwise dealt with any broker, finder or similar entity in
connection with this Agreement or the Loans contemplated hereunder.
4.21 Other Debt. None of the Loan Parties or their respective Subsidiaries
is in default (after expiration of all applicable grace and cure periods) in the
payment of any other Indebtedness or under any mortgage, deed of trust, security
agreement, financing agreement or indenture involving Indebtedness of $1,000,000
or more or under any other material agreement or lease to which any of them is a
party. None of the Loan Parties is a party to or bound by any agreement,
instrument or indenture that may require the subordination in right or time of
payment of any of the Obligations to any other Indebtedness or obligation of
such Loan Party. Schedule 4.21 hereto sets forth all of the Secured Indebtedness
and recourse Indebtedness of the type described in Sections 6.11 and 6.12 of the
Loan Parties and their respective Subsidiaries as of the date hereof.
4.22 Solvency. As of the Closing Date and after giving effect to the
transactions contemplated by this Agreement and the other Loan Documents,
including all of the Loans made or to be made hereunder, none of the Loan
Parties is insolvent on a balance sheet basis such that the sum of such Person's
assets exceeds the sum of such Person's liabilities, each Loan Party is able to
pay its debts as they become due, and each Loan Party has sufficient capital to
carry on its business.
4.23 No Fraudulent Intent. Neither the execution and delivery of this
Agreement or any of the other Loan Documents nor the performance of any actions
required hereunder or thereunder is being undertaken by any Loan Party with or
as a result of any actual intent by any of such Persons to hinder, delay or
defraud any entity to which any of such Persons is now or will hereafter become
indebted.
4.24 Transaction in Best Interests of Loan Parties; Consideration. The
transaction evidenced by this Agreement and the other Loan Documents is in the
best interests of the Loan Parties. The direct and indirect benefits to inure to
the Loan Parties pursuant to this Agreement and the other Loan Documents
constitute substantially more than "reasonably equivalent value" (as such term
is used in Section 548 of the Bankruptcy Code) and "valuable consideration,"
"fair value," and "fair consideration" (as such terms are used in any applicable
state fraudulent conveyance law), in exchange for the benefits to be provided by
the Loan Parties pursuant to this Agreement and the other Loan Documents, and
but for the willingness of the Loan Parties to be jointly and severally liable
as co Loan obligor for the Loan, Loan Parties would be unable to obtain the
financing contemplated hereunder which financing will enable the Loan Parties
and their respective Subsidiaries to have available financing to conduct and
expand their business.
4.25 No Bankruptcy Filing. None of the Loan Parties or any of their
respective Subsidiaries is contemplating either the filing of a petition by it
under any state or federal
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bankruptcy or insolvency laws or the liquidation of its Property, and none of
the Loan Parties has any knowledge of any Person contemplating the filing of any
such petition against it or any Subsidiary.
4.26 OFAC Representation. The Borrower and each Guarantor is not, and
shall not be at any time, a person with whom the Banks are restricted from doing
business under the regulations of the Office of Foreign Asset Control ("OFAC")
of the Department of Treasury of the United States of America (including, those
Persons named on OFAC's Specially Designated and Blocked Persons list) or under
any statute, executive order (including, the September 24, 2001 Executive Order
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten
to Commit, or Support Terrorism), or other governmental action and is not and
shall not engage in any dealings or transactions or otherwise be associated with
such persons. In addition, the Borrower hereby agrees to provide to the
Administrative Agent any information that the Administrative Agent deems
necessary from time to time in order to ensure compliance with all applicable
Laws concerning money laundering and similar activities.
ARTICLE 5
AFFIRMATIVE COVENANTS OTHER THAN
INFORMATION AND REPORTING REQUIREMENTS
So long as any Advance remains unpaid, or any Letter of Credit remains
outstanding, or any other Obligation remains unpaid, or any portion of the
Commitments remains in force, Borrower shall, and shall cause the other Loan
Parties and its other Subsidiaries to, unless the Administrative Agent (with the
written approval of the Requisite Banks) otherwise consents:
5.1 Payment of Taxes and Other Potential Liens. Pay and discharge promptly
all taxes, assessments and governmental charges or levies imposed upon any of
them, upon their respective Property or any part thereof and upon their
respective income or profits or any part thereof, and all claims for labor,
materials or supplies that if unpaid might by Law become a Lien upon any of
their respective Property, except that the Loan Parties and their respective
Subsidiaries shall not be required to pay or cause to be paid (a) any tax,
assessment, charge, levy or claim that is not yet past due, or is being
contested in good faith by appropriate proceedings so long as the relevant
entity has established and maintains adequate reserves for the payment of the
same or (b) any immaterial tax or claim so long as no material Property of the
Loan Parties or their Subsidiaries is at immediate risk of being seized, levied
upon or forfeited.
5.2 Preservation of Existence. Preserve and maintain their respective
existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the ownership
or leasing of their respective Properties except (a) as otherwise permitted by
this Agreement and (b) where the failure to so qualify or remain qualified would
not constitute a Material Adverse Effect.
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5.3 Maintenance of Projects. Maintain, preserve and protect all of their
respective Income-Producing Projects in good order and condition, subject to
wear and tear in the ordinary course of business, and not permit any waste of
their respective Projects.
5.4 Maintenance of Insurance. Maintain liability, casualty and other
insurance (subject to customary deductibles and retentions) with responsible
insurance companies in such amounts and against such risks as is carried by
responsible companies engaged in similar businesses and owning similar assets in
the general areas in which the Loan Parties or such Subsidiaries, as applicable,
operate. Without limiting the foregoing, upon request of the Administrative
Agent, each Loan Party shall maintain for itself, and its Subsidiaries, or cause
each of its Subsidiaries to maintain, terrorism insurance in form, substance and
amount as is reasonably satisfactory to the Administrative Agent.
5.5 Compliance With Laws. Comply with all Requirements of Law
noncompliance with which would constitute a Material Adverse Effect, except that
the Loan Parties or such Subsidiaries need not comply with a Requirement of Law
then being contested by any of them in good faith by appropriate proceedings.
5.6 Permitted Business Activities. Engage only in Permitted Business
Activities, and only own assets and make Investments that will be used in
connection with such Permitted Business Activities and are incidental thereto.
5.7 Keeping of Records and Books of Account. Keep adequate records and
books of account reflecting all financial transactions in conformity with
Generally Accepted Accounting Principles, consistently applied.
5.8 Compliance With Agreements. Promptly and fully comply with all
Contractual Obligations to which any one or more of them is a party, except for
any such Contractual Obligations (a) the performance of which would cause a
Default, (b) then being contested by any of them in good faith by appropriate
proceedings or (c) the failure with which to comply would not reasonably be
expected to constitute a Material Adverse Effect.
5.9 Use of Proceeds. Use the proceeds of (i) all Line Loans and issuances
of Letters of Credit for working capital and general corporate purposes of the
Loan Parties, including the refinancing of existing and future Indebtedness, and
(ii) all Term Loans to fund future Project acquisitions, to provide for working
capital (including without limitation the funding of costs associated with the
development and/or redevelopment of Projects and other costs incurred in the
acquisition, operation, sale, financing and management of Projects) and other
general corporate purposes, in each case in connection with the Permitted
Business Activities.
5.10 Hazardous Materials Laws. Keep and maintain all Projects and each
portion thereof in compliance in all material respects with all applicable
material Hazardous Materials Laws and promptly notify the Administrative Agent
in writing (attaching a copy of any pertinent written material) of (a) any and
all material enforcement, cleanup, removal or regulatory actions instituted,
completed or threatened in writing by a Governmental Agency pursuant to any
applicable material Hazardous Materials Laws, (b) any and all material claims
made or threatened in writing by any Person against the Loan Parties or their
respective Subsidiaries relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous Materials and (c)
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discovery by any Senior Officer of any of the Loan Parties or any of their
respective Subsidiaries of any material occurrence or condition on any Project
that could reasonably be expected to cause such Project to be subject to any
restrictions on the ownership, occupancy, transferability or use of such Project
under any applicable Hazardous Materials Laws.
5.11 Qualified Unencumbered Projects. Cause each Project in the
Unencumbered Pool to remain a Qualified Unencumbered Project so long as it is in
the Unencumbered Pool; provided that nothing herein shall preclude the removal
of any Project from the Unencumbered Pool pursuant to Section 2.11.
5.12 REIT Status. Maintain the status and election of Parent as a "real
estate investment trust" under Section.856 of the Code and comply with the
dividend and other requirements applicable under Section.857(a) of the Code.
5.13 Additional Guarantors. Cause each Wholly Owned Subsidiary of Borrower
which is not then a Guarantor and which owns a Project that is or will become
part of the Unencumbered Pool to execute and deliver the Joinder Agreement
concurrently with the addition of such Project to the Unencumbered Pool.
5.14 Inspection of Properties and Books. Permit the Banks, through the
Administrative Agent or any representative designated by the Administrative
Agent, at Borrower's expense, to visit and inspect any of the properties of the
Loan Parties or any of their respective Subsidiaries (subject to the rights of
any tenants), to examine the books of account of the Loan Parties and their
respective Subsidiaries (and to make copies thereof and extracts therefrom) and
to discuss the affairs, finances and accounts of the Loan Parties and their
respective Subsidiaries with, and to be advised as to the same by, their Senior
Officers, all at such reasonable times (during normal business hours) and
intervals as the Administrative Agent or any Bank may reasonably request upon
reasonable notice; provided, however, that inspections made at Borrower's
expense shall be limited to once per year, unless an Event of Default shall have
occurred and be continuing. The Banks shall use good faith efforts to coordinate
such visits and inspections so as to minimize the interference with and
disruption to the Loan Parties' or such Subsidiaries' normal business
operations.
5.15 More Restrictive Agreements. Promptly notify the Administrative Agent
should any Loan Party or any Subsidiary of a Loan Party enter into or modify any
agreements or documents pertaining to any existing or future Indebtedness, Debt
Offering or issuance of Preferred Equity, which agreements or documents include
covenants, whether affirmative or negative, which are individually or in the
aggregate more restrictive as to the matters covered by the definitions of the
terms "Borrowing Base" or "Facility Availability Amount", or the provisions of
Sections 5.17, 6.1, 6.3, 6.5 through 6.13, inclusive, or 6.15 (or any other
provisions which may have the same practical effect as any of the foregoing)
against any of the Loan Parties or their respective Subsidiaries than those set
forth herein, or which provide for a guaranty of the obligations thereunder by a
Person that is not liable for the Obligations. If requested by the Requisite
Banks, the Loan Parties, the Administrative Agent, and the Requisite Banks shall
promptly amend this Agreement and the other Loan Documents to include some or
all of such more restrictive provisions or provide for a guaranty of the
Obligations by such Person, in each case solely for the duration of such
restrictive provisions or guaranties under such other agreements or documents,
as determined by the Requisite Banks in their sole reasonable discretion.
Notwithstanding the foregoing, this Section 5.15 shall not apply to
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covenants contained in any agreements or documents that relate only to a
specific Project that is collateral for any existing or future Indebtedness of
any of Borrower or their Subsidiaries that is permitted by the terms of this
Agreement.
5.16 Distributions of Income to the Loan Parties. Cause all of their
respective Subsidiaries to promptly transfer to the applicable Loan Party (but
not less frequently than once each Fiscal Quarter), whether in the form of
dividends, distributions or otherwise, all profits, proceeds or other income
relating to or arising from its Subsidiaries' use, operation, financing,
refinancing, sale or other disposition of their respective Property in excess of
$1,000,000 in the aggregate after (a) the payment by each Subsidiary of debt
service on its Indebtedness and operating expenses for such quarter and (b) the
establishment of reasonable reserves for the payment of operating expenses and
capital improvements to be made to such Subsidiary's assets and properties
approved by such Subsidiary in the ordinary course of business consistent with
its past practices.
5.17 Unencumbered Pool.
(a) Cause each of the Income-Producing Projects in the Unencumbered
Pool to satisfy all of the following conditions (or notify the Administrative
Agent when an Income-Producing Project no longer satisfies such conditions
promptly upon obtaining knowledge thereof and within five (5) Banking Days
thereafter remove such Income-Producing Project from the Unencumbered Pool in
accordance with Section 2.11):
(i) each of the Income-Producing Projects shall be wholly
owned in fee simple by Borrower or a Wholly-Owned Subsidiary of Borrower (other
than as specified in the definition of Qualified Unencumbered Project with
respect to the Exception Projects);
(ii) the Income-Producing Projects in the Unencumbered Pool
shall at all times have an aggregate leasing and occupancy level (on a portfolio
basis) of at least eighty five percent (85%) of the Net Rentable Area within
such Projects, based on bona fide arm's length tenant leases which are in full
force and effect requiring current rental payments, which are in good standing
and not in default in any material respect and whose tenants are not subject to
any bankruptcy or other insolvency proceeding and with respect to which the
tenant is in occupancy of the leased premises ("Currently Effective Leases");
and no individual Income-Producing Project may be less than 50% leased and
occupied pursuant to Currently Effective Leases (other than (i) the Xxxxxxx
Square A Project, which shall not be subject to such restriction as to occupancy
while such Project is leased to Vertex Pharmaceuticals, Incorporated ("Vertex")
under its current lease agreements at such Project , but shall become subject to
such occupancy restriction if such Vertex leases are terminated and (ii) the
Project known as "201 Industrial Road" (which is being prepared for occupancy by
the tenant thereof as of the Closing Date), which shall not be subject to such
restriction as to occupancy until December 31, 2005, and provided in both cases
that such Projects must comply at all times with such 50% requirement as to
leasing);
(iii) no individual Income-Producing Project in the
Unencumbered Pool may contribute to the Borrowing Base more than 33% of the
total amount of the Borrowing Base;
(iv) if any single tenant contributes in excess of 20% (or 23%
solely in the case of Vertex under its current leases) of the annual minimum
rent generated by all tenants in the
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Income-Producing Projects in the Unencumbered Pool, such excess shall be
excluded from the calculation of Adjusted Unencumbered NOI and Adjusted
Aggregate Current Value; and
(v) Borrower shall not, and shall not permit any Wholly-Owned
Subsidiary of Borrower to, add any Income-Producing Project to the Unencumbered
Pool, or enter into any lease of space at any Income-Producing Project in the
Unencumbered Pool, that would cause any group of tenants in the Income-Producing
Projects then included in the Unencumbered Pool which are Affiliates to generate
more than 20% of the annual minimum rent generated by all tenants in such
Income-Producing Projects then included in the Unencumbered Pool.
(b) Cause all of the Unstabilized Projects in the Unencumbered Pool
to satisfy all of the following conditions (or notify the Administrative Agent
when an Unstabilized Project no longer satisfies such conditions promptly upon
obtaining knowledge thereof and within five (5) Banking Days thereafter remove
such Unstabilized Project from the Unencumbered Pool in accordance with Section
2.11):
(i) each of the Unstabilized Projects shall be wholly owned in
fee simple by Borrower or a Wholly-Owned Subsidiary of Borrower; and
(ii) each of the Unstabilized Projects in the Unencumbered
Pool must be at least 50% pre-leased pursuant to bona fide arm's length tenant
leases which are not in default and whose tenants are not subject to any
bankruptcy or other insolvency proceeding and which shall require rent to
commence (after a free rent period of not to exceed six (6) months) upon the
completion of the Life Sciences Building(s) to be constructed on such
Unstabilized Project.
(c) Provide to the Administrative Agent as of the Closing Date and
concurrently with the delivery of the financial statements described in Section
7.1(c) as part of the Compliance Certificate required pursuant to Section 7.2,
(i) a list of the Income-Producing Projects and the Unstabilized Projects in the
Unencumbered Pool, (ii) the certification of a Senior Officer of Borrower of the
Adjusted Current Values of the Income-Producing Projects and the amounts of
Invested Cash with respect to the Unstabilized Projects (and the status of
construction thereon), and that such Projects are in compliance with Sections
5.17(a) and (b), (iii) operating statements setting forth the NOI and Net
Capital Expenditures for each of the Income-Producing Projects in the
Unencumbered Pool for the previous four (4) fiscal quarters (or such shorter
period as the Income-Producing Project has been held by the Loan Parties if such
statements are not available to Borrower) certified as true and correct by a
Senior Officer of Borrower, and (iv) a certificate that the Income-Producing
Projects and the Unstabilized Projects in the Unencumbered Pool comply in all
material respects with the terms of Sections 4.17 and 4.19.
5.18 Preservation of Right to Pledge Properties in the Unencumbered Pool.
Take such actions as are necessary to preserve its right and ability to pledge
Projects in the Unencumbered Pool to the Administrative Agent without any such
pledge after the date hereof causing or permitting the acceleration (after the
giving of notice or the passage of time, or otherwise) of any other Indebtedness
of the Loan Parties or any of their respective Subsidiaries. Borrower shall,
upon demand, provide to the Administrative Agent such evidence as the
Administrative Agent may reasonably require to evidence compliance with this
Section 5.18, which evidence shall include, without limitation, copies of any
agreements or instruments which would in any way restrict or limit
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a Loan Party's ability to pledge assets as security for Indebtedness, or which
provide for the occurrence of a default (after the giving of notice or the
passage of time, or otherwise) if assets are pledged in the future as security
for Indebtedness of such Loan Party or any of its Subsidiaries.
ARTICLE 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any Letter of Credit remains
outstanding, or any other Obligation remains unpaid, or any portion of the
Commitments remains in force, the Loan Parties and their respective Subsidiaries
shall not, unless the Administrative Agent (with the written approval of the
Requisite Banks or, if required by Section 12.1, of all of the Banks) otherwise
consents:
6.1 Mergers and Liquidation. (i) Merge or consolidate with or into any
Person, except a merger or consolidation of one or more Loan Parties with and
into another Loan Party or one or more Subsidiaries of a Loan Party with and
into another Subsidiary of such Loan Party or another Loan Party, provided that
in all cases Parent and Borrower must both be surviving entities or (ii) agree
to sell, transfer or dispose of assets which, when aggregated with all other
assets sold during the current Fiscal Quarter and the three (3) preceding Fiscal
Quarters, would exceed twenty percent (20%) of the then-current Gross Asset
Value. Notwithstanding the foregoing, Borrower may permit the merger or
consolidation of any "Subject Property Owner" or any transfer of a "Subject
Property" (as such terms are defined under the Secured Term Loan Agreement) so
long as such transaction is permitted by, and satisfies the requirements of, the
Secured Term Loan Agreement.
6.2 ERISA. (a) At any time, permit any Pension Plan to: (i) engage in any
non exempt "prohibited transaction" (as defined in Section 4975 of the Code)
that would constitute a Material Adverse Effect, (ii) fail to comply with ERISA
in a manner that would constitute a Material Adverse Effect, (iii) incur any
material "accumulated funding deficiency" (as defined in Section 302 of ERISA)
to the extent that it would constitute a Material Adverse Effect or (iv)
terminate in any manner that would constitute a Material Adverse Effect, or (b)
withdraw, completely or partially, from any Multiemployer Plan if to do so would
constitute a Material Adverse Effect.
6.3 Permitted Business Activities. Engage in or pursue any business or
other activities or ventures other than Permitted Business Activities, or
otherwise make any material change in the principal nature of the business of
the Consolidated Group.
6.4 Transactions with Affiliates. Enter into any transaction of any kind
with any Affiliate of the Loan Parties or their respective Subsidiaries other
than (a) salary, bonus, employee stock option, relocation assistance and other
compensation arrangements with directors or officers in the ordinary course of
business, (b) transactions that are fully disclosed to the board of directors of
Parent and expressly authorized by a resolution of the board of directors of
Parent which is approved by a majority of the directors not having an interest
in the transaction, (c) transactions expressly permitted by this Agreement, (d)
transactions between one Loan Party and another Loan Party or one Subsidiary and
another Subsidiary or one Subsidiary and a Loan Party and (e) transactions on
overall terms at least as favorable to the Loan Parties or their Subsidiaries as
would be the case in an arm's length transaction between unrelated parties of
equal bargaining power.
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6.5 Leverage Ratio. Permit the Leverage Ratio to be greater than 60%;
provided, however, that the maximum permitted Leverage Ratio is hereby increased
to 65%, for a period of six (6) months from the Agreement Effective Date (the
"Increased Leverage Period"); provided further, however, that if, not less than
ten (10) days prior to the expiration of the Increased Leverage Period, Borrower
so requests in writing and the Requisite Banks so approve, in their sole
discretion, the Increased Leverage Period may be extended for up to an
additional six (6) months. During the Increased Leverage Period, including any
such extension thereof, the Applicable Margin with respect to LIBOR Rate Loans
shall be increased to 2.00% and the Applicable Margin with respect to Alternate
Base Rate Loans shall be increased to 0.50% as provided in the definition of
"Applicable Margin".
6.6 Interest Coverage. Permit the Interest Coverage Ratio, as of any day,
to be less than 2.00 to 1.00.
6.7 Fixed Charge Coverage. Permit the Fixed Charge Coverage Ratio, as of
any day, to be less than 1.70 to 1.00.
6.8 Distributions. Make any Distribution (a) if such Distribution for any
Fiscal Quarter alone, with respect to each Fiscal Quarter ending on or before
September 30, 2005, or for such Fiscal Quarter and the preceding three (3)
Fiscal Quarters, with respect to each Fiscal Quarter ending after September 30,
2005 would exceed (A) 95% of Funds From Operations of the Consolidated Group
plus revenue of the Consolidated Group from master leases of the KOP Project and
the Bayshore Project or (B) 100% of Funds Available for Distribution for such
period (provided that Parent shall be permitted to pay the minimum Distribution
required under the Code to maintain and preserve Parent's status as a real
estate investment trust under the Code, as evidenced by a certification of a
Senior Officer of Parent containing calculations in reasonable detail
satisfactory in form and substance to the Administrative Agent, if such
Distribution is greater than the amount set forth in this clause (a)) and
provided further that if an Event of Default has occurred and is continuing, the
Loan Parties may only make those Distributions expressly permitted under Section
6.8(b)), or (b) during the continuance of an Event of Default, in excess of the
minimum amount necessary to comply with Section 857(a) of the Code, provided
that if a monetary Event of Default or an Event of Default which involves the
bankruptcy of a Loan Party or which has resulted in an acceleration of the
Obligations hereunder occurs, no further Distributions may be made.
6.9 Net Worth. Permit Net Worth, as of any date, to be less than the sum
of (a) $350,000,000, plus (b) eighty-five percent (85%) of the net proceeds from
any Equity Offering of any Loan Party made after the Closing Date.
6.10 Unsecured Debt Service Coverage. Permit the Unsecured Debt Service
Coverage Ratio, as of any date, to be less than 1.75 to 1.00.
6.11 Secured Indebtedness. Permit Secured Indebtedness of the Consolidated
Group to exceed, as of any date, an amount equal to 50% of then-current Gross
Asset Value.
6.12 Recourse Debt. Permit any recourse Indebtedness (whether secured or
unsecured), other than under this Agreement, and the Secured Term Loan Agreement
(collectively, the "Related Facilities"), to exist until the aggregate
outstanding Indebtedness under the Related Facilities does
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not exceed 40% of Gross Asset Value (the "Changeover Date"), provided that (i)
until the Changeover Date only, the Consolidated Group may incur recourse
Indebtedness in addition to the Indebtedness under the Related Facilities so
long as such additional recourse Indebtedness does not exceed in the aggregate
$35,000,000 and (ii) after such Changeover Date the aggregate of all outstanding
recourse Indebtedness (including all Indebtedness under the Related Facilities
and any other recourse Indebtedness), as of any date, shall not exceed 40% of
then-current Gross Asset Value.
6.13 Permitted Investments. Without limiting Section 5.6:
(a) permit the sum of (i) the total value of undeveloped land owned
by the Consolidated Group plus (ii) the Consolidated Group Pro Rata Share of
undeveloped land owned by Investment Affiliates to exceed 10% of Gross Asset
Value (with undeveloped land valued at cost);
(b) permit the sum of (i) the aggregate amount invested by the
Consolidated Group in Projects owned by the Consolidated Group that are under
development and budgeted to be invested to achieve Stabilization of such
Projects, plus (ii) the Consolidated Group Pro Rata Share of any amounts so
invested and budgeted to be invested by the Investment Affiliates in Projects
owned by the Investment Affiliates that are under development to exceed 10% of
Gross Asset Value (with Projects under development ceasing to be treated as such
when GAAP permits such Project to be classified as an operating asset);
(c) permit the aggregate amount invested by the Consolidated Group
in assets other than Projects or cash or Cash Equivalents to exceed 10% of Gross
Asset Value;
(d) permit the aggregate amount invested by the Consolidated Group
in or with respect to Investment Affiliates, excluding the partnership that owns
the real property located in San Diego, California commonly known as the
"XxXxxxxx Court" property, to exceed 10% of Gross Asset Value; and
(e) permit the aggregate amount invested by the Consolidated Group
in the Investments listed as subparagraphs (a) through (d) immediately above to
exceed 25% of Gross Asset Value.
6.14 Liens. Create, incur, or suffer to exist any Negative Pledge or Lien
in, of or on the Project of any member of the Consolidated Group, except:
(a) Liens for taxes, assessments or governmental charges or levies
on its Property if the same shall not at the time be delinquent or thereafter
can be paid without material penalty, or are being contested in good faith and
by appropriate proceedings and for which adequate reserves shall have been set
aside on its books;
(b) Liens imposed by Law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 60 days past due or
which are being contested in good faith by appropriate proceedings and for which
adequate reserves shall have been set aside on their books;
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(c) Liens arising out of pledges or deposits under workers'
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation;
(d) easements, restrictions and such other encumbrances or charges
against real property as are of a nature generally existing with respect to
properties of a similar character (including, without limitation, Liens with
respect to rights of tenants under lease and rental agreements entered into in
the ordinary course of business) and which do not in any material way affect the
marketability of the same or interfere with the use thereof in the business of
Borrower or any other member of the Consolidated Group;
(e) Liens created under the Secured Term Loan Agreement or any
documents relating thereto;
(f) any other Liens that, individually or in the aggregate, would
not reasonably be expected to impair the ability to place mortgage financing on
the Project encumbered by such Liens or otherwise constitute a Material Adverse
Effect or subject such Project to a material impending risk of loss of
forfeiture or a material loss of value; and
(g) first priority Liens other than Liens described in subsections
(a) through (f) above arising in connection with any Indebtedness permitted
hereunder to the extent such Liens will not result in a Default in any of
Borrower's covenants herein.
Liens permitted pursuant to this Section 6.14 shall be deemed to be "Permitted
Liens."
6.15 Variable Interest Indebtedness. Permit the outstanding principal
balance of any Consolidated Outstanding Indebtedness which bears interest at an
interest rate that is not fixed through the maturity date of such Indebtedness
to exceed thirty-five percent (35%) of Gross Asset Value unless all of such
Indebtedness in excess of such amount is subject to a rate management
transaction approved in its reasonable discretion by the Administrative Agent
that effectively converts the interest rate on such excess to a fixed rate.
6.16 Formation Documents. Permit any material change to the articles of
incorporation, bylaws, partnership agreement or any other material formation
documents of Parent or the Operating Partnership without the written consent of
the Requisite Banks, other than with respect to changes made in connection with
any preferred Equity Offering to reflect the terms of the preferred securities
being issued thereunder and any other amendments incidental thereto which may be
made without the Requisite Banks consent, so long as the Administrative Agent
has reviewed such changes and confirmed that the terms of such preferred
securities are customary and do not create any creditors' rights that would
adversely affect in any material respect the rights of the Banks hereunder.
6.17 Limiting Agreements. Enter into any agreement, instrument or
transaction (including without limitation any amendment to or modification of
the Secured Term Loan Agreement) which has or may have the effect of prohibiting
or limiting Borrower's or any Guarantor's ability to pledge to the
Administrative Agent any Project within the Unencumbered Pool.
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6.18 Restrictions on Transfer. Directly or indirectly, make or permit to
be made, by voluntary or involuntary means, any sale, assignment, transfer,
disposition, mortgage, pledge, hypothecation or encumbrance of its direct or
indirect interest in any Loan Party (provided that the foregoing shall not
prohibit transfers of Borrower's interest in any other Loan Party provided such
Loan Party remains a Wholly-Owned Subsidiary of Borrower), or any dilution of
its direct or indirect interest in any Loan Party. Borrower shall not in any
manner transfer, assign, diminish or otherwise restrict its direct or indirect
right to vote or other rights with respect to any Loan Party. Notwithstanding
the foregoing, Borrower may sell, assign, transfer or dispose of its interest in
another Loan Party that is a Subsidiary of Borrower, provided that on or before
the closing of such sale Borrower shall have delivered to the Administrative
Agent a certification, together with such other evidence as the Administrative
Agent may reasonably require, that Borrower will be in compliance with all
covenants in this Agreement after giving effect to such sale, assignment,
transfer or other disposition, and provided further that from and after any such
sale, the assets of such Loan Party shall no longer be included within the
Unencumbered Pool.
ARTICLE 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any Advance remains
unpaid, or any Letter of Credit remains outstanding, or any other Obligation
remains unpaid, or any portion of the Commitments remains in force, Borrower
shall, unless the Administrative Agent (with the written approval of the
Requisite Banks) otherwise consents, at Borrower's sole expense, deliver to the
Administrative Agent for distribution by it to the Banks, a sufficient number of
copies for all of the Banks of the following:
(a) As soon as practicable, and in any event within fifty (50) days
after the end of each Fiscal Quarter (other than the fourth Fiscal Quarter in
any Fiscal Year), quarterly unaudited consolidated financial statements,
including a consolidated balance sheet, income statement and statement of cash
flows of the Consolidated Group as at the end of such Fiscal Quarter and for
such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal
Quarter, all in reasonable detail. Such financial statements shall be certified
by the Parent's chief financial officer or chief accounting officer as fairly
presenting the financial condition, results of operations and cash flows of the
Consolidated Group in accordance with Generally Accepted Accounting Principles
(other than footnote disclosures), consistently applied, as at such date and for
such periods, subject only to normal year end accruals and audit adjustments;
(b) As soon as practicable, and in any event within fifty (50) days
after the end of each Fiscal Quarter, a Compliance Certificate as of the last
day of such Fiscal Quarter, providing reasonable detail as to the calculation
thereof;
(c) As soon as practicable, and in any event within fifty (50) days
after the end of each Fiscal Quarter, statements of operating income for such
Fiscal Quarter and Fiscal Year to date for each of the Income-Producing Projects
in the Unencumbered Pool and a complete Project roster, each in such detail as
the Administrative Agent may reasonably require
(d) All written information provided to shareholders of Parent;
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(e) As soon as practicable, and in any event within one hundred
(100) days after the end of each Fiscal Year, annual audited consolidated
financial statements, including a consolidated balance sheet, income statement
and statement of cash flows, of the Consolidated Group for such Fiscal Year, all
in reasonable detail. Such financial statements shall be prepared in accordance
with Generally Accepted Accounting Principles, consistently applied, and shall
be certified by the Parent's chief financial officer or chief accounting officer
and by KPMG or other independent public accountants of recognized standing
selected by Parent and reasonably satisfactory to the Requisite Banks, which
financial statements shall be prepared in accordance with generally accepted
auditing standards as at such date, and shall not be subject to any
qualifications or exceptions as to the scope of the audit nor to any other
qualification or exception determined by the Requisite Banks in their good faith
business judgment to be adverse to the interests of the Banks;
(f) Upon request by the Administrative Agent, as soon as
practicable, and in any event before the commencement of each Fiscal Year, a
budget and projection by Fiscal Quarter for that Fiscal Year for the
Consolidated Group, all in reasonable detail;
(g) Promptly after request by the Administrative Agent or any Bank,
copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of
directors) of Parent by independent accountants in connection with the accounts
or books of Parent or any other member of the Consolidated Group, or any audit
of any of them;
(h) Promptly after the same are available, and in any event within
ten (10) days after filing with the Securities and Exchange Commission, copies
of each annual report, proxy or financial statement or other report or
communication sent to the stockholders of Parent, and copies of all annual,
regular, periodic and special reports and registration statements which Parent
may file or be required to file with the Securities and Exchange Commission
under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended,
and not otherwise required to be delivered to the Banks pursuant to other
provisions of this Section 7.1;
(i) Promptly after request by the Administrative Agent or any Bank,
copies of any other material report or other document that was filed by the
Consolidated Group with any Governmental Agency;
(j) Promptly upon a Senior Officer becoming aware, and in any event
within five (5) Banking Days after becoming aware, of the occurrence of any (i)
"reportable event" (as such term is defined in Section 4043 of ERISA, but
excluding such events as to which the PBGC has by regulation waived the
requirement therein contained that it be notified within thirty days of the
occurrence of such event) or (ii) non exempt "prohibited transaction" (as such
term is defined in Section 406 of ERISA or Section 4975 of the Code) involving
any Pension Plan or any trust created thereunder, telephonic notice specifying
the nature thereof, and, no more than two (2) Banking Days after such telephonic
notice, written notice again specifying the nature thereof and specifying what
action the Consolidated Group is taking or proposes to take with respect
thereto, and, when known, any action taken by the Internal Revenue Service with
respect thereto;
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(k) As soon as practicable, and in any event within five (5) Banking
Days after a Senior Officer becomes aware of the existence of any condition or
event which constitutes a Default or Event of Default, telephonic notice
specifying the nature and period of existence thereof, and, no more than five
(5) Banking Days after such telephonic notice, written notice again specifying
the nature and period of existence thereof and specifying what action the
Consolidated Group is taking or propose to take with respect thereto;
(l) Promptly upon a Senior Officer becoming aware that (i) any
Person has commenced a legal proceeding with respect to a claim against any Loan
Party that is $5,000,000 or more in excess of the amount thereof that is fully
covered by insurance, (ii) any creditor under a credit agreement involving
Indebtedness of $5,000,000 or more or any lessor under a lease involving
aggregate rent of $5,000,000 or more has asserted a default thereunder on the
part of any Loan Party or, (iii) any Person has commenced a legal proceeding
with respect to a claim against any Loan Party under a contract (that is not a
credit agreement or material lease) in excess of $5,000,000 or which otherwise
would constitute a Material Adverse Effect, a written notice describing the
pertinent facts relating thereto and what action the Loan Parties are taking or
propose to take with respect thereto;
(m) [Intentionally Omitted.]
(n) Not later than fifty (50) days after the end of each fiscal
quarter of the Consolidated Group (including the fourth fiscal quarter in each
year), a list (which may be included in the Compliance Certificates) setting
forth the following information with respect to each new Subsidiary or
Controlled Entity of any of the Loan Parties: (i) the name, structure and
ownership of the Subsidiary or Controlled Entity, (ii) a description of the
property owned by such Subsidiary or Controlled Entity, and (iii) such other
information as the Administrative Agent may reasonably request;
(o) Simultaneously with the delivery of the financial statements
referred to in Section 7.1(e) above (if such information is not otherwise
included in the financial statements or other information presented to the Banks
pursuant to this Section 7.1), a statement (which may be included in the
Compliance Certificates) listing (i) the Projects owned by the Consolidated
Group (or in which the Consolidated Group owns an interest) and stating the
location thereof, the date acquired and the acquisition cost, (ii) the
Indebtedness of the Consolidated Group, which statement shall include, without
limitation, a statement of the original principal amount of such Indebtedness
and the current amount outstanding, the holder thereof, the maturity date and
any extension options, the interest rate, the collateral provided for such
Indebtedness and whether such Indebtedness is recourse or non recourse, and
(iii) the Projects of the Consolidated Group which are Unstabilized Projects and
providing a brief summary of the status of such development;
(p) When and as required by Section 2.11, the information regarding
each Qualified Unencumbered Project, as more particularly described in Section
2.11;
(q) When and as required by Section 5.17(c), the information
regarding the Unencumbered Pool, as more particularly described in Section
5.17(c); and
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(r) Such other data and information as from time to time may be
reasonably requested by the Administrative Agent, any Bank (through the
Administrative Agent) or the Requisite Banks.
7.2 Compliance Certificates. So long as any Advance remains unpaid, or any
Letter of Credit remains outstanding, or any other Obligation remains unpaid or
unperformed, or any portion of the Commitments remains outstanding, Borrower
shall, at Borrower's sole expense, deliver to the Administrative Agent for
distribution by it to the Banks concurrently with the financial statements
required pursuant to Sections 7.1(a), 7.1(c) and 7.1(e), Compliance Certificates
signed by a Senior Officer.
7.3 Borrowing Base and Availability Calculations. So long as any Advance
remains unpaid, or any Letter of Credit remains outstanding, or any other
Obligation remains unpaid or unperformed, or any portion of the Commitments
remains outstanding, Borrower shall, at Borrower's sole expense, deliver to the
Administrative Agent for distribution by it to the Banks, within 15 days
following the addition of each Qualified Unencumbered Project to the
Unencumbered Pool pursuant to Section 2.11, and within 50 days of the end of
each Fiscal Quarter, Borrower's calculation of the then effective amount of the
Borrowing Base and Facility Availability Amount (utilizing the information for
the most recently reported Fiscal Quarter), in form and detail reasonably
satisfactory to the Administrative Agent (provided, however, that the
Administrative Agent may review, challenge, and, after good faith consultation
with Borrower, adjust any such calculations of the applicable Borrowing Base and
Facility Availability Amount as it reasonably deems appropriate should the
Administrative Agent in good faith believe that such calculations are not
accurate or are not in conformance with the terms of this Agreement).
ARTICLE 8
CONDITIONS
8.1 Initial Advances. The obligation of each Bank to make the initial
Advance to be made by it or of the Administrative Agent to issue the initial
Letters of Credit is subject to the following conditions precedent, each of
which shall be satisfied prior to the making of the initial Advances (unless all
of the Banks, in their sole and absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified, each
properly executed by a Responsible Official of each party thereto, each dated as
of the Closing Date and each in form and substance satisfactory to the
Administrative Agent and its legal counsel (unless otherwise specified or, in
the case of the date of any of the following, unless the Administrative Agent
otherwise agrees or directs):
(i) at least one (1) executed counterpart of this Agreement
and of the Guaranties, together with arrangements satisfactory to the
Administrative Agent for additional executed counterparts, sufficient in number
for distribution to the Banks and Borrower;
(ii) Line Notes executed by Borrower in favor of each Bank,
each in a principal amount equal to that Bank's Percentage of the Aggregate Line
Commitment;
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(iii) Term Notes executed by Borrower in favor of each Bank,
each in a principal amount equal to that Bank's Percentage of the Aggregate Term
Commitment;
(iv) Swing Loan Note executed by Borrower in favor of the
Swing Loan Bank in the principal amount of the Swing Loan Commitment;
(v) with respect to each of the Loan Parties, such
documentation as the Administrative Agent may reasonably require to establish
the due organization, valid existence and good standing of each of the Loan
Parties, its qualification to engage in business in each material jurisdiction
in which it is engaged in business or required to be so qualified, its authority
to execute, deliver and perform the Loan Documents to which it is a Party, the
identity, authority and capacity of each Responsible Official thereof authorized
to act on its behalf, including certified copies of articles of incorporation
and amendments thereto, bylaws and amendments thereto, certificates of good
standing and/or qualification to engage in business, tax clearance certificates,
certificates of corporate resolutions, incumbency certificates, Certificates of
Responsible Officials, and the like;
(vi) the Opinions of Counsel; and
(vii) such other assurances, certificates, documents, consents
or opinions as the Administrative Agent or the Requisite Banks reasonably may
require.
(b) All of the fees then required to have been paid under the Fee
Letter shall have been paid.
(c) The Administrative Agent shall have received evidence reasonably
satisfactory to it that prior to or substantially concurrently with the Closing
Date, the existing revolving credit facility of the Loan Parties with U.S. Bank
has been terminated and all Indebtedness thereunder repaid in full.
(d) The reasonable costs and expenses of the Administrative Agent in
connection with the preparation of the Loan Documents payable pursuant to
Section 11.3, and invoiced to Borrower on or prior to the Closing Date, shall
have been paid.
(e) The representations and warranties of Borrower contained in
Article 4 shall be true and correct in all material respects.
(f) Borrower and any other Loan Parties shall be in compliance with
all the terms and provisions of the Loan Documents, and giving effect to the
initial Advance no Default or Event of Default shall have occurred and be
continuing.
(g) All legal matters relating to the Loan Documents shall be
satisfactory to counsel for the Administrative Agent.
(h) The Administrative Agent shall have received a Compliance
Certificate (including existing Borrowing Base and Facility Availability Amount
calculations) dated as of the Closing Date demonstrating compliance with each of
the then applicable covenants calculated therein.
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(i) The Administrative Agent shall have received and approved all of
the materials described in Section 2.11 with respect to the Initial Unencumbered
Projects.
(j) The Administrative Agent shall have reviewed such other
documents, instruments, certificates, opinions, assurances, consents and
approvals as the Administrative Agent or the Administrative Agent's special
counsel may reasonably have requested.
8.2 Any Advance. The obligation of each Bank to make any Advance or of the
Swing Loan Bank to make a Swing Loan or of the Administrative Agent to issue a
Letter of Credit is subject to the following conditions precedent (unless the
Requisite Banks, in their sole and absolute discretion, shall agree otherwise):
(a) except (i) for representations and warranties which expressly
speak as of a particular date or are no longer true and correct as a result of a
change which is permitted by this Agreement or (ii) as disclosed by Borrower and
approved in writing by the Requisite Banks, the representations and warranties
contained in Article 4 shall be true and correct in all material respects on and
as of the date of the Advance as though made on that date;
(b) other than matters described in Schedule 4.10 or not required as
of the Closing Date to be therein described, there shall not be then pending or
threatened any action, suit, proceeding or investigation against or affecting
Parent or any of its Subsidiaries or any Property of any of them before any
Governmental Agency that constitutes a Material Adverse Effect;
(c) the Administrative Agent shall have timely received a Request
for Loan or Letter of Credit Request in compliance with Article 2;
(d) no Default or Event of Default shall have occurred and be
continuing;
(e) if requested by the Administrative Agent, the Administrative
Agent shall have received a current calculation of the Borrowing Base and
Facility Availability Amount with such supporting information as the
Administrative Agent may require adjusted in the best good faith estimate of
Borrower to the date of such certification; and
(f) the Administrative Agent shall have received, in form and
substance satisfactory to the Administrative Agent, such other assurances,
certificates, documents or consents related to the foregoing as the
Administrative Agent or Requisite Banks reasonably may require.
ARTICLE 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 Events of Default. The existence or occurrence of any one or more of
the following events, whatever the reason therefor and under any circumstances
whatsoever, shall constitute an "Event of Default":
(a) Borrower fails to pay any principal on any of the Notes, or any
portion thereof, on the date when due; or
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(b) Borrower fails to pay any interest on any of the Notes or any
fees under the Fee Letter, or any portion thereof, within five (5) Banking Days
after the date when due; or Borrower fails to pay any other fee or amount
payable to the Banks or the Administrative Agent under any Loan Document, or any
portion thereof, within ten (10) Banking Days after demand therefor; or
(c) Borrower or any of the other Loan Parties fails to comply with
any of the covenants contained in Article 6; or
(d) Borrower shall fail to comply with Section 7.1(k) in any way
that is materially adverse to the interests of the Banks; or
(e) Borrower or any other Loan Party fails to perform or observe any
other covenant or agreement (not specified in clause (a), (b) or (c) above, or
otherwise set forth below in this Section 9.1) contained in any Loan Document on
its part to be performed or observed within thirty (30) days after the giving of
notice by the Administrative Agent on behalf of the Requisite Banks of such
Default or, if such Default is not reasonably susceptible of cure within such
period, within such longer period as is reasonably necessary to effect a cure so
long as Borrower or such Loan Party continues to diligently pursue cure of such
Default but not in any event in excess of ninety (90) days; and provided
further, however, that notwithstanding the 30-day cure period or extended cure
period described above in this clause (e), if a different notice or cure period
is specified under any Loan Document or under any provision of the Loan
Documents as to any such failure or breach, the specific Loan Document or
provision shall control, and Borrower or such Loan Party shall have no more time
to cure the failure or breach than is allowed under the specific Loan Document
or provision as to such failure or breach; or
(f) Any representation or warranty of Borrower or any other Loan
Party made in any Loan Document, or in any certificate or other writing
delivered by Borrower or any Loan Party pursuant to any Loan Document, proves to
have been incorrect when made or reaffirmed in any respect that is materially
adverse to the interests of the Banks; or
(g) Borrower or any Loan Party or other member of the Consolidated
Group fails to perform or observe any other term, covenant or agreement on its
part to be performed or observed within any applicable notice and cure period,
or suffers any such event of default to occur, in connection with (A) any
present or future Indebtedness under the Secured Term Loan Agreement or any
other present or future Indebtedness (other than Non-Recourse Indebtedness) or
(B) any present or future Non-Recourse Indebtedness having an outstanding
principal balance, individually or in the aggregate, of $20,000,000 or more, if
as a result of such failure or sufferance any holder or holders thereof (or an
agent or trustee on its or their behalf) has the right to declare such
Indebtedness due before the date on which it otherwise would become due or the
right to require such member of the Consolidated Group to redeem or purchase, or
offer to redeem or purchase, all or any portion of such Indebtedness (provided,
that for the purpose of this clause (g), the principal amount of Indebtedness
consisting of a Swap Agreement shall be the amount which is then payable by the
counterparty to close out the Swap Agreement); or
(h) Any Loan Document, at any time after its execution and delivery
and for any reason other than the agreement or action (or omission to act) of
the Administrative Agent or the
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Banks or satisfaction in full of all the Obligations ceases to be in full force
and effect or is declared by a court of competent jurisdiction to be null and
void, invalid or unenforceable in any respect which is materially adverse to the
interests of the Banks; or any Loan Party thereto denies in writing that it has
any or further liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind same; or
(i) A final judgment against any member of the Consolidated Group is
entered for the payment of money in excess of $5,000,000 (not covered by
insurance or for which an insurer has reserved its rights) and, absent
procurement of a stay of execution, such judgment remains unsatisfied for sixty
(60) calendar days after the date of entry of judgment, or in any event later
than ten (10) days prior to the date of any proposed sale thereunder; or any
writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the Property of any such Person and
is not released, vacated or fully bonded within sixty (60) calendar days after
its issue or levy; or
(j) Any member of the Consolidated Group institutes or consents to
the institution of any proceeding under a Debtor Relief Law relating to it or to
all or any material part of its Property, or is unable or admits in writing its
inability to pay its debts as they mature, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its Property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of that Person and the appointment
continues undischarged or unstayed for sixty (60) calendar days; or any
proceeding under a Debtor Relief Law relating to any such Person or to all or
any part of its Property is instituted without the consent of that Person and
continues undismissed or unstayed for sixty (60) calendar days or such Person
consents thereto or acquiesces therein, or a decree or order for relief is
entered in respect of any such Person in such proceeding; or
(k) The occurrence of an Event of Default (as such term is or may
hereafter be specifically defined in any other Loan Document) under any other
Loan Document; or
(l) Any Pension Plan maintained by any member of the Consolidated
Group is determined to have a material "accumulated funding deficiency" as that
term is defined in Section 302 of ERISA of an amount that would constitute a
Material Adverse Effect; or
(m) Xxxx Xxxx shall at any time cease to be the Chief Executive
Officer of Parent; provided that the foregoing shall not constitute an Event of
Default if a competent and experienced successor for such Person shall be
approved by the Requisite Banks within three (3) months of such event, such
approval not to be unreasonably withheld, delayed or conditioned; or
(n) Failure to remediate within the time period permitted by Law or
governmental order, after all administrative hearings and appeals have been
concluded (or within a reasonable time in light of the nature of the problem if
no specific time period is so established), material environmental problems at
Projects owned by Borrower or any other member of the Consolidated Group or any
Investment Affiliate which contribute in the aggregate in excess of $5,000,000
to Gross Asset Value.
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9.2 Remedies Upon Event of Default. Without limiting any other rights or
remedies of the Administrative Agent or the Banks provided for elsewhere in this
Agreement, or the other Loan Documents, or by applicable Law, or in equity, or
otherwise:
(a) Upon the occurrence, and during the continuance, of any Event of
Default other than an Event of Default described in Section 9.1(j):
(i) the commitments to make Advances and Swing Loans and to
issue Letters of Credit and all other obligations of the Administrative Agent or
the Banks and all rights of Borrower and any other Loan Parties under the Loan
Documents shall be suspended without notice to or demand upon Borrower, which
are expressly waived by Borrower, except that all of the Banks or the Requisite
Banks (as the case may be, in accordance with Section 12.1) may waive an Event
of Default or, without waiving, determine, upon terms and conditions
satisfactory to the Banks or Requisite Banks, as the case may be, to reinstate
the Commitments and such other obligations and rights and make further Advances
and Swing Loans and to issue Letters of Credit, which waiver or determination
shall apply equally to, and shall be binding upon, all the Banks; and
(ii) the Requisite Banks may request the Administrative Agent
to, and the Administrative Agent thereupon shall, terminate the Commitments
and/or declare all or any part of the unpaid principal of all Notes, all
interest accrued and unpaid thereon and all other amounts payable under the Loan
Documents to be forthwith due and payable, whereupon the same shall become and
be forthwith due and payable, without protest, presentment, notice of dishonor,
demand or further notice of any kind, all of which are expressly waived by
Borrower.
(b) Upon the occurrence and during the continuance of any Event of
Default described in Section 9.1(j):
(i) the commitments to make Advances and Swing Loans and to
issue Letters of Credit and all other obligations of the Administrative Agent or
the Banks and all rights of Borrower and any other Loan Parties under the Loan
Documents shall terminate without notice to or demand upon Borrower, which are
expressly waived by Borrower, except that all of the Banks or the Requisite
Banks (as the case may be, in accordance with Section 12.1) may waive the Event
of Default or, without waiving, determine, upon terms and conditions
satisfactory to all the Banks, to reinstate the Commitments and such other
obligations and rights and make further Advances and Swing Loans and to issue
Letters of Credit, which determination shall apply equally to, and shall be
binding upon, all the Banks; and
(ii) the unpaid principal of all Notes, all interest accrued
and unpaid thereon and all other amounts payable under the Loan Documents shall
be forthwith due and payable, all without protest, presentment, notice of
dishonor, demand or further notice of any kind, all of which are expressly
waived by Borrower.
(c) Upon the occurrence and during the continuance of any Event of
Default, the Administrative Agent, on behalf of the Banks, without notice to
(except as expressly provided for in any Loan Document) or demand upon Borrower,
which are expressly waived by Borrower (except as to notices expressly provided
for in any Loan Document), may proceed (but only with the consent of the
Requisite Banks) to protect, exercise and enforce their rights and remedies
under the
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Loan Documents against Borrower and any other Loan Party and such other rights
and remedies as are provided by Law or equity.
(d) The order and manner in which the Banks' rights and remedies are
to be exercised shall be determined by the Requisite Banks in their sole
discretion, and all payments received by the Administrative Agent and the Banks,
or any of them, shall be applied first to the costs and expenses (including
reasonable attorneys' fees and disbursements and the reasonably allocated costs
of attorneys employed by the Administrative Agent or by any Bank) of the
Administrative Agent and of the Banks, then to the repayment of Swing Loans, and
thereafter paid pro rata to the Banks in the same proportions that the aggregate
Obligations owed to each Bank under the Loan Documents bear to the aggregate
Obligations owed under the Loan Documents to all the Banks, without priority or
preference among the Banks. Regardless of how each Bank may treat payments for
the purpose of its own accounting, for the purpose of computing the Obligations
hereunder and under the Notes, payments shall be applied first, to the costs and
expenses of the Administrative Agent and the Banks, as set forth above, second,
to the payment of interest and principal (in that order) due on Swing Loans,
third, to the payment of accrued and unpaid interest due under any Loan
Documents to and including the date of such application (ratably, and without
duplication, according to the accrued and unpaid interest due under each of the
Loan Documents), and fourth, pari passu to the payment of all other amounts
(including principal and fees) then owing to the Administrative Agent or the
Banks under the Loan Documents and to the payment of any termination payments
due from Borrower in respect of Swap Agreements. No application of payments
under this clauses (d) will cure any Event of Default, or prevent acceleration,
or continued acceleration, of amounts payable under the Loan Documents, or
prevent the exercise, or continued exercise, of rights or remedies of the Banks
hereunder or thereunder or at Law or in equity.
(e) Upon the occurrence, and during the continuance, of any Event of
Default, or to the extent required pursuant to Section 3.1 above, Borrower shall
at such time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the Letter of Credit Exposure at such time. Borrower
hereby grants to the Administrative Agent, for the benefit of the Banks, a
security interest in such cash collateral to secure all obligations of Borrower
in respect of such Letters of Credit under this Agreement and the other Loan
Documents. Borrower shall execute and deliver to the Administrative Agent, for
the account of the Banks, such further documents and instruments as the
Administrative Agent may request to evidence the creation and perfection of such
security interest in such cash collateral account. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay other Obligations of Borrower hereunder and under
any Notes. After all such Letters of Credit shall have expired or been fully
drawn upon, all obligations under the Letters of Credit shall have been
satisfied and all other Obligations of Borrower hereunder and under any Notes
shall have been paid in full, the balance, if any, in such cash collateral
account shall be returned to Borrower. In addition, at any time that amounts are
being held in such cash collateral account and the Aggregate Line Commitment
exceeds the Outstanding Line Amount, the balance in such cash collateral
account, to the extent of any such excess of the Aggregate Line Commitment over
the Outstanding Line Amount, shall be returned to Borrower promptly after the
Administrative Agent's receipt of a written request from Borrower.
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ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. Subject to Section 10.8, each Bank
hereby irrevocably appoints and authorizes the Administrative Agent to take such
action as the contractual representative on its behalf and to exercise such
powers under the Loan Documents as are delegated to the Administrative Agent by
the terms thereof or are reasonably incidental, as determined by the
Administrative Agent, thereto. This appointment and authorization is intended
solely for the purpose of facilitating the servicing of the Loans and does not
constitute appointment of the Administrative Agent as trustee for any Bank or as
representative of any Bank for any other purpose and, the Administrative Agent
shall take such action and exercise such powers only in an administrative and
ministerial capacity.
10.2 Administrative Agent and Affiliates. KeyBank (and each successor
Administrative Agent in its individual capacity) has the same rights and powers
under the Loan Documents as any other Bank and may exercise the same as though
it were not the Administrative Agent, and the term "Bank" or "Banks" includes
KeyBank in its individual capacity. KeyBank (and each successor Administrative
Agent in its individual capacity) and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of banking, trust or other
business with Borrower or any other member of the Consolidated Group, as if it
were not the Administrative Agent and without any duty to account therefor to
the Banks. KeyBank (and each successor Administrative Agent in its individual
capacity) need not account to any other Bank for any monies received by it for
reimbursement of its costs and expenses as the Administrative Agent hereunder,
or for any monies received by it in its capacity as a Bank hereunder, other than
as required of any Bank hereunder. The Administrative Agent shall not be deemed
to hold a fiduciary or agency relationship with any Bank and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Administrative Agent.
The provisions of this Section 10.2 shall apply equally to any other agents
named herein.
10.3 Proportionate Interest in any Collateral. The Administrative Agent,
on behalf of all the Banks, shall hold in accordance with the Loan Documents all
items of collateral (if any) or interests therein received or held by the
Administrative Agent. Subject to the Administrative Agent's and the Banks'
rights to reimbursement for their costs and expenses hereunder (including
reasonable attorneys' fees and disbursements and other professional services and
the reasonably allocated costs of attorneys employed by the Administrative Agent
or, upon the occurrence and during the continuation of an Event of Default, a
Bank) and subject to the application of payments in accordance with Section
9.2(d), each Bank shall have an interest in the Administrative Agent's interest
in such collateral (if any) or interests therein in the same proportions that
the aggregate Obligations owed such Bank under the Loan Documents bear to the
aggregate Obligations owed under the Loan Documents to all the Banks, without
priority or preference among the Banks.
10.4 Banks' Credit Decisions. Each Bank agrees that it has, independently
and without reliance upon the Administrative Agent, any other Bank or the
directors, officers, agents, employees or attorneys of the Administrative Agent
or of any other Bank, and instead in reliance upon information supplied to it by
or on behalf of Borrower and upon such other information as it has deemed
appropriate, made its own independent credit analysis and decision to enter into
this
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Agreement. Each Bank also agrees that it shall, independently and without
reliance upon the Administrative Agent, any other Bank or the directors,
officers, agents, employees or attorneys of the Administrative Agent or of any
other Bank, continue to make its own independent credit analyses and decisions
in acting or not acting under the Loan Documents.
10.5 Action by Administrative Agent.
(a) Absent actual knowledge of the Administrative Agent of the
existence of a Default, the Administrative Agent may assume that no Default
(other than the failure to make a payment of principal or interest when due) has
occurred and is continuing, unless the Administrative Agent has received notice
from Borrower stating the nature of the Default or has received notice from a
Bank stating the nature of the Default and that such Bank considers the Default
to have occurred and to be continuing.
(b) The Administrative Agent has only those obligations under the
Loan Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the Loan
Documents and as long as the Administrative Agent may assume that no Default has
occurred and is continuing, the Administrative Agent may, but shall not be
required to, exercise its discretion to act or not act, except that the
Administrative Agent shall be required to comply with the instructions of the
Requisite Banks (or of all the Banks, to the extent required by Section 12.1)
and those instructions shall be binding upon the Administrative Agent and all
the Banks, provided that the Administrative Agent shall not be required to
comply with such instructions if to do so would be contrary to any Loan Document
or to applicable Law or would result, in the reasonable judgment of the
Administrative Agent, in substantial risk of liability to the Administrative
Agent.
(d) If the Administrative Agent has received a notice specified in
clause (a) or has actual knowledge of the existence of a Default, the
Administrative Agent shall promptly give notice thereof to the Banks and shall
comply with the instructions of the Requisite Banks (or of all the Banks, to the
extent required by Section 12.1), provided that the Administrative Agent shall
not be required to comply with such instructions if to do so would be contrary
to any Loan Document or to applicable Law or would result, in the reasonable
judgment of the Administrative Agent, in substantial risk of liability to the
Administrative Agent, and except that if the Requisite Banks (or all the Banks,
if required under Section 12.1) fail, for five (5) Banking Days after the
receipt of notice from the Administrative Agent, to instruct the Administrative
Agent, then the Administrative Agent, in its sole discretion, may act or not act
as it deems advisable for the protection of the interests of the Banks.
10.6 Liability of Administrative Agent. Neither the Administrative Agent
nor any of its directors, officers, agents, employees or attorneys shall be
liable for any action taken or not taken by them under or in connection with the
Loan Documents, except for their own gross negligence or willful misconduct.
Without limitation on the foregoing, the Administrative Agent and its directors,
officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder thereof until the
Administrative Agent receives notice of the assignment or transfer thereof, in
form satisfactory to the
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Administrative Agent, signed by the payee, and may treat each Bank as the owner
of that Bank's interest in the Obligations for all purposes of this Agreement
until the Administrative Agent receives notice of the assignment or transfer
thereof, in form satisfactory to the Administrative Agent, signed by that Bank;
(b) May consult with legal counsel (including in house legal
counsel), accountants (including in house accountants) and other professionals
or experts selected by it, or with legal counsel, accountants or other
professionals or experts for the Consolidated Group or the Banks, and shall not
be liable for any action taken or not taken by it in good faith in accordance
with any advice of such legal counsel, accountants or other professionals or
experts;
(c) Shall not be responsible to any Bank for any statement, warranty
or representation made in any of the Loan Documents or in any notice,
certificate, report, request or other statement (written or oral) given or made
in connection with any of the Loan Documents;
(d) Shall have no duty to ask or inquire as to the performance or
observance by Borrower or the Loan Parties of any of the terms, conditions
(except to ascertain that documents facially responsive to the requirements of
Article 8 have been delivered) or covenants of any of the Loan Documents or to
inspect any collateral or any Property, books or records of the Loan Parties;
(e) Will not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, effectiveness, sufficiency or
value of any Loan Document, any other instrument or writing furnished pursuant
thereto or in connection therewith, or any collateral;
(f) Will not incur any liability by acting or not acting in reliance
upon any Loan Document, notice, consent, certificate, statement, request or
other instrument or writing believed in good faith by it to be genuine and
signed or sent by the proper party or parties;
(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by Borrower or any other Loan Party thereof
or paid or payable to or received or receivable from any Bank under any Loan
Document, including, without limitation, principal, interest, commitment fees,
Advances and other amounts; provided that, promptly upon discovery of such an
error in computation, the Administrative Agent, the Banks and (to the extent
applicable) Borrower and/or the other Loan Parties shall make such adjustments
as are necessary to correct such error and to restore the parties to the
position that they would have occupied had the error not occurred; and
(h) Have not made nor do they now make any representations or
warranties, express or implied, nor do they assume any liability to the Banks,
with respect to the creditworthiness or financial condition of the Consolidated
Group, the value of their respective assets or the collectability of the Loans.
10.7 Indemnification. Each Bank shall, ratably in accordance with its
Percentage of the aggregate Commitments (if the Commitments are then in effect)
or in accordance with its proportion of the aggregate Indebtedness then
evidenced by the Notes and Letter of Credit Exposure (if the Commitments have
then been terminated), indemnify and hold the Administrative Agent and its
directors, officers, agents, employees and attorneys harmless against any and
all liabilities,
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obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever (including reasonable
attorneys' fees and disbursements and allocated costs of attorneys employed by
the Administrative Agent) that may be imposed on, incurred by or asserted
against it or them in any way relating to or arising out of the Loan Documents
(other than losses incurred by reason of the failure of Borrower to pay the
Indebtedness represented by the Notes) or any action taken or not taken by it as
the Administrative Agent thereunder, except such as result from its own gross
negligence or willful misconduct. Without limitation on the foregoing, each Bank
shall reimburse the Administrative Agent upon demand for that Bank's Percentage
of any out of pocket cost or expense incurred by the Administrative Agent in
connection with the negotiation, preparation, execution, delivery, amendment,
waiver, restructuring, reorganization (including a bankruptcy reorganization),
enforcement or attempted enforcement of the Loan Documents, to the extent that
any Borrower or any other Loan Party is required by Section 11.3 to pay that
cost or expense but fails to do so upon demand. Nothing in this Section 10.7
shall entitle the Administrative Agent or any indemnitee referred to above to
recover any amount from the Banks if and to the extent that such amount has
theretofore been recovered from Borrower or any other Loan Party. To the extent
that the Administrative Agent or any indemnitee referred to above is later
reimbursed such amount by Borrower or any other Loan Party, it shall return the
amounts paid to it by the Banks in respect of such amount.
10.8 Successor Administrative Agent. The Administrative Agent may resign
as Administrative Agent upon reasonable notice to the Banks and Borrower
effective not earlier than thirty (30) days after such notice, upon acceptance
of appointment by a successor Administrative Agent. The Requisite Banks may
(with the prior consent, not to be unreasonably withheld or delayed, of Parent,
unless an Event of Default shall have occurred and be continuing) remove the
Administrative Agent from its capacity as Administrative Agent in the event of
the Administrative Agent's willful misconduct or gross negligence. If the
Administrative Agent shall resign or be removed as Administrative Agent under
this Agreement, the Requisite Banks shall appoint from among the Banks a
successor Administrative Agent for the Banks, which successor Administrative
Agent shall require approval by Parent so long as no Default or Event of Default
has occurred and is continuing (and such approval shall not be unreasonably
withheld or delayed). If no successor Administrative Agent is appointed prior to
the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Banks and, so long
as no Default or Event of Default has occurred and is continuing, with the
consent of Parent, a successor Administrative Agent from among the Banks. Upon
the acceptance of its appointment as successor Administrative Agent hereunder,
such successor Administrative Agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor Administrative Agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Article 10, and
Sections 11.3, 11.11 and 11.22, shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement. Notwithstanding the foregoing, if (a) the Administrative Agent has
not been paid its administrative agency fees under the Fee Letter or has not
been reimbursed for any expense reimbursable to it under Section 11.3, in either
case for a period of at least one (1) year and (b) no successor Administrative
Agent has accepted appointment as Administrative Agent by the date which is
thirty (30) days following a retiring Administrative Agent's notice of
resignation, the retiring
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Administrative Agent's resignation shall nevertheless thereupon become effective
and the Banks shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Requisite Banks appoint a successor
Administrative Agent as provided for above.
10.9 No Obligations of Borrower. Nothing contained in this Article 10
shall be deemed to impose upon Borrower any obligation in respect of the due and
punctual performance by the Administrative Agent of its obligations to the Banks
under any provision of this Agreement, and Borrower shall have no liability to
the Administrative Agent or any of the Banks in respect of any failure by the
Administrative Agent or any Bank to perform any of its obligations to the
Administrative Agent or the Banks under this Agreement. Without limiting the
generality of the foregoing, where any provision of this Agreement relating to
the payment of any amounts due and owing under the Loan Documents provides that
such payments shall be made by Borrower to the Administrative Agent for the
account of the Banks, Borrower's obligations to the Banks in respect of such
payments shall be deemed to be satisfied upon the making of such payments to the
Administrative Agent in the manner provided by this Agreement.
10.10 Agents. Neither the Lead Arranger nor the Syndication Agent as shown
on the cover of this Agreement have any additional rights or obligations under
the Loan Documents, except for those rights or obligations, if any, as a Bank.
ARTICLE 11
MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver. The rights, powers, privileges and
remedies of the Administrative Agent and the Banks provided herein or in any
Note or other Loan Document are cumulative and not exclusive of any right,
power, privilege or remedy provided by Law or equity. No failure or delay on the
part of the Administrative Agent or any Bank in exercising any right, power,
privilege or remedy may be, or may be deemed to be, a waiver thereof; nor may
any single or partial exercise of any right, power, privilege or remedy preclude
any other or further exercise of the same or any other right, power, privilege
or remedy. The terms and conditions of Article 8 hereof are inserted for the
sole benefit of the Administrative Agent and the Banks; the same may be waived
in whole or in part, with or without terms or conditions, in respect of any Loan
without prejudicing the Administrative Agent's or the Banks' rights to assert
them in whole or in part in respect of any other Loan.
11.2 [Intentionally Omitted.]
11.3 Costs, Expenses and Taxes. Borrower shall pay within five (5) Banking
Days after demand, accompanied by an invoice therefor, the reasonable costs and
expenses of the Administrative Agent in connection with the negotiation,
preparation, syndication, execution, delivery, administration and interpretation
of the Loan Documents and any amendment thereto or waiver thereof. Following and
during the continuation of an Event of Default, Borrower shall also pay on
demand, accompanied by an invoice therefor, the reasonable costs and expenses of
the Administrative Agent and the Banks in connection with the refinancing,
restructuring, reorganization (including a bankruptcy reorganization) and
enforcement or attempted enforcement of the Loan Documents, and any matter
related thereto. The foregoing costs and expenses shall
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include filing fees, recording fees, title insurance fees, appraisal fees,
search fees, and other out of pocket expenses and the reasonable fees and out of
pocket expenses of any legal counsel (including reasonably allocated costs of
legal counsel employed by the Administrative Agent or any Bank), independent
public accountants and other outside experts retained by the Administrative
Agent or any Bank, whether or not such costs and expenses are incurred or
suffered by the Administrative Agent or any Bank in connection with or during
the course of any bankruptcy or insolvency proceedings of any member of the
Consolidated Group. Borrower shall pay any and all documentary and other taxes,
excluding (i) taxes imposed on or measured in whole or in part by any Bank's
overall net income imposed on such Bank (including taxes on gross income imposed
in lieu of net income, minimum taxes or branch profits taxes) by (A) any
jurisdiction (or political subdivision thereof) in which such Bank is organized
or maintains its principal office or LIBOR Lending Office or (B) any
jurisdiction (or political subdivision thereof) in which such Bank is "doing
business" or (ii) any withholding taxes or other taxes based on gross income
imposed by the United States of America for any period with respect to which any
Bank has failed, for any reason, to provide Borrower with the appropriate form
or forms required by Section 11.21, to the extent such forms are then required
by applicable Laws to establish a complete exemption, and all costs, expenses,
fees and charges payable or determined to be payable in connection with the
filing or recording of this Agreement, any other Loan Document or any other
instrument or writing to be delivered hereunder or thereunder, or in connection
with any transaction pursuant hereto or thereto, and shall reimburse, hold
harmless and indemnify on the terms set forth in Section 11.11 the
Administrative Agent and the Banks from and against any and all loss, liability
or legal or other expense with respect to or resulting from any delay in paying
or failure to pay any such tax, cost, expense, fee or charge or that any of them
may suffer or incur by reason of the failure of any Party to perform any of its
Obligations. Any amount payable to the Administrative Agent or any Bank under
this Section 11.3 shall bear interest from the fifth Banking Day following the
date of demand for payment at the Default Rate.
11.4 Nature of Banks' Obligations. The obligations of the Banks hereunder
are several and not joint or joint and several. Nothing contained in this
Agreement or any other Loan Document and no action taken by the Administrative
Agent or the Banks or any of them pursuant hereto or thereto may, or may be
deemed to, make the Banks a partnership, an association, a joint venture or
other entity, either among themselves or with Borrower or any other member of
the Consolidated Group. A default by any Bank will not increase the Percentage
of the Commitments attributable to any other Bank. Any Bank not in default may,
if it desires, assume in such proportion as the nondefaulting Banks agree the
obligations of any Bank in default, but is not obligated to do so. The
Administrative Agent agrees that it will use reasonable efforts (which will not
include the payment of money) either to induce the other Banks to assume the
obligations of a Bank in default or to obtain another Bank, reasonably
satisfactory to Borrower, to replace such a Bank in default. A defaulting Bank's
right to participate in the administration of the Loan Documents, including,
without limitation, any rights to consent to or direct any action or inaction of
the Administrative Agent or to vote on any matter presented to the Banks shall
be suspended during the pendency of such Bank's default.
11.5 Survival of Representations and Warranties. All representations and
warranties contained herein or in any other Loan Document, or in any certificate
or other writing delivered by or on behalf of any one or more of the Parties to
any Loan Document, will survive the making of the Loans hereunder and the
execution and delivery of the Notes, and have been or will be relied upon
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by the Administrative Agent and each Bank, notwithstanding any investigation
made by the Administrative Agent or any Bank or on their behalf.
11.6 Notices. Except as otherwise expressly provided in the Loan
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must be mailed, telegraphed, telecopied, dispatched by commercial courier or
delivered to the appropriate party at the address set forth on the signature
pages of this Agreement or other applicable Loan Document or, as to any party to
any Loan Document, at any other address as may be designated by it in a written
notice sent to all other parties to such Loan Document in accordance with this
Section. Except as otherwise expressly provided in any Loan Document, if any
notice, request, demand, direction or other communication required or permitted
by any Loan Document is given by mail it will be effective on the earlier of
receipt or the fourth Banking Day after deposit in the United States mail with
first class or airmail postage prepaid; if given by telegraph or cable, when
delivered to the telegraph company with charges prepaid; if given by telecopier,
when sent; if dispatched by commercial courier, on the scheduled delivery date;
or if given by personal delivery, when delivered (provided that if any such
communication is received after normal business hours or on a day that is not a
Banking Day, it shall be deemed to have been received on the next Banking Day
following receipt). The Administrative Agent and the Banks shall be entitled to
rely and act upon any notices purportedly given by or on behalf of Borrower and
Banks shall be entitled to rely and act upon any notices purportedly given to
them by or on behalf of the Administrative Agent, even if (i) such notices were
not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof.
Borrower shall indemnify the Administrative Agent and each Bank from all losses,
costs, expenses and liabilities resulting from the reliance of such Person on
each notice purportedly given by Borrower, except to the extent of such Person's
gross negligence.
11.7 Execution of Loan Documents. Unless the Administrative Agent
otherwise specifies with respect to any Loan Document, (a) this Agreement and
any other Loan Document may be executed in any number of counterparts and any
party hereto or thereto may execute any counterpart, each of which when executed
and delivered will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, when taken
together will be deemed to be but one and the same instrument and (b) execution
of any such counterpart may be evidenced by a telecopier transmission of the
signature of such party. The execution of this Agreement or any other Loan
Document by any party hereto or thereto will not become effective until
counterparts hereof or thereof, as the case may be, have been executed by all
the parties hereto or thereto.
11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which the Loan
Parties are a party will be binding upon and inure to the benefit of the Loan
Parties, the Administrative Agent, each of the Banks, and their respective
successors and assigns, except that the Loan Parties may not assign their rights
hereunder or thereunder or any interest herein or therein without the prior
written consent of all the Banks, and any purported assignment without such
consent shall be null and void. Each Bank represents that it is not acquiring
its Note with a view to the distribution thereof within the meaning of the
Securities Act of 1933, as amended (subject to any requirement that disposition
of
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such Note must be within the control of such Bank). Any Bank may at any time
pledge its Notes or any other instrument evidencing its rights as a Bank under
this Agreement to a Federal Reserve Bank, but no such pledge shall release that
Bank from its obligations hereunder or grant to such Federal Reserve Bank the
rights of a Bank hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Bank may
assign to one or more Eligible Assignees all or any portion of its Line
Commitment; and/or its Term Commitment, provided that (i) such Eligible
Assignee, if not then a Bank or an Affiliate of the assigning Bank, shall
require approval by the Administrative Agent and (if no Event of Default then
exists) Parent (neither of which approvals shall be unreasonably withheld or
delayed), (ii) such assignment shall be evidenced by a Commitments Assignment
and Acceptance, a copy of which, together with any Notes subject to such
assignment, shall be furnished to the Administrative Agent as hereinbelow
provided, (iii) except in the case of an assignment to an Affiliate of the
assigning Bank, to another Bank or of the entire remaining Commitments of the
assigning Bank, the assignment shall not assign a share of the Commitments that
is equivalent to less than $10,000,000, (iv) the assignment shall be of a
constant, and not a varying, percentage of the Assignor's rights and obligations
under this Agreement, and (v) the effective date of any such assignment shall be
as specified in the Commitments Assignment and Acceptance, but not earlier than
the date which is five (5) Banking Days after the date the Administrative Agent
has received the Commitments Assignment and Acceptance unless otherwise agreed
by the Administrative Agent. Upon the effective date of such Commitments
Assignment and Acceptance, the Eligible Assignee named therein shall be a Bank
for all purposes of this Agreement, with a Percentage and Line Commitment and
Term Commitment as therein (and herein, if such Eligible Assignee was already a
Bank) set forth and, to the extent of the portion of the Commitments assigned,
the assigning Bank shall be released from its further obligations under this
Agreement. Borrower agrees that it shall execute and deliver to such assignee
Bank, Notes evidencing that assignee Bank's Line Commitment and/or Term
Commitment, and to the assigning Bank, Notes evidencing the remaining balance of
such Bank's Line Commitment and/or Term Commitment.
(c) By executing and delivering a Commitments Assignment and
Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i)
the Administrative Agent has not made any representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness or sufficiency of this Agreement or any
other Loan Document; (ii) the Administrative Agent has not made any
representation or warranty and assumes no responsibility with respect to the
financial condition of the Loan Parties or the performance by the Loan Parties
of the Obligations; (iii) it has received a copy of this Agreement, together
with copies of the most recent financial statements delivered pursuant to
Section 7.1 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Commitments Assignment and Acceptance; (iv) it will, independently and without
reliance upon the Administrative Agent or any Bank and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement; (v) it
appoints and authorizes the Administrative Agent to take such action and to
exercise such powers under this Agreement as are delegated to the Administrative
Agent by this Agreement; and (vi) it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement are required to be
performed by it as a Bank.
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(d) The Administrative Agent shall maintain at the Administrative
Agent's Office a copy of each Commitments Assignment and Acceptance delivered to
it and a register (the "Register") of the names and address of each of the Banks
and the Percentage and Line Commitment and Tem Commitment amounts held by each
Bank, giving effect to each Commitments Assignment and Acceptance. The Register
shall be available during normal business hours for inspection by Borrower or
any Bank upon reasonable prior notice to the Administrative Agent. After receipt
of a completed Commitments Assignment and Acceptance executed by any Bank and an
Eligible Assignee and the Notes subject to such assignment, and receipt of an
assignment fee of $3,500 from such Bank or Eligible Assignee, the Administrative
Agent shall, promptly following the effective date thereof, upon the request of
any party, provide to Borrower and the Banks a revised Schedule 1.1 giving
effect thereto. Borrower, the Administrative Agent and the Banks shall deem and
treat the Persons listed as Banks in the Register as the holders and owners of
the Commitments listed therein for all purposes hereof, and no assignment or
transfer of any such Commitment shall be effective, in each case unless and
until a Commitments Assignment and Acceptance effecting the assignment or
transfer thereof shall have been accepted by the Administrative Agent and
recorded in the Register as provided above. Prior to such recordation, all
amounts owed with respect to the applicable Commitments shall be owed to the
Bank listed in the Register as the owner thereof, and any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Bank shall be conclusive
and binding on any subsequent holder, assignee or transferee of such
Commitments.
(e) Each Bank may from time to time grant participations to one or
more banks or other financial institutions (including another Bank but excluding
an Employee Plan) in a portion of its Commitments; provided, however, that (i)
such Bank's obligations under this Agreement shall remain unchanged, (ii) such
Bank shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other
financial institutions shall not be a Bank hereunder for any purpose except, if
the participation agreement so provides, for the purposes of Sections 3.7, 3.8,
11.11 and 11.22 but only to the extent that the cost of such benefits to
Borrower does not exceed the cost which Borrower would have incurred absent the
participation, (iv) Borrower, the Administrative Agent and the other Banks shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement, (v) the participation
interest shall be expressed as a percentage of the granting Bank's Line
Commitment or Term Commitment as they then exist and shall not afford such
participant any rights or privileges under the Loan Documents except as provided
in clause (iii) above.
11.9 Right of Setoff. If an Event of Default has occurred and is
continuing, the Administrative Agent or any Bank (but in each case only with the
consent of the Requisite Banks and subject to the provisions of Section 11.10)
may exercise its rights, if any, under Article 9 of the Uniform Commercial Code
and other applicable Laws and, to the extent permitted by applicable Laws, apply
any funds in any deposit account maintained with it by Borrower and/or any
Property of Borrower in its possession against the Obligations. ANY AND ALL
RIGHTS TO REQUIRE ADMINISTRATIVE AGENT OR ANY BANK TO EXERCISE ITS RIGHTS OR
REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN (IF ANY),
PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS,
OR OTHER PROPERTY OF BORROWERS, ARE HEREBY, KNOWINGLY, VOLUNTARILY, AND
IRREVOCABLY WAIVED.
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11.10 Sharing of Setoffs. Each Bank severally agrees that if it, through
the exercise of any right of setoff, banker's lien or counterclaim against
Borrower, or otherwise, receives payment of the Obligations held by it that is
ratably more than any other Bank, or through any means, receives in payment of
the Obligations held by that Bank, then, subject to applicable Laws: (a) the
Bank exercising the right of setoff, banker's lien or counterclaim or otherwise
receiving such payment shall purchase, and shall be deemed to have
simultaneously purchased, from each of the other Banks a participation in the
Obligations held by the other Banks and shall pay to the other Banks a purchase
price in an amount so that the share of the Obligations held by each Bank after
the exercise of the right of setoff, banker's lien or counterclaim or receipt of
payment shall be in the same proportion that existed prior to the exercise of
the right of setoff, banker's lien or counterclaim or receipt of payment; and
(b) such other adjustments and purchases of participations shall be made from
time to time as shall be equitable to ensure that all of the Banks share any
payment obtained in respect of the Obligations ratably in accordance with each
Bank's share of the Obligations immediately prior to, and without taking into
account, the payment; provided that, if all or any portion of a disproportionate
payment obtained as a result of the exercise of the right of setoff, banker's
lien, counterclaim or otherwise is thereafter recovered from the purchasing Bank
by Borrower or any Person claiming through or succeeding to the rights of
Borrower, the purchase of a participation shall be rescinded and the purchase
price thereof shall be restored to the extent of the recovery, but without
interest (unless the Bank from which such payment is recovered is required to
pay interest thereon, in which case each Bank returning funds to such Bank shall
pay its pro rata share of such interest). Each Bank that purchases a
participation in the Obligations pursuant to this Section 11.10 shall from and
after the purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing
Bank were the original owner of the Obligations purchased. Borrower expressly
consents to the foregoing arrangements and agrees that any Bank holding a
participation in an Obligation so purchased pursuant to this Section 11.10 may
exercise any and all rights of setoff, banker's lien or counterclaim with
respect to the participation as fully as if the Bank were the original owner of
the Obligation purchased.
11.11 Indemnity by Borrower. Borrower agrees to indemnify, save and hold
harmless the Administrative Agent and Lead Arranger and each Bank and their
respective directors, officers, agents, attorneys and employees (collectively
the "Indemnitees") from and against: (a) any and all claims, demands, actions or
causes of action (except a claim, demand, action, or cause of action for any
amount excluded from the definition of "Taxes" in Section 3.9(d)) if the claim,
demand, action or cause of action arises out of or relates to any act or
omission (or alleged act or omission) of Borrower, the other members of the
Consolidated Group or any of their officers, directors or stockholders relating
to the Commitments, the use or contemplated use of proceeds of any Loan or any
Letter of Credit, or the relationship of Borrower and the Banks under this
Agreement; (b) any administrative or investigative proceeding by any
Governmental Agency arising out of or related to a claim, demand, action or
cause of action described in clause (a) above; and (c) any and all liabilities,
losses, costs or expenses (including reasonable attorneys' fees and the
reasonably allocated costs of attorneys employed by any Indemnitee and
disbursements of such attorneys and other professional services) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action or cause of action; provided that no Indemnitee shall be
entitled to indemnification for any loss caused by its own gross negligence or
willful misconduct or for any loss asserted against it by another Indemnitee. If
any claim, demand, action or cause of action is
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asserted against any Indemnitee, such Indemnitee shall promptly notify Borrower,
but the failure to so promptly notify Borrower shall not affect Borrower's
obligations under this Section unless such failure materially prejudices
Borrower's right to participate in the contest of such claim, demand, action or
cause of action, as hereinafter provided. Such Indemnitee may (and shall, if
requested by Borrower in writing) contest the validity, applicability and amount
of such claim, demand, action or cause of action and shall permit Borrower to
participate in such contest. Any Indemnitee that proposes to settle or
compromise any claim or proceeding for which Borrower may be liable for payment
of indemnity hereunder shall give Borrower written notice of the terms of such
proposed settlement or compromise reasonably in advance of settling or
compromising such claim or proceeding and shall obtain Borrower's prior written
consent (which shall not be unreasonably withheld or delayed). In connection
with any claim, demand, action or cause of action covered by this Section 11.11
against more than one Indemnitee, all such Indemnitees shall be represented by
the same legal counsel (which may be a law firm engaged by the Indemnitees or
attorneys employed by an Indemnitee or a combination of the foregoing) selected
by the Indemnitees and reasonably acceptable to Borrower; provided, that if such
legal counsel determines in good faith that representing all such Indemnitees
would or could result in a conflict of interest under Laws or ethical principles
applicable to such legal counsel or that a defense or counterclaim is available
to an Indemnitee that is not available to all such Indemnitees, then to the
extent reasonably necessary to avoid such a conflict of interest or to permit
unqualified assertion of such a defense or counterclaim, each affected
Indemnitee shall be entitled to separate representation by legal counsel
selected by that Indemnitee and reasonably acceptable to Borrower, with all such
legal counsel using reasonable efforts to avoid unnecessary duplication of
effort by counsel for all Indemnitees; and further provided that the
Administrative Agent (as an Indemnitee) shall at all times be entitled to
representation by separate legal counsel (which may be a law firm or attorneys
employed by the Administrative Agent or a combination of the foregoing). Any
obligation or liability of Borrower to any Indemnitee under this Section 11.11
shall survive the expiration or termination of this Agreement and all Letters of
Credit and the repayment of all Loans and the payment and performance of all
other Obligations owed to the Banks.
11.12 Nonliability of the Banks. Borrower acknowledges and agrees that:
(a) Any inspections of any Property of Borrower or any other Loan
Party made by or through the Administrative Agent or the Banks are for purposes
of administration of the Loan only and Borrower and such other Loan Parties are
not entitled to rely upon the same (whether or not such inspections are at the
expense of Borrower);
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to the Administrative Agent or the Banks pursuant
to the Loan Documents, neither the Administrative Agent nor the Banks shall be
deemed to have warranted or represented the sufficiency, legality, effectiveness
or legal effect of the same, or of any term, provision or condition thereof, and
such acceptance or approval thereof shall not constitute a warranty or
representation to anyone with respect thereto by the Administrative Agent or the
Banks;
(c) The relationship between Borrower and the Administrative Agent
and the Banks is, and shall at all times remain, solely that of borrowers and
lenders; neither the Administrative Agent nor the Banks shall under any
circumstance be construed to be partners or joint venturers of Borrower or any
other member of the Consolidated Group, neither the
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Administrative Agent nor the Banks shall under any circumstance be deemed to be
in a relationship of confidence or trust or a fiduciary relationship with
Borrower or any other member of the Consolidated Group, or to owe any fiduciary
duty to Borrower or any other member of the Consolidated Group; neither the
Administrative Agent nor the Banks undertake or assume any responsibility or
duty to Borrower or any other member of the Consolidated Group, to select,
review, inspect, supervise, pass judgment upon or inform Borrower or any other
member of the Consolidated Group, of any matter in connection with their
Property or the operations of Borrower or any other member of the Consolidated
Group; Borrower and such other members shall rely entirely upon their own
judgment with respect to such matters; and any review, inspection, supervision,
exercise of judgment or supply of information undertaken or assumed by the
Administrative Agent or the Banks in connection with such matters is solely for
the protection of the Administrative Agent and the Banks and neither Borrower
nor any other Person is entitled to rely thereon; and
(d) The Administrative Agent and the Banks shall not be responsible
or liable to any Person for any loss, damage, liability or claim of any kind
relating to injury or death to Persons or damage to Property caused by the
actions, inaction or negligence of Borrower and/or any other member of the
Consolidated Group, and Borrower hereby indemnifies and holds the Administrative
Agent and the Banks harmless on the terms set forth in Section 11.11 from any
such loss, damage, liability or claim.
11.13 No Third Parties Benefited. This Agreement is made for the purpose
of defining and setting forth certain obligations, rights and duties of
Borrower, the Administrative Agent and the Banks in connection with the Loans
and Letters of Credit, and is made for the sole benefit of Borrower, the
Administrative Agent and the Banks, and the Administrative Agent's and the
Banks' successors and assigns. Except as provided in Sections 11.8, 11.11 and
11.22 no other Person shall have any rights of any nature hereunder or by reason
hereof.
11.14 Confidentiality.
(a) Confidentiality. Each Bank and the Administrative Agent (each,
a "Lender Party") hereby agrees for itself only that, except as specifically set
forth herein, such Lender Party (i) shall not participate in or generate any
press release or other release of information to the general public relating to
the closing of the Loan without the prior written consent of Borrower, (ii)
shall hold the Confidential Information in strict confidence in accordance with
such Lender Party's customary procedures to prevent the misuse or disclosure of
confidential information of this nature and in accordance with safe and sound
banking practices, (iii) shall use the Confidential Information solely for the
purposes of underwriting the Loan or acquiring an interest therein, carrying out
such Lender Party's rights or obligations under this Agreement, in connection
with the syndication of the Loan, the enforcement of the Loan Documents, or
other internal examination, supervision or oversight of the transactions
contemplated hereby as reasonably determined by such Lender Party, or as
otherwise permitted by the terms of this Section 11.14 (collectively, "Permitted
Purposes"), and (iv) shall not disclose the Confidential Information to any
third party, except as expressly authorized in this Agreement or with prior
written consent of Borrower. Each Lender Party shall promptly notify Borrower in
the event that it becomes aware of any loss or unauthorized disclosure of any
Confidential Information.
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Each Lender Party shall not have any obligations under this Agreement with
respect to a specific portion of the Confidential Information if such Lender
Party can demonstrate that such Confidential Information (i) was publicly
available at the time it was disclosed to such Lender Party, (ii) became
publicly available subsequent to the time it was disclosed to such Lender Party
(except to the extent such public availability was the result of such Lender
Party's disclosure), (iii) was in or comes into a Lender Party's possession from
a source not known to such Lender Party (after reasonable inquiry) to be in
breach of an obligation of confidentiality owed to Borrower in making such
disclosure to such Lender Party, (iv) was in or comes into Lender Party's
possession free of any obligation of confidence owed to Borrower at the time it
was disclosed to such Lender Party, or (v) was developed by the employees or
agents of the Lender Party without the use of the Confidential Information.
(b) Disclosures. Any Lender Party or its legal counsel may
disclose the Confidential Information (i) to Borrower, other Banks, the
Administrative Agent or any of their respective legal counsel, (ii) to its
auditors in connection with bank audits or regulatory officials having
jurisdiction over such Lender Party, (iii) to its legal counsel who need to know
the Confidential Information for the purposes of representing or advising the
Lender Parties, (iv) to its consultants, agents and advisors retained in good
faith by such Lender Party with a need to know such information in connection
with a Permitted Purpose or to otherwise advise or consult with such Lender
Party, (v) as required by Law or legal process (subject to the terms below), or
in connection with any legal proceeding to which that Lender Party and any Loan
Party are adverse parties (and Borrower hereby acknowledges and agrees that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001) (the "Act"), each Bank is required to obtain,
verify and record information that identifies the Loan Parties, which
information includes the name and address of the Loan Parties and other
information that will allow such Bank to identify the Loan Parties in accordance
with the Act), (vi) to another potential Bank or participant in connection with
an assignment or proposed assignment to that Person of all or part of that
Lender Party's interests hereunder or a participation interest in its Notes, and
(vii) to its directors, officers, employees and Affiliates who need to know the
Confidential Information for purposes of underwriting the Loan or becoming a
party to this Agreement, the syndication of the Loan, the administration,
interpretation, performance or exercise of rights under the Loan Documents, the
enforcement of the Loan Documents, or other internal supervision, examination or
oversight of the transactions contemplated hereby as reasonably determined by
such Lender Party, provided that any Person to whom any of the Confidential
Information is disclosed is informed by such Lender Party of the strictly
confidential nature of the Confidential Information, and such Persons described
in clauses (b)(iv) and (vi) shall agree in writing to be bound by
confidentiality restrictions at least as restrictive as those contained herein.
Notwithstanding the foregoing, a Lender Party may disclose Confidential
Information to the extent such Lender Party is requested or required by any Law
or any order of any Governmental Agency or self regulatory body or other legal
process to make any disclosure of or about any of the Confidential Information.
In such event (except with respect to banking regulators or auditors), such
Lender Party shall, if permitted by Law, promptly notify Borrower in writing so
that Borrower may seek an appropriate protective order or waive compliance with
the provisions of this Agreement (provided that if a protective order or the
receipt of a waiver hereunder has not been obtained, or if prior notice is not
possible, and a Lender Party is, in the opinion of its counsel, compelled to
disclose Confidential Information, such Lender Party may disclose that portion
of the Confidential Information which its counsel advises it that such Lender
- 78 -
Party is compelled to disclose, and provided further that in any event, such
Lender Party will not oppose action by Borrower to obtain an appropriate
protective order or other reliable assurance that confidential treatment will be
accorded the Confidential Information.) Each Lender Party shall be liable (but
only to the extent it is finally determined to have breached the provisions of
this Section 11.14(b)) for any actions by such Lender Party (but not any other
Person) which are not in accordance with the provisions of this Section
11.14(b).
Notwithstanding anything herein to the contrary, Confidential Information shall
not include, and Administrative Agent and each Bank may disclose to any and all
Persons, without limitation of any kind, any information with respect to the
"tax treatment" and "tax structure" (in each case, within the meaning of
Treasury Regulation Section 1.6011 4) of the transactions contemplated hereby
and all materials of any kind (including opinions or other tax analyses) that
are provided to the Administrative Agent or any Bank relating to such tax
treatment and tax structure; provided that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or similar item that
relate to the tax treatment or tax structure of the Loans, the Letters of Credit
and transactions contemplated hereby.
(c) No Rights in Confidential Information. The Administrative Agent
and each Bank recognizes and agrees that nothing contained in this Section 11.14
shall be construed as granting any property rights, by license or otherwise, to
any Confidential Information (other than the Agreement or any amendments thereto
or any related agreements), or to any invention or any patent, copyright,
trademark, or other intellectual property right that has issued or that may
issue, based on such Confidential Information (other than the Agreement or any
amendments thereto or any related agreements). No Lender Party shall make, have
made, use or sell for any purpose any product or other item using, incorporating
or derived from any such Confidential Information; provided that the foregoing
shall not limit or restrict in any way the creation, use or sale of banking or
related services by any Lender Party.
(d) Survival. All Confidential Information provided by or on behalf
of Borrower during the term of this Agreement or any predecessor agreements
shall remain confidential indefinitely and shall continue to receive that level
of confidential treatment customarily provided by commercial banks dealing with
confidential information of their borrower customers, subject, however, to the
specific exceptions to confidential treatment provided herein. For a period of
one year after the Termination Date, the affected Lender Party shall continue to
make reasonable inquiry of any third party providing Confidential Information as
to whether such third party is subject to an obligation of confidentiality owed
to Borrower or its Subsidiaries and if such Lender Party obtains knowledge that
such third party is violating a confidentiality agreement with Borrower, such
Lender Party shall treat the Confidential Information received from such third
party as strictly confidential in accordance with the provisions of this Section
11.14. For purposes of this Section 11.14(d), the "Termination Date" shall mean
the earlier of the termination of this Agreement or, with respect to a specific
Lender Party, the date such Person no longer holds an interest in the Loan.
(e) Injunctive Relief. Each Lender Party hereby agrees that breach
of this Section 11.14 will cause Borrower irreparable damage for which recovery
of damages would be inadequate, and that Borrower shall therefore be entitled to
obtain timely injunctive relief under this Agreement, as well as such further
relief as may be granted by a court of competent jurisdiction.
- 79 -
(f) No Fiduciary Duty. Nothing in this Section shall be construed to
create or give rise to any fiduciary duty on the part of the Administrative
Agent or the Banks to Borrower.
(g) Separate Action. Borrower covenants and agrees not to, and
hereby expressly waives any right to, raise as a defense, affirmative defense,
set off, recoupment or otherwise against any Lender Party any claim arising from
or relating to an alleged breach of this Section 11.14 in any action, claim or
proceeding relating to a breach of the Loan Documents by Borrower or other
action to enforce or recover the Obligations, and covenant and agree that any
claim against a Lender Party arising from or relating to an alleged breach of
this Section 11.14 by a Lender Party shall only be asserted as an affirmative
claim in a separate action against the applicable Lender Party.
11.15 Further Assurances. Borrower shall, at its expense and without
expense to the Banks or the Administrative Agent, do, execute and deliver such
further acts and documents as the Requisite Banks or the Administrative Agent
from time to time reasonably require for the assuring and confirming unto the
Banks or the Administrative Agent of the rights hereby created or intended now
or hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.
11.16 Integration. This Agreement, together with the other Loan Documents,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and supersedes all prior agreements, written or oral, on the
subject matter hereof. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control and govern; provided that the inclusion of supplemental
rights or remedies in favor of the Administrative Agent or the Banks in any
other Loan Document shall not be deemed a conflict with this Agreement. Each
Loan Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
11.17 Governing Law. Except to the extent otherwise provided therein, each
Loan Document shall be governed by, and construed and enforced in accordance
with, the Laws of the State of New York without any regard to conflicts of law
principles that would result in the application of any Law other than the Laws
of the State of New York.
11.18 Severability of Provisions. Any provision in any Loan Document that
is held to be inoperative, unenforceable or invalid as to any party or in any
jurisdiction shall, as to that party or jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
11.19 Headings. Article and Section headings in this Agreement and the
other Loan Documents are included for convenience of reference only and are not
part of this Agreement or the other Loan Documents for any other purpose.
11.20 Time of the Essence. Time is of the essence of the Loan Documents.
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11.21 Delivery of Tax Forms. Each Bank that is incorporated or otherwise
organized under the Laws of a jurisdiction other than the United States of
America or any State thereof or the District of Columbia shall deliver to
Borrower (with a copy to the Administrative Agent), on or before the Closing
Date (or on or before accepting an assignment or receiving a participation
interest herein pursuant to Section 11.8, if applicable) two duly completed
copies, signed by a Responsible Official, of either Form W 8BEN (relating to
such Bank and entitling it to a complete exemption from withholding on all
payments to be made to such Bank by Borrower pursuant to this Agreement) or Form
W 8ECI (relating to all payments to be made to such Bank by Borrower pursuant to
this Agreement), or W-8IMY, as applicable, of the United States of America
Internal Revenue Service or such other evidence satisfactory to Borrower and the
Administrative Agent that no withholding under the federal income tax laws is
required with respect to such Bank. If a Bank is claiming a "portfolio interest
exemption," such Bank shall, in addition to Form W 8BEN, provide a certificate
signed by a Responsible Official to the effect that (i) such Bank is not a bank
within the meaning of Section 881(c)(3)(A) of the Code, (ii) such Bank is not a
10% shareholder of Borrower, and (iii) such Bank is not related to Borrower
within the meaning of Section 881(c)(3)(C) of the Code. Thereafter and from time
to time, including before the expiration of any previously delivered form, each
such Bank shall (a) promptly submit to Borrower (with a copy to the
Administrative Agent), such additional duly completed and signed copies of one
of such forms (or such successor forms as shall be adopted from time to time by
the relevant United States of America taxing authorities) as may then be
required under then current United States of America Laws and regulations to
avoid, or such evidence as is satisfactory to Borrower and the Administrative
Agent of any available exemption from, United States of America withholding
taxes in respect of all payments to be made to such Bank by Borrower pursuant to
this Agreement and (b) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Bank, and as may be
reasonably necessary (including the re designation of its LIBOR Lending Office,
if any) to avoid any applicable deduction or withholding for taxes from amounts
payable to such Bank. In the event that Borrower or the Administrative Agent
become aware that a participation has been granted pursuant to Section 11.8(e)
to a financial institution that is incorporated or otherwise organized under the
Laws of a jurisdiction other than the United States of America, any State
thereof or the District of Columbia, then, upon request made by Borrower or the
Administrative Agent to the Bank which granted such participation, such Bank
shall cause such participant financial institution to deliver the same documents
and information to Borrower and the Administrative Agent as would be required
under this Section if such financial institution were a Bank. Each Bank that is
a United States of America Person shall, upon the reasonable request of
Borrower, deliver Form W-9 on or before the Closing Date (or on or before
accepting an assignment or receiving a participation pursuant to Section 11.8,
if applicable) and before the expiration of a previously delivered form.
11.22 Hazardous Material Indemnity. Borrower hereby agrees to indemnify,
hold harmless and defend (by counsel reasonably satisfactory to the
Administrative Agent) the Administrative Agent and each of the Banks and their
respective directors, officers, employees, agents, successors and assigns from
and against any and all claims, losses, damages, liabilities, fines, penalties,
charges, administrative and judicial proceedings and orders, judgments, remedial
action requirements, enforcement actions of any kind, and all costs and expenses
incurred in connection therewith (including but not limited to reasonable
attorneys' fees and the reasonably allocated costs of attorneys employed by the
Administrative Agent or any Bank, and expenses to the extent that the
- 81 -
defense of any such action has not been assumed by Borrower), arising directly
or indirectly out of (i) the presence on, in, under or about any Projects of any
Hazardous Materials, or any releases or discharges of any Hazardous Materials
on, under or from any Projects and (ii) any activity carried on or undertaken on
or off any Projects by Borrower or any Loan Party or any of their predecessors
in title, whether prior to or during the term of this Agreement, and whether by
Borrower or any predecessor in title or any employees, agents, contractors or
subcontractors thereof, or any third Persons at any time occupying or present on
any Project, in connection with the handling, treatment, removal, storage,
decontamination, clean up, transport or disposal of any Hazardous Materials at
any time located or present on, in, under or about any Project. The foregoing
indemnity shall further apply to any residual contamination on, in, under or
about any Project, or affecting any natural resources, and to any contamination
of any Project or natural resources arising in connection with the generation,
use, handling, storage, transport or disposal of any such Hazardous Materials,
and irrespective of whether any of such activities were or will be undertaken in
accordance with applicable Laws, but the foregoing indemnity shall not apply to
Hazardous Materials on any Project, the presence of which is caused by the
Administrative Agent or the Banks. Borrower hereby acknowledges and agrees that,
notwithstanding any other provision of this Agreement or any of the other Loan
Documents to the contrary, the obligations of Borrower under this Section (and
under Sections 4.17 and 5.10) shall be unlimited corporate obligations of
Borrower and shall not be secured by any Lien on any Project. Any obligation or
liability of Borrower to any Indemnitee under this Section 11.22 shall survive
the expiration or termination of this Agreement and all Letters of Credit and
the repayment of all Loans and the payment and performance of all other
Obligations owed to the Banks.
11.23 [Intentionally Omitted].
11.24 Removal of a Bank. Borrower shall have the right to remove a Bank as
a party to this Agreement if (a) such Bank is paid a material amount by Borrower
pursuant to Section 3.4 or Section 3.5, (b) any of the events described in
Section 9.1(j) occurs with respect to such Bank, or (c) such Bank becomes (and
at the time of the proposed removal hereunder remains) a Defaulting Bank
hereunder. Upon notice from Borrower, such Bank shall execute and deliver a
Commitments Assignment and Acceptance covering that Bank's Percentage of the
Commitments in favor of such Eligible Assignee as Borrower may designate with
the approval of the Administrative Agent, subject to payment in full by such
Eligible Assignee of all principal, interest and fees and any other amount owing
to such Bank through the date of assignment. The removal of any Defaulting Bank
pursuant to this Section 11.24 shall not preclude Borrower from pursuing all
remedies available to it against such Defaulting Bank for damages arising out of
such Defaulting Bank's breach hereof.
11.25 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS
- 82 -
WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
11.26 PURPORTED ORAL AMENDMENTS. BORROWER EXPRESSLY ACKNOWLEDGES THAT THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE AMENDED OR MODIFIED, OR THE
PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED, BY AN INSTRUMENT IN WRITING
THAT COMPLIES WITH SECTION 12.1. BORROWER AGREES THAT IT WILL NOT RELY ON ANY
COURSE OF DEALING, COURSE OF PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS BY ANY
REPRESENTATIVE OF THE ADMINISTRATIVE AGENT OR ANY BANK THAT DOES NOT COMPLY WITH
SECTION 12.1 TO EFFECT AN AMENDMENT, MODIFICATION, WAIVER OR SUPPLEMENT TO THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS.
11.27 Replacement of Notes. Upon receipt of evidence reasonably
satisfactory to Borrower of the loss, theft, destruction or mutilation of any
Note, and in the case of any such loss, theft or destruction, upon delivery of
an indemnity agreement reasonably satisfactory to Borrower or, in the case of
any such mutilation, upon surrender and cancellation of the applicable Note,
Borrower will execute and deliver, in lieu thereof, a replacement Note,
identical in form and substance to the applicable Note and dated as of the date
of the applicable Note and upon such execution and delivery all references in
the Loan Documents to such Note shall be deemed to refer to such replacement
Note.
11.28 Defaulting Banks. In the event that any Bank becomes a Defaulting
Bank, then, in addition to any rights and remedies that may be available to
Borrower or the other Banks and the Administrative Agent (such other Banks and
the Administrative Agent being called "Non Defaulting Banks") at law or in
equity:
(a) The Defaulting Bank's rights to participate in the
administration of the Loan and the Loan Documents, including any right to vote
upon, approve, disapprove, consent to or direct any action of the Administrative
Agent (other than amendments to the Loan Documents directly affecting the
Defaulting Bank's Commitment), shall be suspended and such rights shall not be
reinstated unless and until such Bank ceases to be a Defaulting Bank (and all
decisions, except the decision to remove the Administrative Agent, which are to
be based on a vote of the Requisite Banks or all Banks shall be resolved based
upon a decision or determination made by the required percentage of the
Non-Defaulting Banks); provided, however, that if the Administrative Agent is a
Defaulting Bank, the Administrative Agent shall continue to have all rights
provided for in this Loan Agreement, as the Administrative Agent only, with
respect to the administration of the Loan unless it is removed and replaced as
the Administrative Agent as provided in Section 10.8.
(b) Any or all of the Non-Defaulting Banks shall be entitled (but
shall not be obligated) to: (i) fund the aggregate amount that the Defaulting
Bank has failed to fund or pay to the Administrative Agent (such amount being
called the "Defaulted Amount"); and (ii) collect interest at the Default Rate on
the Defaulted Amount (after crediting all interest actually paid by Borrower on
the Defaulted Amount from time to time), either directly from the Defaulting
Bank or from amounts otherwise payable to the Defaulting Bank, for the period
from the date on which the Defaulted Amount was funded by the Non-Defaulting
Banks until the date on which payment is made. If the Administrative Agent has
funded the Defaulted Amount, the Administrative Agent shall be entitled to
collect interest at the Default Rate from the Defaulting Bank on the Defaulted
- 83 -
Amount as set forth above, as if the Administrative Agent were a Non-Defaulting
Bank that had elected to fund the Defaulted Amount.
(c) In the event the Defaulted Amount is funded by any
Non-Defaulting Banks or the Administrative Agent pursuant to Section 11.28(b)
above, the Defaulting Bank's interest in the Loans, the Loan Documents and
proceeds thereof shall be subordinated to any Defaulted Amount funded by any
Non-Defaulting Banks or the Administrative Agent pursuant to Section 11.28(b)
above, plus all interest which may be due in accordance with Section 11.28(b)
above (to be applied pari passu among the Non-Defaulting Banks (including the
Administrative Agent, unless the Administrative Agent is the Defaulting Bank)
funding the Defaulted Amount), without necessity for executing any further
documents; provided that such Defaulting Bank's interest in the Loan, the Loan
Documents and the proceeds thereof shall no longer be so subordinated if the
Defaulted Amount funded by the Non-Defaulting Banks or the Administrative Agent
(and all interest which has accrued pursuant to Section 11.28(b) above) shall be
repaid in full.
(d) If, following the payment in full of all amounts due pursuant
to Section 11.28(c) above to the Non-Defaulting Banks (including the
Administrative Agent, unless the Administrative Agent is the Defaulting Bank)
which have funded all or any portion of any Defaulted Amount, there remains any
unfunded Defaulted Amount which has not been funded by the Non-Defaulting Banks,
the Administrative Agent or the Defaulting Bank ("Unfunded Defaulted Amount"),
then a portion of the Defaulting Bank's interest in the Loan, the Loan Documents
and the proceeds thereof equal to the amount of the Unfunded Defaulted Amount
(together with interest thereon at the rate applicable to the Defaulted Amount
from time to time pursuant to the Loan Documents) shall be subordinated to the
interests of the Non-Defaulting Banks (including the Administrative Agent,
unless the Administrative Agent is the Defaulting Bank) unless and until such
Unfunded Defaulted Amount is funded either by one or more Non -Defaulting Banks,
the Administrative Agent or the Defaulting Bank.
(e) Subject to the provisions of Section 11.8 and the definition
of Eligible Assignee, each Non-Defaulting Bank will have the right, but not the
obligation, in its sole discretion, to acquire at par all or a proportionate
share (based on the ratio of its Commitments to the aggregate amount of the
Commitments of all of the Non-Defaulting Banks that elect to acquire a share of
the Defaulting Bank's Commitment of the Defaulting Bank's Commitment, including
without limitation its proportionate share in the outstanding principal balance
of the Loan, and all rights and interests of the Defaulting Bank under this
Agreement and the other Loan Documents.
(f) Nothing herein contained shall be deemed or construed to
waive, diminish, limit, prevent or estop the Administrative Agent, Borrower or
any Bank from exercising or enforcing any rights or remedies which may be
available at law or in equity as a result of or in connection with any default
under this Agreement by a Bank (including the right to bring suit against the
Defaulting Bank to recover the Defaulted Amount and interest thereon at the rate
provided in this Section 11.28).
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ARTICLE 12
AMENDMENTS; CONSENTS
12.1 Amendments; Consents. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by Borrower or any other Loan Party therefrom, may in any event be
effective unless in writing signed by the Requisite Banks (and, in the case of
any amendment, modification or supplement of or to any Loan Document to which
Borrower or any other Loan Party is a party, signed by each such party, and, in
the case of any amendment, modification or supplement to Section 3.2 or Article
10, signed by the Administrative Agent), and then only in the specific instance
and for the specific purpose given; and, without the approval in writing of all
the Banks, no amendment, modification, supplement, termination, waiver or
consent may be effective:
(a) To amend, modify, forgive, reduce or waive the principal of,
or the amount of principal, principal prepayments or the rate of interest
payable on, any Note, or the amount of the Commitments or the Percentage of any
Bank (except with respect to increases in the Line Commitment up to $400,000,000
as specifically provided for herein) or the amount of any commitment fee payable
to any Bank, or any other fee or amount payable to any Bank under the Loan
Documents or to waive an Event of Default consisting of the failure of Borrower
to pay when due principal, interest or any fee;
(b) To postpone any date fixed for any payment of principal of,
prepayment of principal of or any installment of interest on, any Note or any
installment of any fee, or to extend the term of the Commitments (other than
pursuant to Section 2.10);
(c) To amend the provisions of the definition of "Requisite Banks"
or "Maturity Date";
(d) To amend or waive this Section 12.1;
(e) To amend any provision of this Agreement that expressly
requires the consent or approval of all of the Banks to require a lesser number
of Banks to approve such action;
(f) To release Borrower or any Guarantor, except as specifically
provided in connection with the release of a Project from the Unencumbered Pool;
or
(g) To change the manner of distribution of any payments to the
Banks or the Administrative Agent.
No amendment, modification, supplement, extension, termination or waiver
or consent may be effective to require a Bank to fund more than its Percentage
of a Request for an Advance, a Swing Loan or a Letter of Credit without the
approval of any Bank affected thereby. There shall be no amendment, modification
or waiver of any provisions in the Loan Documents with respect to Swing Loans
without the consent of the Swing Loan Bank and there shall be no amendment,
modification or waiver of any provisions in the Loan Documents with respect to
Letters of Credit without the consent of the Administrative Agent. Any
amendment, modification, supplement,
- 85 -
termination, waiver or consent pursuant to this Section 12.1 shall apply equally
to, and shall be binding upon, all the Banks and the Administrative Agent.
- 86 -
IN WITNESS WHEREOF, the parties hereto have caused this Unsecured Credit
Agreement to be duly executed as of the date first above written.
BORROWER:
BIOMED REALTY, L.P., a Maryland
limited partnership
By: BioMed Realty Trust, Inc., its
sole general partner
By: /s/ Xxxx X. Xxxxxxxx
______________________________
Name: Xxxx X. Xxxxxxxx
____________________________
Title: Executive V.P.
___________________________
Address:
BioMed Realty, LP
00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
- 87 -
ADMINISTRATIVE AGENT:
KEYBANK NATIONAL ASSOCIATION, a
national banking association, as
Administrative Agent
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
-----------------------------
Title: Vice President
----------------------------
Address:
KeyBank - Real Estate Capital
127 Public Square - 8th Floor
Mail Code: OH-01-27-0839
Xxxxxxxxx, Xxxx 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxx Xxxxxx
BANKS:
KEYBANK NATIONAL ASSOCIATION, a
national banking association
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
-----------------------------
Title: Vice President
----------------------------
Address:
KeyBank - Real Estate Capital
127 Public Square - 8th Floor
Mail Code: OH-01-27-0839
Xxxxxxxxx, Xxxx 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxx Xxxxxx
- 88 -
X.X.XXXX NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
---------------------------
Title: Senior Vice President
--------------------------
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
---------------------------
Title: Senior Vice President
--------------------------
Address:
Commercial Real Estate
0000 XxXxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone: 000-000-000
Facsimile: 000-000-0000
Attn: Xxxx X. Xxxxxxx, Senior Vice
President
- 89 -
SOCIETE GENERALE
By: /s/ X.X. Xxxxxxxxxxx
---------------------------
Name: X.X. Xxxxxxxxxxx
-------------------------
Title: Director
------------------------
Address:
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxx Xxxxxxxxxxx
- 90 -
COMMERZBANK, AG
By: /s/ Xxxxx Xxxxx
----------------------------
Name: Xxxxx Xxxxx
--------------------------
Title: Assistant Treasurer
-------------------------
By: /s/ Xxxxxxxxx Xxxxx
----------------------------
Name: Xxxxxxxxx Xxxxx
--------------------------
Title: Vice President
-------------------------
Address:
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: _____________________
Facsimile: _____________________
Attn: Xxxxx Xxxxx, Assistant Treasurer
Attn: Xxxxxxxxx Xxxxx, Vice President
- 00 -
XXXXXXXX XX, XXX XXXX BRANCH
By: /s/ Xxxx Xxxxxxxx
---------------------------
Name: Xxxx Xxxxxxxx
-------------------------
Title: Vice President
------------------------
By: /s/ Xxxx Xxxx
---------------------------
Name: Xxxx Xxxx
-------------------------
Title: Director
------------------------
Address:
Eurohypo AG, New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Portfolio Operations
Attention: Legal Director
- 92 -
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------
Title: Vice President
------------------------
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxxx X. Xxxxxxx, Vice President
- 93 -
XXXXX FARGO NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxxxxxx
---------------------------
Name: Xxxx Xxxxxxxxxxx
-------------------------
Title: Vice President
------------------------
Address:
Real Estate Group - San Diego
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxx Xxxxxxxxxxx, Vice President
- 94 -
ROYAL BANK OF CANADA
By: /s/ Xxxxxx XxxXxxxxx
___________________________
Name: Xxxxxx XxxXxxxxx
_________________________
Title: Director
________________________
Address:
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxxx X. XxxXxxxxx, Director
Manager, Loans Admin.
with a copy to:
Manager Compliance
CTM Group
Facsimile: 000-000-0000
- 95 -
ALLIED IRISH BANKS, P.L.C.
By: /s/ Xxxxxxx Xxxxxx
___________________________
Name: Xxxxxxx Xxxxxx
_________________________
Title: Vice President
________________________
By: /s/ Xxxxxx X. Xxxxxxxxx
___________________________
Name: Xxxxxx X. Xxxxxxxxx
_________________________
Title: Vice President
________________________
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxxxx X. Xxxxxx
Attn: Xxxxx Xxxxxx
- 96 -
CITIZENS BANK OF PENNSYLVANIA
By: /s/ Xxxxxx Xxxxxxxx
___________________________
Name: Xxxxxx Xxxxxxxx
_________________________
Title: Vice President
________________________
Address:
Citizens Bank of Pennsylvania
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxxx Xxxxxxxx, Vice President
- 97 -
SOVEREIGN BANK
By: /s/ T. Xxxxxxx Xxxxxxx
___________________________
Name: T. Xxxxxxx Xxxxxxx
_________________________
Title: Senior Vice President
________________________
Address:
00 Xxxxx Xxxxxx XX0 XXX00-00
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: T. Xxxxxxx Xxxxxxx, Senior
Vice President
- 98 -
FIRST HORIZON BANK,
a division of First Tennessee Bank
By: /s/ X. Xxxxxx X'Xxxxx, III
___________________________
Name: X. Xxxxxx X'Xxxxx, III
_________________________
Title: Senior Vice President
________________________
Address:
0000 Xxxxxx Xxxx
Xxxxx 0000
XxXxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: X. Xxxxxx X'Xxxxx, III
- 99 -
COMERICA BANK
By: /s/ Xxxxx Xxxxxxxxx
___________________________
Name: Xxxxx Xxxxxxxxx
_________________________
Title: Assistant Vice President
________________________
Address:
000 Xxxxxxxx Xxxxxx - XX0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxx Xxxxxxxxx, Assistant
Vice President
- 100 -
XXXXXXX XXXXX BANK, FSB
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------
Title: Senior Vice President
-------------------------
Address:
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxxxx X. Xxxxxx Xx.
- 101 -
