EXHIBIT 10.24
AMENDED AND RESTATED SECURED REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED SECURED REVOLVING CREDIT AGREEMENT, dated as of
this 30th day of December, 2003 by and among WINDROSE MEDICAL PROPERTIES, L.P.,
a Virginia limited partnership (the "Borrower"), THE HUNTINGTON NATIONAL BANK, a
national banking association ("Huntington"), and each of the lenders listed on
the signature pages hereof (individually, a "Lender" and collectively, the
"Lenders"), and each of their respective successors and assigns;
WITNESSETH:
The parties hereto, in consideration of their mutual covenants hereinafter
set forth and intending to be legally bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
1.01. Certain Definitions. The following words and terms shall have the
following meanings, respectively, unless the context hereof clearly otherwise
requires:
"Acquisition Price" shall mean the total costs (including, but not
limited to the purchase price, due diligence costs, legal fees, accounting
fees, loan assumption costs and expenses, closing costs and other
customary costs and expenses of closing) paid by Borrower or a Special
Purpose Entity to acquire a Real Estate Asset.
"Adjusted EBITDA" shall mean EBITDA, plus Loss on Interest Rate Swap
plus corporate general and administrative expenses.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. A Person shall be deemed to control another Person if such Person
owns 10% or more of any class of voting securities (or other ownership
interests) of the controlled Person or possesses, directly or indirectly,
the power to direct or cause the direction of the management or policies
of the controlled Person, whether through ownership of stock, by contract
or otherwise.
"Agent" shall mean The Huntington National Bank and any successor
Agent appointed hereunder.
"Adjusted LIBOR Interest Rate" shall mean a rate per annum equal to
the quotient obtained (rounded upwards, if necessary, to the nearest
1/100th of 1%) by dividing (i) the applicable LIBOR Interest Rate by (ii)
1.00 minus the Reserve Percentage.
"Advance" shall mean an advance to the Borrower on the account of
Loan.
"Agreement" shall mean this Amended and Restated Secured Revolving
Credit Agreement, as the same may be supplemented, modified or amended
from time to time.
"Appraised Value" shall mean, with respect to a Mortgaged Property,
the fair market value of such Mortgaged Property, as determined by the
appraisal or any update thereof for such Mortgaged Property, as provided
in Section 4.02 (l) hereof.
"Assignment and Acceptance" shall mean an Assignment and Acceptance
Agreement in the form attached hereto as Exhibit A.
"Assignment of Rents" shall mean an Assignment of Rents and Leases
in the form attached hereto as Exhibit B, with blanks completed
appropriately, given by the Borrower or a Special Purpose Entity, as
applicable, to the Lenders with respect to a Mortgaged Property as
security for the Borrower's obligations under the Loan, subject to such
changes as may be required to comply with the requirements of the law of
the state in which such Mortgaged Property is located, as the same may be
supplemented, modified or amended from time to time.
"Borrower's Affidavit" shall mean a Borrower's Closing Affidavit in
the form of Exhibit C attached hereto, with blanks completed
appropriately, given by the Borrower or a Special Purpose Entity to the
Lenders with respect to a Mortgaged Property.
"Borrowing Base" shall mean sixty-five percent (65%) of the
aggregate Appraised Value of the Mortgaged Properties, subject to the
provisions of Section 2.01 hereof.
"Borrowing Base Certificate" shall mean a certificate in the form of
Exhibit D attached hereto executed by the Chief Executive Officer or Chief
Financial Officer of the Borrower.
"Business Day" shall mean each day excluding Saturdays, Sundays and
any other day on which Agent is closed for business to the public.
"Capital Expenditure Reserve" shall mean an amount equal to the
product of (i) $0.15 multiplied by (ii) the gross rentable square footage
of the Real Estate Assets as determined from time to time by the
Compliance Certificate and identified as item E thereon.
"Capital Expenditure Reserve Factor" shall mean $0.15 per rentable
square foot.
"Closing" shall mean the execution and delivery by the Borrower to
the Lenders of this Agreement, the Notes and the other Loan Documents.
"Closing Date" shall mean the date of the Closing.
"Collateral Assignment of Mortgaged Property Sale Agreement" shall
mean a Collateral Assignment of Mortgaged Property Sale Agreement in the
form attached hereto as Exhibit E, with blanks completed appropriately,
given by the Borrower or a Special Purpose Entity, as applicable, to the
Lenders with respect to a Mortgaged
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Property as security for the Borrower's obligations under the Loan, as the
same may be supplemented, modified or amended from time to time.
"Commitment" shall mean the maximum amount each Lender has agreed to
lend to Borrower as part of the Loan, as set forth below the signature
line of each Lender, subject to modification by each Assignment and
Acceptance.
"Commitment Fee" shall mean an amount equal to One-Half of One
Percent (1/2 of 1%) of each Lender's Commitment under the Loan.
"Compliance Certificate" shall mean a certificate in the form of
Exhibit F annexed hereto, executed by the chief executive officer or chief
financial officer of Borrower.
"Conditional Default" shall mean any condition, event, act or
omission which, with the giving of notice or passage of time or both,
would constitute an Event of Default.
"Consolidated Group" shall mean Guarantor, Borrower and all
Subsidiaries of Guarantor or Borrower which are consolidated with
Guarantor and/or Borrower for financial reporting purposes under GAAP.
Consolidated Group shall not include an Investment Affiliate or any other
Affiliate which is not owned 50% or more by the Borrower, Guarantor, or
their respective Subsidiaries.
"Construction Loans" shall mean financing obtained by Borrower,
Guarantor or a Special Purpose Entity to finance the costs set forth in
the Real Estate Asset Budget Amount for the construction of a Real Estate
Asset.
"Current Asset Value of Existing Real Estate Asset" shall mean, for
any calendar quarter, the current asset value of Real Estate Assets, other
than Real Estate Assets acquired during such calendar quarter, determined
from time to time by the Compliance Certificate and identified as item H
thereon.
"Debt Service Coverage Ratio" shall mean the ratio of EBITDA plus
Loss on Interest Rate Swap during the then-ending calendar quarter
determined as of the last day of such calendar quarter, annualized
(multiplied by 4), to the aggregate sum of all Interest payments and
principal payments (excluding principal payments upon maturity of a loan
or voluntary prepayments of principal) on Indebtedness of the Consolidated
Group, and the Consolidated Group's pro rata share of any Indebtedness of
any Investment Affiliate due and payable during such then-ending calendar
quarter determined as of the last day of such calendar quarter, annualized
(multiplied by 4). The first test shall be conducted for the quarter ended
December 31, 2003, and tested at each quarter end thereafter.
"Default Rate" shall mean a rate of interest from time to time which
is Two Percent (2%) per annum above the applicable Interest Rates
otherwise then in effect.
"Defaulting Lender" shall have the meaning set forth in Section
11.5(b).
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"Deposit" shall mean an xxxxxxx money deposit made by a buyer under
a Mortgaged Property Sale Agreement and held by a Title Company or by the
Borrower or Special Purpose Entity, as applicable.
"Disbursement Request" shall mean a statement of the Borrower
setting forth the amount of an Advance being requested and containing such
other information as is required by Paragraph (a) of Section 5.01 hereof.
"EBITDA" shall mean for any period, with respect to the Consolidated
Group on a consolidated basis, determined in accordance with GAAP, the sum
of the net income (or net loss) for the then-ending calendar quarter,
including the Consolidated Group's pro rata share of net income (or net
loss) in any Investment Affiliate, plus the sum of all expenses determined
in accordance with GAAP for the then-ending calendar quarter for (a)
Interest, including interest on the Mezzanine Debt upon achievement of
Stabilized Occupancy of the Real Estate Asset for which the Mezzanine Debt
has been incurred, (b) depreciation, (c) amortization, (d) all accrued or
paid taxes on or measured by income to the extent included in the
determination of such net income (or net loss), and (e) amounts
attributable to the minority interest of members of Special Purpose
Entities and other minority members or partners of Borrower, Special
Purpose Entities or Guarantor). Net income (or net loss) shall be computed
without giving effect to extraordinary losses or gains.
"Environmental Indemnity Agreement" shall mean an Environmental
Indemnity Agreement in the form attached hereto as Exhibit G, with blanks
completed appropriately, to be executed and delivered with respect to a
Mortgaged Property by a Special Purpose Entity, the Borrower and the
Guarantor to the Lenders, as the same may be supplemented, modified or
amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" shall mean any trade or business, whether or not
incorporated, which together with the Borrower would be treated as a
single employer under ERISA.
"Event of Default" shall mean any of the events of default described
in Section 8.01 hereof.
"FEMA" shall mean the Federal Emergency Management Agency, or any
successor entity.
"Fixtures" shall mean all personal property now or hereafter owned
by the Borrower or a Special Purpose Entity and now or hereafter affixed
to, incorporated into or to be incorporated into, or used or useful in
connection with, a Mortgaged Property or any part thereof, all
replacements thereof, additions thereto and substitutions therefor.
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time as promulgated by the
Financial Accounting
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Standards Board and recognized and interpreted by the American Institute
of Certified Public Accountants as of the end of the first full quarter
following the promulgation of such standards.
"Governmental Authorities" shall mean the United States of America,
the state and local jurisdictions in which a Mortgaged Property is located
and any political subdivision thereof, and any agency, department,
commission, board, bureau or instrumentality of any of them.
"Governmental Requirement" shall mean any law, ordinance, order,
rule or regulation of any Governmental Authority, including but not
limited to laws, ordinances, orders, rules or regulations with regard to
zoning, subdivision, building, safety, fire protection or environmental
matters applicable to a Mortgaged Property.
"Guarantor" shall mean Windrose Medical Properties Trust, a Maryland
real estate investment trust.
"Guaranty" shall mean the Amended and Restated Unconditional
Guaranty executed and delivered by Guarantor to the Lenders of even date
herewith, pursuant to which the Guarantor guarantees the Borrower's
obligations under the Loan Documents, as the same may be supplemented,
modified or amended from time to time.
"Hazardous Constituent" shall have the meaning assigned thereto
under 40 C.F.R. Section 260.10.
"Hazardous Materials" shall mean, collectively, Hazardous
Substances, Hazardous Constituent and Solid Wastes.
"Hazardous Materials Laws" shall mean all laws, statutes,
ordinances, rules, regulations, permits, licenses, judgments, writs,
injunctions, decrees, orders, determinations, directives and standards
promulgated by any governmental authority concerning Hazardous Materials
or concerning the protection of, or regulation of the discharge of
substances into, the environment or concerning the health or safety of
persons with respect to environmental hazards, and includes, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. Sections 9601 et seq., Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of
1976 and Solid and Hazardous Waste Amendments of 1984, 42 U.S.C. Sections
6901 et seq., Federal Water Pollution Control Act, as amended by the Clean
Water Act of 1977, 33 U.S.C. Sections 1251 et seq., Clean Air Act of 1966,
as amended, 42 U.S.C. Sections 7401 et seq., Toxic Substances Control Act
of 1976, 15 U.S.C. Sections 2601 et seq., Occupational Safety and Health
Act of 1970, as amended, 29 U.S.C. Sections 651 et seq., Emergency
Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Sections 11001
et seq., National Environmental Policy of 1975, 42 U.S.C. Sections 4321 et
seq., Safe Drinking Water Act of 1974, as amended, 42 U.S.C. Section
300(f) et seq., the Hazardous Materials Transportation Act, 42, U.S.C.
Section 1801 et seq., the Federal Insecticide, Fungicide, and
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Rodenticide Act, U.S.C. Section 7401 et seq., and any similar or
implementing law of the state in which a Mortgaged Property is located,
and all amendments, rules, and regulations promulgated thereunder or
implementing the same.
"Hazardous Substances" shall mean at any time any substance, waste,
pollutant, contaminant or material, in solid, liquid or gaseous form,
which: (i) is a substance regulated or defined or designated as hazardous,
extremely or imminently hazardous, objectionable, dangerous, or toxic
pursuant to any law, by any local, state, territorial or federal
governmental authority; (ii) is a substance with respect to which such a
governmental authority otherwise requires environmental compliance,
investigation, monitoring, reporting, or remediation; including but not
limited to, (A) all substances, wastes, pollutants, contaminants and
materials regulated, or defined or designated as hazardous, extremely or
imminently hazardous, dangerous, objectionable or toxic, under any
Hazardous Materials Law; (B) petroleum and petroleum based products
including crude oil, used oil and any fractions thereof; (C) natural gas,
synthetic gas, and any mixtures thereof; (D) radon; (E) radioactive
substances and materials; (F) asbestos; (G) urea formaldehyde; (H)
polychlorinated biphenyls; (I) lead; (J) methane; (K) flammable substances
and materials; and (L) explosives.
"Improvements" shall mean the improvements located upon a Mortgaged
Property.
"Indebtedness" shall mean all obligations, contingent and otherwise,
that in accordance with GAAP should be classified upon a Person's balance
sheet as liabilities, or to which reference should be made by footnotes
thereto, including, without limitation, all of the following, whether or
not so classified: (a) all debt and similar monetary obligations, whether
direct or indirect; (b) all liabilities secured by any mortgage, pledge,
negative pledge, security interest, lien, negative lien, charge, or other
encumbrance existing on property owned or acquired subject thereto,
whether or not the liability secured thereby shall have been assumed; (c)
all guarantees, endorsements and other contingent obligations whether
direct or indirect in respect of indebtedness or obligations of others,
including any liability as the general partner of a partnership, any
obligation to supply funds to or in any manner to invest in, directly or
indirectly, any Person, to purchase indebtedness, or to assure the owner
of indebtedness against loss, through an agreement to purchase goods,
supplies, or services for the purpose of enabling the debtor to make
payment of the indebtedness held by such owner or otherwise, and the
obligations to reimburse the issuer in respect of any letters of credit;
(d) obligations as a lessee under any "capitalized lease" (as determined
in accordance with GAAP); (e) all subordinated debt; (f) all obligations
in respect of deferred purchase prices; (g) all obligations to contribute
money; (h) all obligations under interest rate swaps and similar
agreements; and (i) such Person's liabilities, contingent or otherwise of
the type set forth in (a) through (h) above, under any joint venture,
limited liability company or partnership agreement. Indebtedness shall not
include proceeds from the issuance of preferred stock if such proceeds are
classified as equity under GAAP.
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"Inspecting Architect" shall mean an independent architectural or
engineering firm employed by the Agent with respect to a Mortgaged
Property. The Borrower may submit to the Agent a list of suggested
architectural and engineering firms for consideration by the Agent. The
Agent shall not, however, be obligated to select or retain an Inspecting
Architect from such list.
"Interest" shall mean, for any period, the sum of all interest due
and payable for such period (including amortization of original issue
discount and debt issuance costs on any Indebtedness and the interest
portion of any deferred payment obligation, calculated in accordance with
generally accepted accounting principles), capitalized interest and
non-cash interest expenses, all commissions, discounts and other fees and
expenses owed with respect to letters of credit and bankers' acceptance
financing, the net costs associated with any type of interest rate
protection agreements (including caps, swaps, options, futures or similar
agreements or arrangements with respect to interest rates), and all but
the principal component of rentals in respect of "capitalized leases"
(determined in accordance with GAAP) paid, accrued or due to be paid or to
be accrued during such period.
"Interest Rate" shall mean, as to each Advance, a rate per annum
equal to (i) for Prime Advances, the Prime Interest Rate and (ii) for
LIBOR Advances, the Adjusted LIBOR Interest Rate.
"Interest Rate Protection Product" shall mean an interest rate
hedging program through the purchase of an interest rate swap, cap or
other such interest rate protection product with respect to any
Indebtedness during the term of the Loan plus one (1) day.
"Investment Affiliate" shall mean any Person in which the
Consolidated Group, directly or indirectly, has an ownership interest,
whose financial results are not consolidated under GAAP with the financial
results of the Consolidated Group.
"Lease" shall mean a lease of all or a portion of a Mortgaged
Property (excluding any incidental real estate which is contiguous to the
leased real estate and improvements and which the Borrower or a Special
Purpose Entity is or was required to purchase as part of the acquisition
of the leased real estate and improvements) entered into in the ordinary
course of business by and between the Borrower or a Special Purpose
Entity, as applicable, as landlord, and a Tenant, as tenant.
"Letter of Credit" shall mean the One Million Dollar ($1,000,000)
Standby Letter of Credit issued by Agent on behalf of Lenders at the
request of Borrower and Guarantor in favor of Orix Capital Markets, LLC
pursuant to Section 2.10 hereof.
"Leverage Ratio" shall mean the ratio of (a) Total Current Value of
Assets to (b) Total Liabilities as such ratio shall be determined from
time to time in accordance with this Agreement and calculated in the
manner set forth in the Compliance Certificate.
"LIBOR" shall mean the average (rounded upward to the nearest 1/16
of 1%) of the per annum rates at which deposits in immediately available
funds in U.S. dollars for
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the applicable LIBOR Interest Period and in the amount of the applicable
LIBOR Advance are offered to the Agent by prime banks in the London
interbank Eurodollar market, determined as of 11:00 a.m. London time (or
as soon thereafter as practicable) two (2) London Banking Days prior to
the beginning of the applicable LIBOR Interest Period.
"LIBOR Advance" shall mean any Advance which is determined with
reference to the Adjusted LIBOR Interest Rate.
"LIBOR Interest Period" shall mean a period of one (1) month, two
(2) months, three (3) months, or six (6) months as selected by the
Borrower.
"LIBOR Interest Rate" shall mean a rate per annum equal to (i) Two
Percent (2%) above LIBOR at such time as the Leverage Ratio is less than
Forty Percent (40%), (ii) Two and One-Quarter Percent (2-1/4%) above LIBOR
at such time as the Leverage Ratio equals or exceeds Forty Percent (40%)
but is less than Sixty Percent (60%), and (iiii) Two and One-Half Percent
(2-1/2%) above LIBOR at such time as the Leverage Ratio equals or exceeds
Sixty Percent (60%) or in the event Borrower fails to provide Agent with
the Compliance Certificate in accordance with the terms hereof.
"Loan" shall mean the revolving loan under the Loan Documents from
the Lenders to the Borrower in a principal amount not to exceed Seventy
Million Dollars ($70,000,000) at any time outstanding.
"Loan Documents" shall mean, this Agreement, the Notes, Mortgages,
Assignments of Rents, Collateral Assignments of Mortgaged Property Sale
Agreements, Guaranty, Borrower's Affidavits, Environmental Indemnities,
the Pledge Agreements and other documents executed and/or delivered by or
on behalf of the Borrower, the Guarantor or a Special Purpose Entity in
connection with the Loan or any Advance which are in effect from time to
time, as the same may be supplemented, modified or amended from time to
time.
"London Banking Day" shall mean a day on which commercial banks are
open for business in London, England, and quoting deposit rates for U.S.
dollar deposits.
"Loss on Interest Rate Swap" shall mean the loss recognized
currently in earnings pursuant to compliance with Statement of Financial
Accountings Standard No. 133, "Accounting for Derivative Instruments and
Hedging Activities."
"Major Lease" shall mean a Lease between Borrower or a Special
Purpose Entity, as applicable, and a Major Tenant.
"Major Tenant" shall mean any Tenant occupying twenty-five percent
(25%) or more of a Mortgaged Property.
"Material Adverse Effect" shall mean any fact or circumstance which
(a) materially and adversely effects the business, operation, property or
financing
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conditions of the Borrower and Guarantor taken as a whole, or (b) has a
material adverse effect on the ability of the Borrower, Guarantor or a
Special Purpose Entity to perform their respective obligations under this
Agreement, the Notes or the other Loan Documents.
"Maturity Date" shall mean September 30, 2005.
"Mezzanine Debt" shall mean Indebtedness of Borrower to The
Huntington Real Estate Investment Company or to other financial
institutions acceptable to Agent not to exceed the sum of Ten Million
Dollars ($10,000,000) in the aggregate, which Indebtedness is secured by
equity interests in entities having Indebtedness secured by mortgages and
which Indebtedness is subordinate to such mortgage debt.
"Monetary Event of Default" shall mean an Event of Default under
Section 8.01(a) hereof or any other Event of Default which can be cured by
the payment of money.
"Mortgage" shall mean a Real Estate Mortgage and Security Agreement
substantially in the form of Exhibit H-1 attached hereto, with blanks
completed appropriately, or a Deed of Trust and Security Agreement
substantially in the form of Exhibit H-2 attached hereto, with blanks
completed appropriately, given by the Borrower or a Special Purpose
Entity, as applicable, to the Lenders with respect to a Mortgaged Property
as security for the Borrower's obligations under the Loan, subject to such
changes as may be required to comply with the requirements of the laws of
the state in which the Mortgaged Property is located, as the same may be
supplemented, modified or amended from time to time.
"Mortgage Release Price" shall mean with respect to a Mortgaged
Property, an amount equal to the principal reduction required to allow
Borrower to remain in compliance with the Borrowing Base and the Debt
Service Coverage Ratio as set forth in this Agreement determined in
accordance with Section 2.07 (b) hereof.
"Mortgaged Property" shall mean all Real Estate Assets securing the
Loan by virtue of a Mortgage.
"Mortgaged Properties Debt Service" shall mean the sum of all
Interest payments and principal payments on the outstanding principal
balance of the Loan due and payable during the then-ending calendar
quarter, annualized (multiplied by 4), assuming the level amortization of
the then outstanding principal balance of the Loan over a period of
twenty-five (25) years, at a per annum interest rate equal to Two Percent
(2%) above the most recent weekly average yield on United States Treasury
Securities adjusted to a constant maturity of ten (10) years as measured
on the first day of each calendar quarter.
"Mortgaged Properties Debt Service Coverage Ratio" shall mean the
Mortgaged Properties Net Operating Income divide by the Mortgaged Property
Debt Service.
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"Mortgaged Properties Net Operating Income" shall mean the total
rental income during the then-ending calendar quarter, annualized
(multiplied by 4) (including minimum rent, additional rent, common area
maintenance, real estate tax and insurance reimbursements and other tenant
reimbursements, including tenant expense reimbursements and tenant
improvement reimbursements, recurring parking income), received by
Borrower and each Special Purpose Entity, as applicable, and arising from
the ownership and operation of the Mortgaged Properties (excluding tenant
security deposits, rents from tenants that are subject to a voluntary or
involuntary petition for relief under any federal or state bankruptcy
codes or insolvency laws, and rents from tenants that are not in
possession of its demised premises, except rents and other payments from
tenants under master leases or occupancy agreements approved by Agent),
less the sum of all actual costs, taxes, expenses and disbursements paid
or due and payable during such then-ending calendar quarter, annualized
(multiplied by 4), in connection with the ownership, leasing, management,
operation, maintenance and repair of the Mortgaged Properties and of the
personal property, fixtures, machinery, equipment, systems and apparatus
located therein or used in connection therewith, but excluding (i)
non-cash expenses, such as depreciation and amortized costs, (ii) state
and federal income taxes, (iii) the non-current portion of capital
expenditures, (iv) any expenses paid directly by tenants to third parties,
(v) any adjustments made for straight lining of rents, (vi) extraordinary
income or expense, and (vii) debt service payments on all Indebtedness of
Borrower with respect to the Mortgaged Properties; all determined in
accordance with GAAP, as measured on the last day of each calendar
quarter.
"Mortgaged Property Sale Agreement" shall mean with respect to a
Mortgaged Property, an agreement between the Borrower or a Special Purpose
Entity, as applicable, and a buyer not affiliated with the Borrower or the
Guarantor which is approved by the Agent in a form reasonably acceptable
to the Agent, pursuant to which agreement the Borrower or a Special
Purpose Entity, as applicable, agrees to sell, and such buyer agrees to
purchase, a Mortgaged Property. Such sale agreement shall require the
buyer thereunder to deposit a Deposit with the Borrower or a Special
Purpose Entity, as applicable, or a Title Company or other escrow agent.
Such term shall also include the exercise of a right of first refusal or
purchase option in a lease of a Mortgaged Property held by a Major Tenant.
"Mortgaged Property Site" shall mean the real estate portion of a
Mortgaged Property.
"Non-Monetary Event of Default" shall mean any Event of Default,
other than a Monetary Event of Default.
"Non-Use Fee" shall mean an amount equal to 1/5 of 1% on the
principal amount of undrawn funds then available under the Loan.
"Notes" shall mean those certain Replacement Credit Notes in the
aggregate original principal amount of Seventy Million Dollars
($70,000,000) executed and
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delivered by Borrower to the Lenders of even date herewith, as the same
may be renewed, extended, supplemented, replaced, modified or amended from
time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to ERISA, or any successor entity.
"Percentage" shall mean, with respect to each Lender, the percentage
which its Commitment constitutes of the maximum amount of the Loan as set
forth below the signature line of each Lender as the same may be adjusted
from time to time.
"Person" shall mean an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization or a Governmental Authority.
"Personal Property" shall mean all tangible personal property owned
by the Borrower or a Special Purpose Entity and now or at any time
hereafter located on or at a Mortgaged Property or used in connection
therewith or with the improvements forming a part of such Mortgaged
Property.
"Plan" shall mean an Employee Benefit Plan which is covered by Title
4 of ERISA or subject to the minimum lending standards under Section 412
of the Internal Revenue Service as to which the Borrower may have any
liability.
"Plans and Specifications" shall mean the plans and specifications
for the construction of the Improvements forming part of an applicable
Mortgaged Property prepared by the architect therefor approved by
Borrower.
"Pledge Agreements" shall mean certain Membership Pledge Agreements
now or hereafter executed by Borrower in favor of Lenders pursuant to
which Borrower pledges its membership interest in Special Purpose
Entities.
"Prime Advance" shall mean any Advance which is determined with
reference to the Prime Rate.
"Prime Interest Rate" shall mean a rate per annum equal to the Prime
Rate.
"Prime Rate" shall mean the interest rate per annum announced from
time to time by the Agent as its prime rate. Each interest rate determined
by reference to the Prime Rate shall change automatically from time to
time, effective as of the effective date of each change in the Prime Rate.
The Agent's Prime Rate is not necessarily the lowest rate at which the
Agent lends its funds. The Prime Rate is only an index rate from which
interest rates actually charged to the Agent's customers may be measured.
The use of the Prime Rate does not constitute a commitment by the Agent to
lend money at a preferred rate.
"Prohibited Transaction" shall have the meaning ascribed thereto by
ERISA.
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"Project Agreement" shall mean a Project Agreement in the form of
Exhibit I attached hereto, with blanks completed appropriately, to be
entered into by the Agent and the Borrower and a Special Purpose Entity,
pursuant to which the Required Lenders approve a Mortgaged Property.
"Real Estate Asset" shall mean the real estate and all improvements
thereon for use as a medical related facility owned by the Consolidated
Group, together with any incidental real estate which is contiguous to the
leased real estate and improvements and which Consolidated Group is or was
required to purchase as part of the acquisition of the leased real estate
and improvements.
"Real Estate Asset Budget Amount" shall mean the total budgeted cost
(as such budget shall be updated from time to time) of all projects under
construction owned by the Consolidated Group plus the Consolidated Group's
pro rata share of the total budgeted cost (as such budget shall be updated
from time to time) of all projects under construction owned by any
Investment Affiliate or by any Subsidiary of the Consolidated Group that
is not a wholly owned Subsidiary provided, however, that with respect to
(i) projects owned by any such Investment Affiliate or Subsidiary for
which the respective financial responsibilities of the other owners of
such Investment Affiliate or Subsidiary on the one hand and the
Consolidated Group and its wholly owed Subsidiaries on the other hand are
not in proportion to the respective ownership interests in the applicable
Investment Affiliate or Subsidiary, then the portion of budgeted cost of
such project included in the Real Estate Asset Budget Amount shall be
adjusted to reflect the Consolidated Group's actual financial
responsibility related to such project. Such costs shall include, without
limitation, all land acquisition costs (but may exclude costs of land used
for expansion projects which was not purchased for the purpose of such
expansion project), design and permitting costs, construction period real
estate taxes, leasing costs including brokers' commissions and tenant
improvements, allowances or reimbursements, construction costs and opening
costs. With respect to any projects financed with Indebtedness other than
this Loan, such costs shall also include construction period interest and
all fees and expenses associated with such Indebtedness.
"Recourse Indebtedness" shall mean any Indebtedness of the Borrower,
Guarantor or Special Purpose Entity, including the Borrower's, Guarantor's
or Special Purpose Entity's respective recourse pro rata share of any
Indebtedness in any Investment Affiliate, for which the lender thereof
does not agree to look solely to a Real Estate Asset for the payment of
the indebtedness subject to usual and customary exculpation carve out
provisions and environmental indemnification agreements.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System, as amended from time to time.
"Reportable Event" shall have the meaning ascribed thereto by ERISA.
"Restricted Assets" shall have the meaning set forth in Section 7.07
hereof.
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"Required Lenders" shall mean Lenders holding Percentages
aggregating at least Sixty-Six and Two-Thirds Percent (66-2/3%) or
greater.
"Reserve Percentage" shall mean for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including, without
limitation, all basic, supplemental, marginal and other reserves and
taking into account any transitional adjustments or other scheduled
changes in reserve requirements) for a member of the Federal Reserve
System in Cleveland, Ohio, in respect of "Eurocurrency Liabilities." The
Adjusted LIBOR Interest Rate shall be adjusted automatically on and as of
the effective date of any change in the Reserve Percentage.
"Single Mortgaged Property Debt Service" shall mean the total sum of
all Interest payments and principal payments which would be due and
payable during the then-ending calendar quarter, annualized (multiplied by
4), with respect to a single Mortgaged Property assuming the level
amortization of a principal loan balance equal to Sixty-Five Percent (65%)
of the Appraised Value of such Mortgaged Property over a period of
twenty-five (25) years, at a per annum interest rate equal to Two Percent
(2%) above the most recent weekly average yield on United States Treasury
Securities adjusted to a constant maturity of ten (10) years as measured
on the last day of each calendar quarter.
"Single Mortgaged Property Debt Service Coverage Ratio" shall mean
the Single Mortgaged Property Net Operating Income divided by the Single
Mortgaged Property Debt Service.
"Single Mortgaged Property Net Operating Income" shall mean the
total rental income, with respect to a Mortgaged Property during the
then-ending calendar quarter, annualized (multiplied by 4) (including
minimum rent, additional rent, common area maintenance, real estate tax
and insurance reimbursements and other tenant reimbursements, including
tenant expense reimbursements and tenant improvement reimbursements,
recurring parking income), received by Borrower and each Special Purpose
Entity, as applicable, arising from the ownership and operation such
Mortgaged Property (excluding tenant security deposits, rents from tenants
that are subject to a voluntary or involuntary petition for relief under
any federal or state bankruptcy codes or insolvency laws and rents from
tenants that are not in possession in its demised premises at such
Mortgaged Property, except rents and other payments from tenants under
master leases or occupancy agreements approved by Agent), less the sum of
actual costs, taxes, expenses and disbursements paid or due and payable
during such then-ending calendar quarter, annualized (multiplied by 4), in
connection with the ownership, leasing, management, operation, maintenance
and repair of such Mortgaged Property and of the personal property,
fixtures, machinery, equipment, systems and apparatus located therein or
used in connection therewith, but excluding (i) non-cash expenses, such as
depreciation and amortized costs, (ii) state and federal income taxes,
(iii) the non-current portion of capital expenditures, (iv) any expenses
to be paid directly by tenants to third parties, (v) any adjustments made
for straight lining of rents, (vi) extraordinary income or
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expense, and (vii) the Single Mortgaged Property Debt Service for such
Mortgaged Property, all determined in accordance with GAAP, as measured on
the last day of each calendar quarter.
"Solid Wastes" shall have the meaning assigned thereto in 40 C.F.R.
Section 261.2.
"Special Purpose Entities" shall mean limited liability companies or
limited partnerships which own a Mortgaged Property and in which Borrower
holds a controlling interest.
"Stabilized Occupancy" shall mean, with respect to a Real Estate
Asset under construction, the time when such Real Estate Asset has
received a certificate of occupancy (or similar permit or approval).
"Storage Containers" shall mean existing and future containers for
Hazardous Materials and above ground and underground storage tank systems
(including underground piping, conduits or sumps).
"Subordination, Non-Disturbance and Attornment Agreement" shall mean
a Subordination, Non-Disturbance and Attornment Agreement in the form of
Exhibit J attached hereto, with blanks completed appropriately, entered
into by the Agent, the Borrower or a Special Purpose Entity, as
applicable, and a Major Tenant with respect to a Mortgaged Property,
subject to such changes as may be required to comply with the requirements
of the law of the state in which the Mortgaged Property is located and
such other revisions as may be reasonably acceptable to Agent, as the same
may be supplemented, modified or amended from time to time.
"Subsidiary" shall mean, with respect to any Person, (i) any
corporation more than 50% of the outstanding securities having ordinary
voting power of which shall at the time be owned or controlled, directly
or indirectly, by such Person or by one or more of its Subsidiaries or by
such Person and one or more of its Subsidiaries, or (ii) any partnership,
limited liability company, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled. Unless
otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower and/or Guarantor. Subsidiaries of
a Person shall not include an Investment Affiliate or any other Affiliate
which is not owned 50% or more directly by a Person.
"Tangible Net Worth" shall mean the sum of capital surplus, earned
surplus, capital stock, accumulated depreciation and amortization minus
deferred charges, intangibles (excluding lease intangibles and deferred
loan fees) and treasury stock, all as determined in accordance with GAAP
consistently applied.
"Tenant" shall mean any tenant of a Mortgaged Property.
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"Title Company" shall mean with respect to a Mortgaged Property, any
other title insurer designated by the Borrower and approved by the Agent
which agrees to insure the priority of the lien of the Mortgage on such
Mortgaged Property.
"Title Policy" shall mean with respect to a Mortgaged Property, the
policy of title insurance issued by a Title Company to the Lenders
insuring the priority of the lien of the Mortgage on such Mortgaged
Property.
"Total Current Value of Assets" shall be the amount determined from
time to time by the Compliance Certificate and identified as item M
thereon.
"Total Current Value of Real Estate Assets" shall be the amount
determined from time to time by the Compliance Certificate and identified
as item K thereon.
"Total Liabilities" shall mean all liabilities of the Consolidated
Group, including the pro rata share of any liabilities of the Consolidated
Group in any Investment Affiliate, all as determined in accordance with
GAAP.
"Unrestricted Cash and Cash Equivalents" shall mean unencumbered
cash on hand plus cash reserved for the payment of taxes, tenant
improvements, capital expenditures, lease commissions or other reserves
available to offset expenditures generally recognized as property
operating expenses, or other general and administrative expenses.
"Variable Rate Indebtedness" shall mean Indebtedness which does not
bear interest at a fixed rate of interest and is not covered by an
Interest Rate Protection Product.
"Wetlands" shall mean any wetlands area or other area which is
subject to the regulatory jurisdiction of the United States Environmental
Protection Agency and/or Army Corps of Engineers and/or any other
Governmental Authority, under any Governmental Requirement, including,
without limitation, the Clean Water Act, 33 U.S.C. Section 1251, et. seq.
Unless the context clearly otherwise requires, the foregoing definitions
shall be equally applicable to both the singular and plural forms.
ARTICLE II
THE LOAN
2.01. Loan. Subject to the terms and conditions hereof, and relying upon
the representations and warranties herein set forth, the Lenders agree to make
the Loan to the Borrower. The principal amount of the Loan outstanding at any
time shall not exceed the lesser of: (a) Seventy Million Dollars ($70,000,000),
or (b) the Borrowing Base (as the same may be adjusted as set forth below in
this Section 2.01). Unless otherwise extended by Lenders, the Lenders'
commitment to make Advances shall expire on the Maturity Date. The proceeds of
the Loan will be used solely for the acquisition and development by the
Borrower, as applicable, of
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Real Estate Assets and for working capital purposes as described herein. The
proceeds of the Loan will be advanced to the Borrower in accordance with and
subject to the requirements and limitations set forth herein. Advances of the
Loan will be made to Borrower for working capital purposes provided such
Advances shall not exceed Five Million Dollars ($5,000,000) at any one time. If
prior to the Maturity Date, the Borrower repays any Advance(s), or any portion
thereof, Loan proceeds in an amount equal to the amount of the repayment will
again be made available to the Borrower for Advances, subject to the terms and
conditions hereof.
In the event a Single Mortgaged Property Debt Service Coverage Ratio is
less than 1.25 to 1.00, the Borrowing Base shall be reduced to an amount
sufficient to support a 1.40 to 1.0 Single Mortgaged Property Debt Service
Coverage Ratio with respect to the subject Mortgaged Property until such time as
such Mortgaged Property achieves a 1.40 to 1.0 Single Mortgaged Property Debt
Service Coverage Ratio. By way of illustration, assume a Single Mortgaged
Property has (i) an Appraised Value of $1,000,000; (ii) an initial Borrowing
Base Value of $650,000 (65% of Appraised Value); (iii) an initial Single
Mortgaged Property Debt Service of $50,256 (assuming an interest rate of six
percent (6%) for this example); and (iv) single Mortgaged Property Net Operating
Income of $62,820 (or, 1.25 to 1.0 of the Single Mortgaged Property Debt Service
Ratio). If the Single Mortgaged Property Net Operating Income decreases to
$55,000 (a Single Mortgaged Property Debt Service Ratio below 1.25 to 1.0 using
a Borrowing Base Value of $650,000 and a debt constant of $50,256), then the
required Single Mortgaged Property Debt Service Ratio is adjusted to 1.4 to 1.0
Assuming net operating income to $55,000, then the Borrowing Base value for this
property is reduced to $508,070. At 1.40 to 1.0, net operating income of $55,000
supports a Single Mortgaged Property Debt Service of $39,285, which is a
Borrowing Base Value of $508,070 (at the assumed interest rate). The Single
Mortgaged Property Debt Service Ratio will remain at 1.40 to 1.0 until the
Borrowing Base Value for such property equals $650,000. Thereafter, the
Borrowing Base Value (subject to the 65%) limit) shall be calculated based on
the actual Single Mortgaged Property Debt Service unless and until the Single
Mortgaged Property Debt Service falls below 1.25 to 1.0 at which time the Single
Mortgaged Property Debt Service Ratio shall return to 1.4 to 1.0.
In the event of an occurrence of an event which has a Material Adverse
Effect upon a Special Purpose Entity and the same is not cured within sixty (60)
days after notice by Agent to Borrower, the Borrowing Base will be reduced by
sixty percent (60%) of the Appraised Value of the applicable Mortgaged Property.
2.02. Mortgaged Property Approval. With respect to a proposed Mortgaged
Property, Borrower shall submit the information required by Exhibit K to the
Agent and Agent shall deliver copies of such information to all of the Lenders,
and the Required Lenders shall have approved those materials identified in
Exhibit K attached hereto. In connection with the approval of a Mortgaged
Property, the Required Lenders may impose requirements with respect to the
proposed Mortgaged Property regarding disbursement of any Advance in addition to
those set forth herein. Such additional requirements will be set forth in the
Project Agreement to be executed by the Agent and the Borrower in respect of
such Mortgaged Property, which Project Agreement, when executed, shall be deemed
to be a modification and amendment of this Agreement.
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Each Lender hereby acknowledges and agrees that the information submitted
by Borrower to the Lenders, including the information identified on Exhibit K is
proprietary and confidential information of Borrower and shall be maintained in
confidence by the Lenders and used solely and exclusively for the purpose of
determining such Lender's consent to the inclusion of such Real Estate Asset as
a Mortgaged Property subject to disclosure to their respective auditors,
regulatory authorities and potential participants in the Loan.
2.03. Notes. The Loan and all Advances thereunder shall be evidenced by
the Borrower's receipts and the Notes.
2.04. Rate of Interest. During the term of the Loan, the unpaid principal
amount thereof shall, subject to the terms and conditions hereinafter set forth,
bear interest on a basis selected by the Borrower from the following interest
rate selections: (a) the Adjusted LIBOR Interest Rate; and (b) the Prime
Interest Rate.
Each Advance shall be made as either a Prime Advance or a LIBOR Advance,
as selected by the Borrower. The Borrower may have Prime Advances and LIBOR
Advances outstanding simultaneously; provided, however, the Borrower may not
have more than five (5) LIBOR Advances in existence at any time and each LIBOR
Advance must be in an amount which is greater than or equal to $1,000,000. The
Borrower may convert any Prime Advances aggregating at least $1,000,000 in
principal amount into a LIBOR Advance on the first day of a calendar month. At
the end of the LIBOR Interest Period applicable to a LIBOR Advance, the Borrower
may renew the LIBOR Advance or may convert the LIBOR Advance to a Prime Advance.
If the Borrower fails to renew any LIBOR Advance or if the Borrower shall
receive any new Advance without designating whether such Advance is a LIBOR
Advance or a Prime Advance, such Advance shall automatically be deemed to be a
Prime Advance. At any time that the Borrower desires a LIBOR Advance or intends
to renew a LIBOR Advance or convert a Prime Advance into a LIBOR Advance, the
Borrower must notify the Agent by a Notice of Pricing Election in the form
attached hereto as Exhibit L at least three (3) London Banking Days prior to the
day on which the Borrower desires such Advance, renewal or conversion to be
effective. The Borrower shall have no right to designate a new Advance as, or
convert an existing Prime Rate Advance to, a LIBOR Advance if an Event of
Default is then continuing. The Borrower shall have no right to select a LIBOR
Interest Period for a LIBOR Advance if such LIBOR Interest Period would extend
beyond the Maturity Date.
While and so long as no Event of Default is continuing, interest shall
accrue at the applicable Interest Rates upon the daily principal balance of the
Loan, based on a three hundred sixty (360) day year, for the actual number of
days elapsed since the date to which interest has been paid.
If a Lender shall determine, after the date hereof, that the adoption of
any applicable law, rule, regulation or guideline regarding capital adequacy, or
any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by such Lender
(or such Lender's lending office) with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or
17
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's capital (or on the capital of a Lender's holding company) as a
consequence of the Loan to a level below that such Lender (or such Lender's
holding company) could have achieved but for such adoption, change or compliance
(taking into consideration such Lender's policies or the policies of such
Lender's holding company with respect to capital adequacy) by an amount deemed
by such Lender to be material, then from time to time, within fifteen (15) days
after demand by such Lender, the Borrower shall either (a) pay to such Lender
such additional amount or amounts as will compensate such Lenders (or such
Lender's holding company) for such reduction, or (b) convert all LIBOR Advances
to a Prime Advance. If the Borrower elects the option provided in the foregoing
subparagraph (b), the Borrower shall not be subject to the requirement hereunder
that the Borrower reimburse such Lender for any loss, cost or expense incurred
by such Lender as a result of the Borrower paying a LIBOR Advance prior to the
end of the applicable LIBOR Interest Period, provided, however, thereafter the
Borrower may not elect for any Advances to be LIBOR Advances. A Lender will
designate a different lending office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment of
such Lender, be otherwise disadvantageous to such Lender. In determining such
amount, a Lender may use any reasonable averaging and attribution methods.
Failure on the part of a Lender to demand compensation for any reduction in
return on capital with respect to any period shall not constitute a waiver of
such Lender's rights to demand compensation for any reduction in return on
capital in such period or in any other period. The protection of this Section
shall be available to the Lenders regardless of any possible contention of the
invalidity of the law, regulation or other condition which shall have been
imposed.
2.05. Principal Payment of Advances. If not sooner paid, all Advances
shall be due and payable on the Maturity Date.
2.06. Interest Payments. The Borrower shall pay interest to the Agent at
the applicable Interest Rates on the outstanding principal balance of the Loan
on the first (1st) day of each calendar month while proceeds of the Loan remain
outstanding, commencing on the first (1st) day of the first (1st) calendar month
following the first Advance.
2.07. Principal Payments. Except as set forth herein, all payments of
principal shall be first applied to the reduction of Advances for working
capital purposes or as otherwise directed by Borrower. Upon the sale of a
Mortgaged Property, the Borrower shall pay to the Agent an amount equal to the
Mortgage Release Price payable in respect thereof, and such Mortgage Release
Price payment when received by the Agent, shall be applied in reduction of the
principal balance of the Loan. Notwithstanding the foregoing provisions, during
the continuance of an Event of Default, any Mortgage Release Price payment
received by the Agent may be applied, in the discretion of the Lenders, in
reduction of any accrued and unpaid interest on the Loan or any outstanding
Advance made pursuant to Section 5.01(c) hereof, so long as the Agent provides
to Borrower all documents necessary to release the Mortgaged Property being
sold.
At the request of the Agent, the Borrower will furnish to the Agent copies
of any closing statement, purchase agreement and similar documents relating to
the sale of a Mortgaged Property prior to the release by the Agent of the
security with respect to such Mortgaged Property.
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During the term of the Loan, upon the Agent's receipt of the Mortgage
Release Price with respect to a Mortgaged Property, the Agent will release the
applicable Mortgaged Property and all other security of the Lenders encumbering
such Mortgaged Property by the prompt delivery of appropriate documents duly
authorized and executed and in accordance with the law of the State in which the
Mortgaged Property is located to fully and completely release any security
interest of Lenders encumbering such Mortgaged Property.
Notwithstanding anything contained herein to the contrary, as a condition
to any release Borrower shall have satisfied the following conditions prior to
the Agent's release of a Mortgaged Property:
a. No Conditional Default or Event of Default shall exist;
b. Borrower shall have provided to Agent a proforma Borrowing Base
Certificate as of the end of the previous calendar month and a proforma
Compliance Certificate as of the end of the previous calendar quarter,
demonstrating Borrower's compliance with the terms of this Agreement after
giving effect to the release of such Mortgaged Property;
c. Borrower shall pay all costs and expenses reasonably incurred by
Agent in connection with the release of such Mortgaged Property.
2.08. Loan Prepayments. The Borrower may prepay the principal amount of
any Prime Advance in whole or in part from time to time without any prepayment
penalty. The Borrower may not prepay any LIBOR Advance before the expiration of
the LIBOR Interest Period applicable to such LIBOR Advance, except upon the
payment of the amount provided for below.
If any LIBOR Advance becomes due and payable or is prepaid prior to the
last day of the applicable LIBOR Interest Period (including any prepayment
resulting from the acceleration of the Loan by the Lenders as a consequence of
an Event of Default), the Borrower also promises to reimburse the Lenders on
demand for any resulting loss, cost, or expense incurred by the Lenders as a
result thereof including, without limitation, any loss incurred in obtaining,
liquidating, or employing deposits from third parties, but excluding the
Lenders' loss of margin for the period after any such payment. If, because of
the introduction of or any change in, or because of any judicial,
administrative, or other governmental interpretation of, any law or regulation,
there shall be any increase in the cost to the Lenders of making, funding,
maintaining, or allocating capital to LIBOR Advances, then from time to time,
within fifteen (15) days after demand by the Agent, the Borrower shall either
(a) pay to the Lenders additional amounts sufficient to compensate the Lenders
for such increased cost; or (b) convert all LIBOR Advances to a Prime Advance.
If the Borrower elects the option provided in the foregoing subparagraph (b),
the Borrower shall not be subject to the requirement hereunder that the Borrower
reimburse the Lenders for any loss, cost or expense incurred by the Lenders as a
result of the Borrower paying a LIBOR Advance prior to the end of the applicable
LIBOR Interest Period; provided, however, thereafter the Borrower may not elect
for any Advances to be LIBOR Advances. If, because of the introduction of or any
change in, or because of any judicial, administrative, or other governmental
interpretation of, any law or regulation, it becomes unlawful for the Lenders to
make, fund, or maintain any LIBOR
19
Advance, then the Lenders' obligation to make, fund, or maintain any LIBOR
Advance shall terminate.
2.09. Late Fee. If any sum of principal or interest in respect of the Loan
is not paid within five (5) days after the date when due, then, in addition to
and not in lieu of any other rights or remedies available to the Lenders, the
Borrower shall pay to the Lenders, on demand, a late fee in an amount equal to
the greater of five percent (5%) of such sum or Twenty-Five Dollars ($25.00),
but not to exceed Two Thousand Dollars ($2,000.00). In no event, however, shall
a late fee be payable under this Section 2.09 in respect of an Advance and the
interest thereon if the Borrower fails to pay such Advance and interest on the
Advance Maturity Date therefor or on the date on which such Advance and interest
are payable as a result of the acceleration of the Loan pursuant to the terms of
this Agreement.
2.10. Letter of Credit. Subject to the terms, provisions and conditions
hereof, up to One Million Dollars ($1,000,000) of the Loan shall be made
available to Borrower for the issuance of the Letter of Credit. The Letter of
Credit shall be irrevocable and shall have an expiration date not later than May
15, 2004. The amount of the Loan available to Borrower hereunder at any time
shall be reduced by the amount of the Letter of Credit issued under the Loan and
outstanding at such time. Any draw upon the Letter of Credit issued under the
Loan shall be evidenced by the Notes, shall bear interest at the Prime Rate,
shall be due and payable on demand and shall be secured by the Mortgage and
other Loan Documents. Borrower shall cause the Title Company to (i) issue a
Letter of Credit Endorsement to the Lenders' title policy referencing such
Letter of Credit, and (ii) amend the pending disbursement endorsement to include
the face amount of such Letter of Credit.
Borrower shall pay to Agent for the benefit of the Lenders a fee for
issuance of the Letter of Credit equal to 135 basis points per annum (computed
on the basis of a year of 360-days and the actual number of days of the stated
term of the Letter of Credit) of the aggregate stated amount of the Letter of
Credit. Such fee shall be payable in advance on the date of issuance of the
Letter of Credit. Borrower shall also pay to Agent when due all usual and
customary administrative fees associated with the issuance of the Letter of
Credit.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that as of the Closing
Date:
3.01. Organization and Qualification. The Borrower is a duly formed and
validly existing limited partnership under the laws of the Commonwealth of
Virginia. The Guarantor is a duly formed and validly existing real estate
investment trust under the laws of the State of Maryland.
3.02. Right and Power; Corporate Authority. The Borrower has full right,
power and authority to execute and deliver this Agreement and the other Loan
Documents and to perform its obligations thereunder. The Borrower has taken the
necessary corporate action to authorize
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the execution and delivery of the Agreement and the other Loan Documents and the
borrowings thereunder.
3.03. Conflict With Other Instruments. The execution and delivery of this
Agreement and the other Loan Documents, the consummation of the transactions
contemplated thereby, and the compliance with the terms, conditions and
provisions thereof will not conflict with or result in a breach of any of the
terms, conditions or provisions of the partnership agreement of the Borrower,
or, to the Borrower's actual knowledge, any law or any regulation, order, writ,
injunction or decree of any court or Governmental Authority or any agreement or
instrument to which the Borrower is a party or by which the Borrower or its
properties or assets are subject to or bound, or constitute a default thereunder
or result in the creation or imposition of any lien, charge, security interest
or encumbrance of any nature whatsoever upon any of the property of the Borrower
pursuant to the terms of any such agreement or instrument, except as created by
the Loan Documents.
3.04. Authority, Validity and Binding Effect. The execution and delivery
of this Agreement and the other Loan Documents, and the making of the borrowings
contemplated by the provisions hereof and thereof, have been duly authorized by
all necessary action on the part of the Borrower, and no authorization, approval
or consent by, or filing with, any Governmental Authority or public regulatory
authority is necessary therefor except for disclosures as required with the
Securities and Exchange Commission. This Agreement and the other Loan Documents
have been duly and validly executed and delivered by the Borrower and constitute
a legal, valid and binding obligation of the Borrower, enforceable in accordance
with their terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency or other laws of general application affecting the
enforcement of creditors' rights generally and by principles of equity.
3.05. Financial Condition. The financial statements of the Borrower and
the Guarantor furnished to the Lenders are complete and correct in all material
respects. Such financial statements were prepared in accordance with GAAP
consistently applied. The financial statements of the Borrower and the Guarantor
fairly present their respective financial condition at the respective dates
indicated therein. Since the dates of such financial statements, there has been
no material adverse change in the assets, liabilities or financial condition of
the Borrower and the Guarantor from that reflected thereon.
3.06. Litigation. There are no actions, suits or proceedings pending or,
to the Borrower's actual knowledge, threatened, against or affecting the
Borrower, a Special Purpose Entity or the Guarantor before any court or
Governmental Authority which might have a Material Adverse Effect.
3.07. ERISA. The Borrower and each ERISA Affiliate is in compliance in all
material respects with all applicable provisions of ERISA, and neither the
Borrower nor any ERISA Affiliate has incurred any liability to the PBGC. Neither
a Reportable Event nor a Prohibited Transaction, has occurred under, nor has
there occurred any complete or partial withdrawal from, nor has there occurred
any other event which would constitute grounds for termination of or the
appointment of a trustee to administer any "employee benefit plan" (including
any "multi-
21
employer plan") maintained for employees of Borrower or any ERISA Affiliate, all
within the meanings ascribed by ERISA.
3.08. Regulation U. The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U) and the Borrower does not hold any margin stock (as
defined in Regulation U).
3.09. Investment Company Act. Neither the Borrower nor the Guarantor is an
"investment company" or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended.
3.10. Public Utility Holding Company. Neither the Borrower nor the
Guarantor 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.
3.11. Insolvency. Neither the Borrower, a Special Purpose Entity nor the
Guarantor is "insolvent" within the meaning of that term as defined in the
Federal Bankruptcy Code and the Borrower and the Guarantor are each able to pay
their debts as they mature.
3.12. Organization and Qualification. To the extent required by
Governmental Requirement, the Borrower and each Special Purpose Entity is duly
qualified to conduct business in the state in which the Mortgaged Property is
located.
3.13. Right and Power; Corporate Authority. The Borrower and each Special
Purpose Entity has full right, power and authority to execute and deliver the
Loan Documents contemplated by the provisions hereof for such Advance and to
perform its obligation thereunder. The Borrower has taken the necessary
corporate action to authorize the execution and deliver of such Loan Documents.
3.14. Conflict With Other Instruments. The execution and delivery of the
Loan Documents contemplated by the provisions hereof for such Advance, the
consummation of the transactions contemplated thereby, and the compliance with
the terms, conditions and provisions thereof will not conflict with or result in
a breach of any of the terms, conditions or provisions of the limited
partnership agreement of the Borrower and the operating agreement of each
Special Purpose Entity, or, to the Borrower's actual knowledge, any law or any
regulation, order, writ, injunction or decree of any court or Governmental
Authority or any agreement or instrument (except to the extent required under
ground leases applicable to future Mortgaged Properties) to which the Borrower
and each Special Purpose Entity is a party or by which the Borrower and each
Special Purpose Entity or their properties or assets are subject to or bound, or
constitute a default thereunder or result in the creation or imposition of any
lien, charge, security interest or encumbrance of any nature whatsoever upon the
Mortgaged Properties or any other property of the Borrower and each Special
Purpose Entity pursuant to the terms of any such agreement or instrument, except
as created by the Loan Documents.
The execution and delivery of the Guaranty, the Guarantor's guarantee
contemplated thereby, and the compliance with the terms, conditions and
provisions thereof will not conflict
22
with or result in a breach of any of the terms, conditions or provisions of the
trust agreement of the Guarantor, or, to the Guarantor's actual knowledge, any
law or any regulation, order, writ, injunction or decree of any court or
Governmental Authority or any agreement or instrument to which the Guarantor is
a party or by which the Guarantor or its properties or assets are subject to or
bound.
3.15. Authority, Validity and Binding Effect. The execution and delivery
of the Loan Documents contemplated by the provisions hereof for such Advance,
have been duly authorized by all necessary action on the part of the Borrower
and each Special Purpose Entity, and no authorization, approval or consent by,
or filing with, any Governmental Authority or public regulatory authority is
necessary therefor. Such Loan Documents have been duly and validly executed and
delivered by the Borrower and each Special Purpose Entity and constitute legal,
valid and binding obligations of the Borrower and each Special Purpose Entity,
enforceable in accordance with their terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency or other laws of general application
affecting the enforcement of creditors' rights generally and by principles of
equity.
3.16. Litigation. There are no actions, suits or proceedings pending or,
to the Borrower's actual knowledge, threatened, against or affecting the
Mortgaged Properties before any court or Governmental Authority which might have
a Material Adverse Effect.
3.17. Compliance With Governmental Requirements. To Borrower's knowledge,
the intended use of the Mortgaged Properties complies in all material respects
with all applicable Governmental Requirements, as the same may be modified by
any applicable variances and exceptions, to Borrower's knowledge, and all
material provisions of any applicable restrictive covenants, and to Borrower's
knowledge, the Borrower has obtained all material required permits with respect
to the operation and use of such Mortgaged Properties.
3.18. Utility Services. To Borrower's knowledge, all utility services
necessary for the use and operation of the Mortgaged Property for such Mortgaged
Property are available at the boundaries of the Mortgaged Property and are
located within a public right of way adjacent to the Mortgaged Property or
within an easement benefiting the Mortgaged Property, which easement is
contiguous to the Mortgaged Property and a public right of way, and, to the
actual knowledge of Borrower, such utilities have sufficient capacity to serve
such Mortgaged Property.
3.19. Hazardous Materials; Storage Containers; Wetlands. The Borrower and
each Special Purpose Entity have not used Hazardous Materials on, from or
affecting the Mortgaged Property in any manner which violates any Governmental
Requirements or Hazardous Materials Laws, and, to the best of the Borrower's
knowledge, except as disclosed in any written reports and data provided to the
Lenders, no prior owner of such Mortgaged Property or prior occupant thereof,
has used Hazardous Materials on, from or affecting the Mortgaged Property in any
manner which violates any Governmental Requirements or Hazardous Materials Laws.
The Borrower further represents to the Lenders that, except as disclosed in any
written reports and data provided to the Lenders, the Borrower and each Special
Purpose Entity have not received any notice of any violations of Governmental
Requirements or Hazardous Materials Laws governing the use, storage, treatment,
transportation, manufacture, refinement, handling,
23
production or disposal of Hazardous Materials at such Mortgaged Property and, to
the best of the Borrower's knowledge, there have been no actions commenced or
threatened by any party for non-compliance with any such laws or regulations at
such Mortgaged Property. The Borrower further represents that, except as
disclosed in any written reports and data provided to the Lenders, no Storage
Containers are located on or under such Mortgaged Property, except in compliance
with all applicable Hazardous Materials Laws, and such Mortgaged Property does
not contain any Wetlands.
3.20. Covenants and Restrictions. Except as disclosed in writing to Agent
or in any Title Policy delivered to Agent hereunder, there are no covenants,
conditions or restrictions of record or of which the Borrower has knowledge that
prohibit the Mortgaged Property from being used and operated as contemplated by
the Lease for such Mortgaged Property.
3.21. Flood Hazard. To Borrower's knowledge, except as may be disclosed in
any survey or flood hazard certificate provided to Agent, no part of the
Improvements forming a part of the Mortgaged Property are located in or on an
"area having special flood hazards" ("Special Flood Hazard Area"), as that term
is defined in the Flood Disaster Protection Act of 1973, as amended by the 1994
National Flood Insurance Reform Act, and as otherwise amended. If such
Improvements (or any portion thereof) are located in a Special Flood Hazard
Area, to Borrower's knowledge, the building floor elevations of such
Improvements are located at the height prescribed (if any) by Governmental
Requirements above the designated flood plain elevation for the Special Flood
Hazard Area, as determined by FEMA. For purposes of this Paragraph 3.21, the
defined term Improvements shall include only walled and roofed buildings.
The representations and warranties contained above and in the other Loan
Documents shall be true on and as of the date of each Advance with the same
effect as though such representations and warranties had been made on and as of
each such date.
ARTICLE IV
CONDITIONS OF LENDING
The Borrower agrees that the obligation of the Lenders to make an Advance
is subject to the accuracy in all material respects, as of the date hereof and
the date of such Advance of the representations and warranties contained herein
and under the other Loan Document, to performance by the Borrower of its
agreements to be performed hereunder and under the other Loan Document on or
before the date of such Advance, and to the satisfaction of the following
further conditions:
4.01. Initial Advance. Prior to the initial Advance by the Lenders:
a. Organizational Documents. There shall have been furnished to the
Agent by the Borrower:
i. A copy of the certificate of limited partnership of the
Borrower, together with any and all amendments thereto, filed with
the appropriate Governmental Authorities of the Commonwealth of
Virginia;
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ii. A copy of the limited partnership agreement of the
Borrower, together with any and all amendments thereto certified by
the Guarantor, as the general partner of Borrower;
iii. An original or a copy of a Certificate of Existence for
the Borrower issued by the appropriate Governmental Authorities of
the Commonwealth of Virginia bearing a recent date;
iv. A copy of the resolutions of the Borrower authorizing the
Loan and the execution of this Agreement and the Loan Documents
certified by the Guarantor, as the general partner of Borrower;
v. A copy of the articles of organization of each Special
Purpose Entity, together with any and all amendments thereto, filed
with the appropriate Governmental Authorities of the state in which
the Special Purpose Entity is organized;
vi. A copy of the operating agreement of each Special Purpose
Entity, together with any and all amendments thereto, certified by
the Borrower;
vii. An original or copy of a Certificate of Existence for
each Special Purpose Entity issued by the appropriate Governmental
Authorities for the state in which the Special Purpose Entity is
organized;
viii. A copy of the trust agreement for the Guarantor,
together with any and all amendments thereto, certified by the
Secretary thereof;
ix. A copy of the resolutions of the Guarantor authorizing the
Guaranty, certified by the Secretary of Guarantor; and
x. An original or a copy of a Certificate of Existence for the
Guarantor issued by the appropriate Governmental Authorities of the
State of Maryland.
b. Borrower's Counsel Opinion. The Borrower shall furnish to the
Lenders an opinion of counsel for the Borrower, the Guarantor and the
Special Purpose Entities in form and substance reasonably acceptable to
the Lenders.
c. Notes/Loan Documents. The Borrower shall have executed and
delivered to the Lenders the Notes and the applicable Loan Documents with
blanks appropriately completed.
d. Guaranty. The Guarantor shall have executed and delivered to the
Agent the Guaranty.
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e. Commitment Fee. The Borrower shall have paid to the Agent, for
the benefit of the Lenders in accordance with their respective
Commitments, the Commitment Fee. The Commitment Fee shall be paid on
December 31, 2003.
4.02. Mortgaged Properties. With respect to each of the Mortgaged
Properties, the Borrower shall have satisfied each of the following conditions:
a. Organizational Documents. There shall have been furnished to the
Agent by the Borrower:
i. A certificate of the Borrower, certifying that no
amendments or modifications have been made to the limited
partnership agreement of the Borrower furnished to the Agent
pursuant to Section 4.01(a) hereof, other than such amendments or
modifications as have been furnished to the Agent pursuant to
Section 6.12 hereof.
ii. An original or copy of a Certificate of Existence for the
Borrower and each Special Purpose Entity issued by the Secretary of
State of Virginia or the state in which a Special Purpose Entity is
organized, as applicable, bearing a recent date;
iii. To the extent required by Governmental Requirement, an
original or copy of a Certificate of Authority for the Borrower, if
applicable, and each Special Purpose Entity as a foreign limited
liability company doing business in the state in which the Mortgaged
Property is located;
iv. A copy of the resolutions of Borrower authorizing the
Advance and the execution of the Loan Documents contemplated by the
provisions hereof for such Advance;
v. A certificate of the Guarantor certifying that no
amendments or modifications have been made to the trust agreement of
the Guarantor furnished to the Lenders pursuant to Section 4.01(ix)
hereof;
vi. An original or copy of a Certificate of Existence for the
Guarantor issued by the Secretary of State of Maryland bearing a
recent date; and
vii. A copy of the resolutions of the Guarantor authorizing
such Advance or for all Advances made pursuant to this Agreement.
b. Borrower's Counsel Opinion. The Borrower shall furnish to the Lenders
the opinions of counsel for the Borrower, each Special Purpose Entity and the
Guarantor in form and substance reasonably acceptable to the Lenders.
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c. Project Agreement. The Agent, the Borrower and each Special Purpose
Entity shall have entered into a satisfactory Project Agreement with respect to
a Mortgaged Property.
d. Security Documents. There shall have been executed and delivered to the
Agent the following security documents with respect to such Mortgaged Property:
i. a Mortgage which shall constitute a first mortgage or deed of
trust lien, as applicable, on the Borrower's and each Special Purpose
Entity's fee simple interest in such Mortgaged Property or Borrower's or a
Special Purpose Entity's interest in the ground lease (which ground lease
shall be in form and substance acceptable to the Lenders and which ground
lease shall have no less than 35 years remaining on its lease term and the
lessor thereunder shall provide Lenders with an estoppel letter containing
lender protection provisions acceptable to Lenders);
ii. an Assignment of Rents and Leases pursuant to which the Borrower
shall have collaterally assigned to the Lenders all the right, title and
interest of the Borrower and each Special Purpose Entity as landlord in
and to all existing and future leases of space in such Mortgaged Property,
including, without limitation, the Lease for such Mortgaged Property, and
all rentals and other monies due and to become due under said leases;
iii. an Assignment pursuant to which the Borrower and each Special
Purpose Entity shall have collaterally assigned to the Lenders all the
right, title and interest of the Borrower and each Special Purpose Entity
in and to the material permits, licenses, warranties and other agreements
in respect of such Mortgaged Property;
iv. If the Borrower or a Special Purpose Entity has then entered
into a Mortgaged Property Sale Agreement for such Mortgaged Property, a
Collateral Assignment of Mortgaged Property Sale Agreement pursuant to
which the Borrower and a Special Purpose Entity shall have collaterally
assigned to the Lenders all the right, title and interest of the Borrower
and a Special Purpose Entity in, to and under such Mortgaged Property Sale
Agreement and the Deposit made thereunder; and
Each of the above-described collateral documents shall be properly
completed and reflect only such further changes as may be necessary to comply
with the requirements of the jurisdiction in which such Mortgaged Property is
located.
e. Borrower's Affidavit. The Borrower and the applicable Special Purpose
Entity shall have furnished to the Lenders an executed Borrower's Affidavit with
respect to such Mortgaged Property.
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f. Environmental Indemnity. The Borrower, the applicable Special Purpose
Entity and the Guarantor shall have furnished to the Lenders an executed
Environmental Indemnity Agreement with respect to such Mortgaged Property.
g. Title Policy. A Title Company shall have issued and delivered to the
Agent a policy of title insurance acceptable to the Lenders insuring the
priority of the lien of the Mortgage encumbering such Mortgaged Property in an
amount of not less than the purchase price paid by Borrower or the applicable
Special Purpose Entity for the purchase of the Mortgaged Property. The Title
Policy shall have an effective date of no earlier than the date of such Advance,
shall provide extended coverage (i.e., all preprinted or standard exceptions
shall be deleted), a 3.1 zoning endorsement (if such endorsement is selected by
the Borrower pursuant to Section 4.01(j)(i) hereof to evidence proper zoning of
the Mortgaged Property), an access endorsement, a comprehensive endorsement, a
subdivision endorsement (where necessary), a last dollar endorsement, a
contiguity endorsement (if needed), a revolving credit endorsement and
affirmative coverage with respect to filed or unfiled mechanic's lien (where
available at reasonable cost) and shall be subject only to such exceptions as
may be reasonably approved by the Agent.
h. Survey. The Borrower shall have furnished to the Agent an Urban Class
ALTA/ACSM Minimum Standard Detail Survey (including Items 1,3,4,6,7,8,9,10,11
and 13 of Table A thereof or such provisions thereof as are acceptable to Agent)
of the Mortgaged Property, made by a registered engineer or surveyor licensed by
the state in which such Mortgaged Property is located and reasonably
satisfactory to the Agent and the Title Company and certified to each of them as
of a date not more than sixty (60) days prior to the date of the Advance made in
respect of such Mortgaged Property the boundaries of such Mortgaged Property,
the actual location of the Improvements located on such Mortgaged Property, all
building setback lines, easements, rights of way and encroachments affecting
such Mortgaged Property and other matters apparent thereon and the relation of
such Mortgaged Property to public thoroughfares for access purposes, certifying
that the Improvements (excluding Improvements that are not walled and roofed
buildings) located on the Mortgaged Property are not located within a special
flood hazard area as defined by the Flood Disaster Protection Act of 1973, and
showing the number of the Flood Insurance Rate Map on which such Mortgaged
Property is shown and the date of such map, and shall specify the flood hazard
zone in which such Mortgaged Property is situated. Such survey shall be
reasonably acceptable to the Agent and shall not disclose, in the Agent's
reasonable opinion, any facts or circumstances which materially affect or could
materially affect the marketability of such Mortgaged Property or the Borrower's
ability to sell or finance such Mortgaged Property;
i. Approvals and Permits. The Borrower shall submit to the Agent evidence
reasonably satisfactory to the Agent to the effect that:
i. The Mortgaged Property is presently zoned to permit its use and
operation as contemplated by the Borrower or the applicable Special
Purpose Entity for such Mortgaged Property, which evidence may
28
be a 3.1 zoning endorsement issued by the Title Company or a satisfactory
opinion of counsel admitted to practice in the state in which such
Mortgaged Property is located or a zoning confirmation letter of the
Governmental Authority having zoning jurisdiction over such Mortgaged
Property;
ii. The Borrower has obtained such access easements and utility
easements, if any, as may be reasonably necessary for the contemplated use
of such Mortgaged Property and such easements are insured under the Title
Policy;
iii. All required permits, licenses and approvals for the use and
operation of such Mortgaged Property (including a permanent occupancy
permit or a certificate of occupancy, if issued by the jurisdiction in
which such Mortgaged Property is located) have been obtained from the
applicable Governmental Authorities; and
iv. All utility services necessary for the operation of such
Mortgaged Property are available at the boundaries of the Mortgaged
Property and are located within a public right of way adjacent to the
Mortgaged Property or within an easement benefiting the Mortgaged
Property, which easement is contiguous to the Mortgaged Property and a
public right of way, and all such utilities have the capacity necessary to
provide service to such Mortgaged Property.
j. Insurance. The Borrower shall have furnished to the Agent the insurance
required by the Mortgage encumbering such Mortgaged Property, together with
evidence of payment in full of the premiums thereon.
k. Plans and Specifications. To the extent the same are in the Borrower's
or its agent's possession, the Borrower shall have furnished to the Agent for
its review and reasonable approval the Plans and Specifications for such
Mortgaged Property.
l. Appraisal. The Agent shall have received a written appraisal in a form
acceptable to Lenders. The appraiser providing a Mortgaged Property appraisal
will be selected and directly engaged by the Agent. The cost of a Mortgaged
Property appraisal, and any update thereof as provided below, will be charged to
the Borrower and paid by the Borrower upon the Borrower's receipt of an invoice
therefor; provided, however, Borrower shall be responsible for the costs of no
more than one (1) appraisal or update per year with respect to a Mortgaged
Property, except in the case of a foreclosure. Each Mortgaged Property appraisal
shall be prepared in accordance with the Uniform Standards of Professional
Appraisal Practice applicable to Federally Related Transactions as set out in
Appendix A to the real estate appraisal regulations adopted by the Office of the
Comptroller of the Currency pursuant to the Financial Institutions Reform,
Recovery and Enforcement Act of 1989 (Sub-part C of 12 C.F.R. 34) and shall be
prepared in response to an engagement letter to be issued by the Agent. Agent
shall be entitled to
29
order an update to any Mortgaged Property if Agent reasonably determines in good
faith that a Material Adverse Effect has occurred or is required to do so under
applicable banking regulations. Any new Mortgaged Property appraisal or update
to an existing Mortgaged Property appraisal needs to be approved by the Required
Lenders prior to any change in the appraised value of a Mortgaged Property.
m. Inspecting Architect's Report. If requested by the Agent, the Lenders
shall have received a satisfactory report of an Inspecting Architect for such
Mortgaged Property.
n. Environmental Report. The Borrower shall have furnished to the Agent a
copy of an environmental report by an environmental consulting company
reasonably acceptable to the Agent (the "Environmental Report") showing that the
environmental condition of such Mortgaged Property is reasonably acceptable to
the Agent. The Environmental Report shall be addressed to the Lenders, or, in
the alternative, the Borrower shall provide to the Agent a letter of the
consulting company that prepared the Environmental Report pursuant to which such
consulting company authorizes the Lenders to rely on the Environmental Report.
o. Major Lease. In the event a Mortgaged Property is subject to a Major
Lease to one Tenant, the Borrower shall have furnished to the Agent an executed
Lease for such Mortgaged Property which shall have a remaining term (excluding
optional extension or renewal periods) acceptable to the Lenders and shall be in
a form and content reasonably acceptable to the Lenders in all other respects,
including rental amounts payable thereunder. Such Lease or a separate document
from the Tenant which is party thereto shall include the agreement of such
Tenant to subordinate its interest thereunder to any first mortgage or deed of
trust on such Mortgaged Property upon the request of the mortgagee or the
beneficiary thereunder (a "Mortgagee") and to attorn to such Mortgagee or any
purchaser of such Mortgaged Property at a foreclosure sale or a sale made under
any power of sale or pursuant to a deed in lieu of foreclosure, provided such
mortgagee agrees to reasonable non-disturbance provisions if the Tenant under
such Lease is not in default beyond any applicable cure period thereunder.
The Borrower shall use reasonable efforts to attempt to obtain the
following provisions in such Major Lease or separate document:
i. The Major Tenant party thereto shall agree to give a Mortgagee by
registered or certified mail, a copy of any notice of default served upon
the landlord, provided that prior to such notice of default such Major
Tenant has been notified in writing, of the existence of such mortgage or
deed of trust and the address of such Mortgagee;
ii. A Mortgagee shall have sixty (60) days after its receipt from
such Major Tenant of written notice of a default by the landlord under
such Major Lease to correct or cure such default; and
30
iii. Such Major Tenant shall comply with all Hazardous Materials
Laws, and shall not store any Hazardous Materials in, on or under such
Mortgaged Property, except in accordance with applicable laws and
regulations.
p. Subordination, Non-Disturbance and Attornment Agreement. The Borrower
and each Special Purpose Entity shall have furnished to the Agent a
Subordination, Non-Disturbance and Attornment Agreement for such Mortgaged
Property, executed by the Borrower or the Special Purpose Entity, the Agent and
Tenants leasing in the aggregate Eighty-Five Percent (85%) of the gross rentable
square feet of such Mortgaged Property.
q. Damage. Such Mortgaged Property shall not have been materially injured
or damaged by fire or other casualty.
r. Tenant Estoppel. The Borrower shall have furnished to the Agent a
tenant estoppel letter in respect of such Mortgaged Property executed by the
Tenants leasing in the aggregate Eighty-Five Percent (85%) of the gross rentable
square feet of such Mortgaged Property in a form which is reasonably
satisfactory to the Agent and such Tenant, stating that the Lease is in full
force and effect, that landlord is not in default and that Tenant is not aware
of any amounts it could setoff against rent and including such other statements
as are reasonably required by the Agent.
s. Purchase Agreement for Acquisition of Mortgaged Property. The Borrower
shall have furnished to the Agent a copy of the executed purchase agreement
pursuant to which the Borrower has acquired or will acquire such Mortgaged
Property and a copy of the closing statement therefor.
t. Special Flood Hazard Area. If the Improvements (or any portion thereof)
forming a part of such Mortgaged Property (excluding Improvements that are not
walled and roofed buildings) are located in an Special Flood Hazard Area:
i. The Borrower shall have furnished evidence satisfactory to the
Agent that the building floor elevations of such Improvements are located
at the height (if any) prescribed by Governmental Requirements above the
designated flood plain elevation for the Special Flood Hazard Area, as
determined by FEMA; and
ii. The Borrower shall have provided to the Agent either: (A) the
flood insurance required by the Mortgage encumbering such Mortgaged
Property, together with evidence of payment in full of the premium
thereon, or (B) a copy of a Letter of Map Revision ("LOMR") issued by
FEMA, removing such Mortgaged Property from the Special Flood Hazard Area
as determined by FEMA.
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4.03. Working Capital Advances. With respect to Advance of the Loan for
Borrower's working capital purpose, such Advances will be made by the Lenders to
Borrower upon application by Borrower which application shall state the intended
use of such Advances.
4.04. Subsequent Advances. Prior to any Advance:
a. Representations and Warranties. The representations and
warranties contained herein and in the other Loan Documents shall be true
in all material respects on and as of the date each Advance with the same
effect as though such representations and warranties had been made on and
as of each such date.
b. Conditional Default/Event of Default. No Event of Default or
Conditional Default shall have occurred and be continuing or shall exist.
c. Conditions in 4.01. All of the conditions set forth in Section
4.01 hereof shall remain satisfied.
4.05. Proceedings and Documents. All legal details and proceedings in
connection with the transactions contemplated by this Agreement with respect to
a Mortgaged Property shall be in form and substance reasonably satisfactory to
counsel for the Agent, and the Agent shall have received all such counterpart
originals or certified or other copies of such documents and proceedings in
connection with such Mortgaged Property, in form and substance, as to
certification and otherwise, reasonably satisfactory to such counsel, as the
Agent or its counsel may request.
ARTICLE V
DISBURSEMENTS
5.01. Advances. Subject to the terms and conditions hereof, and relying
upon the representations and warranties herein set forth, the Lenders agree to
make Advances to the Borrower in accordance with, and subject to the following
requirements and limitations:
a. Requests for Loan Advances. Not less than five (5) business days
prior to the making of an Advance, the Borrower shall submit to the Agent
a Disbursement Request in such form as the Agent may require setting forth
the total amount of the Advance which is requested. Each Disbursement
Request and each receipt of the Advance requested thereby shall constitute
a certification by the Borrower that the representations and warranties
contained in Article III hereof are true and correct on the date of such
Disbursement Request or such receipt, as the case may be.
b. Borrowing Limitations. In no event shall the outstanding
principal balance of the Loan exceed the Borrowing Base.
c. Advances to Cure Defaults; etc. Notwithstanding the foregoing
provisions of this Section 5.01, and without receiving Requests for
Advances for such Advances, the Lenders may at any time or from time to
time (i) make Advances to cure any Event of Default or Conditional
Default, (ii) make Advances to pay interest on the Loan, (iii) make
32
Advances to pay the reasonable fees and expenses of counsel for the Agent;
and (iv) make Advances to pay the reasonable fees and expenses payable to
a Title Company for the issuance of a Title Policy. Any Advances made
pursuant to this subparagraph (c) shall be evidenced by the Notes, as
fully as if made to the Borrower, and shall be paid by the Borrower upon
demand by the Agent. The Agent shall provide written notice to the
Borrower of each Advance made under this subparagraph (c).
ARTICLE VI
BORROWER'S AFFIRMATIVE COVENANTS
The Borrower covenants that until payment in full of the Loan and
performance of all of the Borrower's other obligations under the Loan Documents:
6.01. Financial Statements. The Borrower will deliver or cause to be
delivered to the Agent:
a. As soon as practicable, but in any event within ninety (90) days
after the close of each fiscal year of Guarantor, audited financial
statements of Guarantor, prepared by a nationally recognized certified
public accounting firm on a consolidated and consolidating basis for
itself and its Subsidiaries, including a balance sheet, statement of
income and retained earnings and a statement of cash flows.
b. As soon as practicable, but in any event within ninety (90) days
after the close of each fiscal year of Borrower, audited financial
statements of Borrower, prepared by a nationally recognized certified
public accounting firm on a consolidated and consolidating basis for
itself and its Subsidiaries, including a balance sheet, statement of
income and retained earnings and a statement of cash flows.
c. Within ten (10) days after the same are filed, copies of all
reports filed by Guarantor with the Securities and Exchange Commission.
d. Five (5) days prior to each Advance, a Borrowing Base Certificate
(as of the end of the last calendar month).
e. As soon as practicable, but in any event within thirty (30) days
after the end of each fiscal quarter of the Borrower, certified rent rolls
and operating statements for each of the Mortgaged Properties, together
with a Compliance Certificate.
f. Within ninety (90) days after the end of each fiscal year,
projected income statements and balance sheets for Borrower and Guarantor.
g. As soon as possible, but in any event within ten (10) Business
Days after the Borrower becomes aware thereof, a written statement signed
by the chief executive officer or the chief financial officer of the
Borrower describing any Reportable Event or Prohibited Transaction which
has occurred with respect to any Plan and the action which the Borrower
proposes to take with respect thereto; and
33
h. The Borrower will with reasonable promptness furnish to the Agent
such additional financial and other information respecting the financial
condition, business or operations of the Borrower as the Agent may from
time to time reasonably request.
All such financial statements shall be prepared in accordance with GAAP
applied on a basis consistent with prior practice unless otherwise specifically
noted thereon.
6.02. Notices. The Borrower will promptly give the Agent written notice
of:
a. the occurrence or existence of any Event of Default of which the
Borrower has actual knowledge, together with a written statement of the
action being taken by the Borrower to remedy such Event of Default;
b. all litigation or proceedings before any court or Governmental
Authority affecting the Borrower or its properties that the Borrower
reasonably determines may have a Material Adverse Effect or that affects
the use or operation of a Mortgaged Property; and
c. any claims against any collateral given by Borrower or Guarantor
to secure the Loan.
6.03. Access to Books and Inspection. The Borrower will give any officer
or representative of the Agent access to, and permit such representative to
examine, copy or make extracts from, any and all books, records and documents in
the possession of the Borrower relating to the Mortgaged Properties financed
with proceeds of the Loan and to inspect such Mortgaged Properties (provided
such inspections shall not interfere with a Tenant's use of a Mortgaged
Property), all at such reasonable times and as often as the Agent may reasonably
request; provided, however, that the Agent shall have no obligation to make any
such inspections nor have any responsibility to the Borrower or any person, firm
or corporation for any defects or deficiency which may be or which would have
been revealed by any such inspection, whether or not discovered by the Agent.
6.04. Governmental Requirements. The Borrower will comply with all
material Governmental Requirements (including ERISA) and all material terms of
restrictive covenants applicable to the each Mortgaged Property in respect of
which Advances have been made and are outstanding.
6.05. Maintenance. The Borrower will maintain each Mortgaged Property in
good repair and safe condition at all times and indemnify and defend and hold
the Lenders harmless from any and all claims relative to the use and occupancy
of each Mortgaged Property.
6.06. Insurance. The Borrower will maintain such insurance on each
Mortgaged Property in amounts set forth in the Mortgage for such Mortgaged
Property.
6.07. Further Assurances. The Borrower will execute, acknowledge when
appropriate, and deliver from time to time at the request of the Agent, such
instruments and documents as in
34
the reasonable opinion of the Agent are necessary or desirable to perfect the
security interests required herein.
6.08. Failure to Perform. If the Borrower neglects or refuses to pay the
costs, premiums, liabilities or other charges incurred in connection with the
Loan or otherwise fails to perform its covenants hereunder, the Lenders may do
so and may add the cost thereof to the Loan as indebtedness evidenced by the
Notes, and may collect the same from the Borrower upon demand with interest
thereon at the highest Default Rate until paid thereunder.
6.09. Environmental. The Borrower covenants and agrees to keep or cause
each Mortgaged Property to be kept free of Hazardous Materials in violation of
any Governmental Requirement and, without limiting the foregoing, the Borrower
and each Special Purpose Entity shall not cause or permit any such Mortgaged
Property to be used to generate, manufacture, refine, transport, treat, store,
handle, dispose of, transfer, produce or process Hazardous Materials, except in
compliance with all applicable Governmental Requirements, nor shall the Borrower
and each Special Purpose Entity cause or permit, as a result of any intentional
or unintentional act or omission on the part of the Borrower and each Special
Purpose Entity or any tenant, subtenant or occupant, a release of Hazardous
Materials in violation of any Governmental Requirement onto any such Mortgaged
Property or onto any other property.
If Hazardous Materials are present at a Mortgaged Property in violation of
the requirements of this Section 6.09, the Borrower shall immediately notify
Agent and:
a. conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions necessary to clean up
and remove all Hazardous Materials on, under or from such Mortgaged
Property in accordance with all applicable federal, state and local laws,
ordinances, rules, regulations and policies (including, without
limitation, Hazardous Materials Laws), to the reasonable satisfaction of
the Agent, and in accordance with the orders and directives of all
Governmental Authorities;
b. defend, indemnify and hold harmless the Lenders, their employees,
agents, officers and directors (the "Indemnified Parties") from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs or expenses of whatever kind or nature, known or unknown,
contingent or otherwise, arising out of or in any way related to any of
the following ("Environmental Losses"):
i. the presence, disposal, release or threatened release of
any Hazardous Materials on, over, under, from or affecting such
Mortgaged Property or the soil, water, vegetation, buildings,
personal property, persons or animals thereon;
ii. any personal injury (including wrongful death) or property
damage (real or personal) arising out of or related to such
Hazardous Materials;
iii. any lawsuit brought or threatened, settlement reached or
government order relating to such Hazardous Materials; and/or
35
iv. any violation of laws, orders, regulations, requirements
or demands of Governmental Authorities, which are based upon or in
any way related to such Hazardous Materials, including, without
limitation, attorney's and consultant's fees, investigation and
laboratory fees, court costs and litigation expenses.
Notwithstanding any provision hereof, the Borrower does not indemnify the
Indemnified Parties against any Environmental Losses (i) caused by any
Indemnified Party, (ii) arising from the breach, violation or threatened
violation of any applicable Hazardous Materials Laws which first occurs after
the Indemnified Parties take actual possession of a Mortgaged Property pursuant
to a foreclosure of the Mortgage encumbering the same or pursuant to a transfer
pursuant to a power of sale or deed in lieu of foreclosure thereof; or (iii) any
release, discharge, disposal or presence of Hazardous Materials caused by a
receiver of a Mortgaged Property or which first occurs while a receiver is in
possession of such Mortgaged Property.
6.10. Personal Property. Borrower and each Special Purpose Entity shall
maintain all Personal Property and Fixtures incorporated into a Mortgaged
Property in accordance with the terms of the Mortgage encumbering such Mortgaged
Property.
6.11. Financing Statements. The Borrower hereby authorizes the Agent to
execute one or more financing statements and renewals and amendments thereof
pursuant to the Uniform Commercial Code of the State of Virginia and the state
in which each Special Purpose Entity is organized and the state in which a
Mortgaged Property is located in form satisfactory to the Agent, and will pay
the cost of filing the same in all public offices wherever filing is deemed by
the Agent to be necessary or desirable.
6.12. Organizational Documents. The Borrower shall provide to the Agent
copies of any amendments or modifications to, or replacements of, the Borrower's
certificate or articles of limited partnership, and the organizational documents
of each Special Purpose Entity. The Borrower shall cause to be provided to the
Agent copies of any amendments or modifications to, or replacements of, the
Guarantor's certificate or articles of incorporation or by-laws.
6.13. Non-Use Fee. Borrower shall pay to Agent for the benefit of the
Lenders on each March 1, June 1, September 1 and December 1 while the Loan is
outstanding the Non-Use Fee attributable to the preceding calendar quarter.
6.14. USA Patriot Act. Borrower represents and warrants to the Lenders
that neither Borrower nor any entity or individual owning, owned by or under
common ownership with Borrower or any guarantor of the Loan (each for purpose of
this Section 6.14, an "Affiliate"), is identified in any list of known or
suspected terrorists published by any United States government agency
(individually, as each such list may be amended or supplemented from time to
time, referred to as a "Blocked Persons List"), including, without limitation,
(a) the annex to Executive Order 13224 issued on September 23, 2001 by the
President of the United States and (b) the Specially Designated Nationals List
published by the United States Office of Foreign Assets Control. Furthermore,
Borrower hereby agrees that if Borrower becomes aware that Borrower or any
Affiliate is identified on any Blocked Persons List, Borrower shall immediately
notify Agent
36
in writing of such information. In the event Borrower or any Affiliate is at any
time identified on any Blocked Persons List, such event shall be an Event of
Default, and shall entitle the Agent and the Lenders to exercise any and all
remedies provided hereunder or in any other Loan Document or otherwise permitted
by law. In addition, Agent or any Lender may immediately contact the Office of
Foreign Assets Control and any other governmental agency Agent or such Lender
deems appropriate in order to comply with its legal obligations. Upon the
occurrence of such Event of Default, Agent and Lenders shall forbear enforcement
of their rights and remedies during such time as (1) the party identified in a
Blocked Persons List is contesting in good faith by appropriate legal
proceedings such party's inclusion in a Blocked Persons List and (2) Agent or
any Lender, as the case may be, determines, in its sole and absolute discretion,
that such forbearance will not adversely affect title to, the condition or value
of, or any lien in favor of the Lenders and encumbering any part of the
Mortgaged Property or otherwise adversely impact the ability of the party or
Borrower to perform their respective obligations under or with respect to any
Loan Document.
ARTICLE VII
BORROWER'S NEGATIVE COVENANTS
The Borrower covenants that until payment in full of Loan and performance
of all of the Borrower's other obligations under the Loan Documents:
7.01. Prohibition upon Transfer, Secondary Financing. The Borrower and
each Special Purpose Entity shall not convey, sell (other than pursuant to a
Mortgaged Property Sale Agreement), lease (other than pursuant to a Lease) or
otherwise dispose of all or any part of a Mortgaged Property or any interest
therein (legal or equitable), or grant any security interest or lien with
respect to such Mortgaged Property, unless in connection therewith the
applicable Mortgage Release Price is paid to the Lenders; provided, however,
Borrower and each Special Purpose Entity shall be entitled to waive its landlord
lien, if required by a Tenant.
7.02. Easements. The Borrower and each Special Purpose Entity will not
enter into any easement affecting a Mortgaged Property without first obtaining
the Agent's written approval, which approval will not be unreasonably delayed or
withheld or conditioned upon payment of fees, of such easement and the terms and
conditions thereof; provided, however, no such approval shall be required if
such easement is granted in the ordinary course of business and provides
reasonable benefit to such Mortgaged Property. The Borrower shall provide to the
Agent an executed copy of any easement entered into in respect of a Mortgaged
Property in respect of which an Advance has been made and remains outstanding.
7.03. Lease/Mortgaged Property Sale Agreement. The Borrower and each
Special Purpose Entity may, in the ordinary course of business, enter into,
modify, amend, alter, terminate or cancel any Lease (other than a Major Lease).
The Borrower and each Special Purpose Entity will not enter into, modify, amend,
alter, terminate or cancel any Major Lease for a Mortgaged Property, or assign,
transfer, pledge or encumber any of its right, title or interest under any
Lease, without the Agent's prior written consent, which consent will not be
unreasonably delayed or withheld or conditioned upon payment of fees, or payment
of the Mortgage Release Price for such Mortgaged Property to the Lenders. The
Agent shall not
37
unreasonably withhold or delay its consent to a modification, amendment or
alteration to such a Major Lease. If the Borrower or a Special Purpose Entity
enters into a Mortgaged Property Sale Agreement for a Mortgaged Property, the
Borrower or a Special Purpose Entity will provide to the Agent a copy of the
same within twenty (20) Business Days after the execution thereof.
7.04. Margin Stock. The Borrower shall not use or cause or permit any of
the proceeds of the Loan to be used, either directly or indirectly, for the
purpose whether immediate, incidental or remote of purchasing or carrying any
margin stock within the meaning of Regulation U or of extending credit to others
for the purpose of purchasing or carrying any margin stock, and the Borrower
shall furnish to the Agent, upon its request, a statement in conformity with the
requirements of Federal Reserve Board Form U-1 referred to in Regulation U.
Further, no part of the proceeds of the Loan will be used for any purpose that
violates, or which is inconsistent with, the provisions of Regulations G, T, U
or X of the Board of Governors of the Federal Reserve System.
7.05. Change Name and Place of Business. The Borrower or a Special Purpose
Entity shall not change its corporate name or principal place of business,
except on not less than fifteen (15) days' prior written notice to the Agent.
7.06. Benefit Plans. The Borrower shall not permit any condition to exist
in connection with any employee benefit plan which might constitute grounds for
the PBGC to institute proceedings to have the employee benefit plan terminated
or a trustee appointed to administer the employee benefit plan; or engage in, or
permit to exist or occur any other condition, event or transaction with respect
to any employee benefit plan which could result in the Borrower incurring any
material liability, fine or penalty.
7.07. Restricted Assets. The Consolidated Group shall not construct,
acquire or otherwise own nursing homes, congregate care or assisted living
facilities or acquire any undeveloped real estate which the Consolidated Group
does not intend to construct a Real Estate Asset thereon or a portion thereof
(collectively, the "Restricted Assets") unless Borrower delivers to Agent copies
of resolutions authorizing such acquisitions and the aggregate value of all such
Restricted Assets does not exceed Ten Percent (10%) of the Total Current Value
of Assets.
7.08. Recourse Indebtedness. Other than the Loan, the Mezzanine Debt and
the Construction Loans, Borrower, Guarantor and the Special Purpose Entities
will not have outstanding Recourse Indebtedness in excess of Thirteen Million
Dollars ($13,000,000).
7.09. Variable Rate Indebtedness. Other than the Loan and Construction
Loans, Borrower, Guarantor and the Special Purpose Entities will not incur
unprotected Variable Rate Indebtedness in excess of Ten Million Dollars
($10,000,000).
7.10. Mortgaged Properties Debt Service Coverage Ratio. Borrower will not
allow the Mortgaged Properties Debt Service Coverage Ratio to be less than 1.40
to 1.00.
7.11. Mezzanine Debt. Other than the Mezzanine Debt, the Consolidated
Group will not incur any additional Mezzanine Debt. In addition, the
Consolidated Group shall not incur
38
Mezzanine Debt on any one Real Estate Asset in excess of Four Million Dollars
($4,000,000), and provided further, the aggregate amount of the applicable
Construction Loan and the Mezzanine Debt shall not exceed ninety percent (90%)
of the Real Estate Asset Budget Amount for any such Real Estate Asset.
7.12. Asset Value of Real Estate Assets. From the date hereof through
September 30, 2004, the total asset value of all projects under construction
(measured by the Real Estate Assets Budget Amount) shall not exceed forty
percent (40%) of the Total Current Value of Assets and at all times after
September 30, 2004, the total asset value of all projects under construction
(measured by the Real Estate Assets Budget Amount) shall not exceed thirty-five
percent (35%) of the Total Current Value of Assets.
7.13. Dissolve, Liquidate, Merge, Etc. The Borrower, Guarantor or any
Special Purpose Entity shall not dissolve, liquidate, enter into any
consolidation or merger with, or acquisition of, any other Person.
Notwithstanding the foregoing, Borrower or a Special Purpose Entity may, without
the written consent of Agent (A) transfer limited partnership interests or
membership units in the Borrower or a Special Purpose Entity, as applicable, (B)
replace the general partner for the Borrower or the manager of a Special Purpose
Entity with a wholly owned Subsidiary of Guarantor, (C) convert interests in the
Borrower into interests in Guarantor, and (D) issue additional limited
partnership units or other securities, even if such issuance results in a
reduction of the partnership interest of Guarantor in the Borrower, provided
that, after giving effect to such transactions, transfer or series of transfers
described in (A), (B), (C) and (D), Guarantor or a wholly owned Subsidiary of
Guarantor owns more than fifty-one percent (51%) of the partnership interests of
the Borrower and the Borrower owns more than fifty-one percent (51%) of the
Special Purpose Entity and the Guarantor has managerial control over Borrower
and Borrower has managerial control over the applicable Special Purpose Entity.
7.14. Value of Undeveloped Land. The total asset value of all undeveloped
land owned by the Consolidated Group (excluding the value of any land under
construction) shall not exceed Five Percent (5%) of the Total Current Value of
Assets.
ARTICLE VIII
DEFAULTS
8.01. Events of Default. The Borrower agrees each of the following
described events shall constitute an "Event of Default" hereunder:
a. The Borrower shall fail to make any payment under the Notes
within ten (10) days after the date the same are due and payable; or
b. Any representation or warranty made by the Borrower herein, in
any other Loan Document or in any certificate, financial statement or
other document furnished by the Borrower or a Special Purpose Entity
pursuant to the provisions hereof, shall prove to have been materially
false or misleading as of the time made or furnished, and the Borrower
does not, within thirty (30) days after the earlier of receiving written
notice from the Agent or the Borrower's own determination that such
representation or warranty
39
is false or misleading, commence and complete such actions as are
necessary to make such warranty or representation true and accurate;
provided, however, that the Borrower shall not be entitled to the
foregoing cure period if the Borrower had actual knowledge that such
representation or warranty was false or misleading when made; or
c. The Borrower shall default in the performance or observance of
the covenants contained in Article VII hereof, and such default has not
been cured or corrected within thirty (30) days following written notice
from the Agent to the Borrower; provided, however, that if such default is
of such a nature that it cannot be cured or corrected within such thirty
(30) day period, the Borrower shall be entitled to such additional time as
may be necessary to cure or correct such default if the Borrower promptly
commences such cure or corrective action and diligently pursues such cure
or corrective action to completion; or
d. The Borrower shall default in the performance or observance of
any other covenant, condition or provision herein contained including
those set forth in this Article VIII for which no specific grace or cure
period is set forth, and such default has not been cured or corrected
within thirty (30) days following written notice from the Agent to the
Borrower; provided, however, that if such default is of such a nature that
it cannot be cured or corrected within such thirty (30) day period, the
Borrower shall be entitled to such additional time as may be necessary to
cure or correct such default if the Borrower promptly commences such cure
or corrective action and diligently pursues such cure or corrective action
to completion; provided, further, however, there shall be no grace or cure
period afforded to Borrower for any Event of Default set forth under
Sections 8.01(o) through 8.01(s) below; or
e. The Borrower shall default in the performance or observance of
any covenant, condition or provision contained in any other Loan Document
to which the Borrower is a party, and such default shall continue uncured
after any applicable cure or grace period, or if such Loan Document does
not contain an applicable cure period, such default has not been cured or
corrected within thirty (30) days following written notice from the Agent
to the Borrower; provided, however, that if such default is of such a
nature that it cannot be cured or corrected within such thirty (30) day
period, the Borrower shall be entitled to such additional time as may be
necessary to cure or correct such default if the Borrower promptly
commences such cure or corrective action and diligently pursues such cure
or corrective action to completion; or
f. The Borrower or a Special Purpose Entity shall neglect, refuse or
fail to keep in full force and effect any permit or approval issued by any
Governmental Authority required for the occupancy or use of a Mortgaged
Property and the same is not reinstated within thirty (30) days after the
Borrower receives notice (from any source) that such permit or approval is
no longer in full force and effect; or
g. A Mortgaged Property or any part thereof shall be condemned or
damaged by fire or other casualty in such manner as to preclude, in the
Lenders' sole reasonable judgment, the restoration of the Improvements
forming a part of such Mortgaged
40
Property and the Borrower fails to substitute an alternate Mortgaged
Property within sixty (60) days thereof or fails to deliver to the Lenders
the Mortgage Release Price for such Mortgaged Property; or
h. An accurate survey of a Mortgaged Property at any time shall show
that any of the Improvements constructed thereon materially encroach upon
any street, easement, right of way or adjoining property or violate any
set back requirement, unless such encroachment or violation is
satisfactorily insured against under the Title Policy issued in respect of
such Mortgaged Property or was in existence at the time the Lenders
approve the Real Estate Asset as Mortgaged Property and shown on the
survey provided to the Agent, or that any adjoining structure materially
encroaches on a Mortgaged Property, unless such encroachment is cured
within sixty (60) days following receipt of notice thereof by the Borrower
or was in existence at the time such Mortgaged Property was mortgaged; or
i. The occurrence of any event which results in or causes a Material
Adverse Effect; or
j. A writ of execution or attachment or any similar process shall be
issued or levied against all or any part of or interest in a Mortgaged
Property, or any judgment involving monetary damages shall be entered
against the Borrower which shall become a lien on a Mortgaged Property or
any portion thereof or interest therein and such execution, attachment or
similar process or judgment is not released, bonded, satisfied, vacated or
stayed within sixty (60) days after its entry or levy or Borrower fails to
deliver to the Lenders the Mortgage Release Price for such Mortgaged
Property within sixty (60) days after the date of such entry or levy; or
k. The Borrower, a Special Purpose Entity or the Guarantor shall
file a voluntary petition in bankruptcy or shall file any petition or
answer seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief for
itself under any present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief for debtors;
or shall seek or consent to or acquiesce in the appointment of any
trustee, receiver, liquidator, assignee, custodian, sequestrator (or other
similar official) of the Borrower, a Special Purpose Entity or the
Guarantor, or of all or any part of a Mortgaged Property, or of any or all
of the royalties, revenues, rents, issues or profits thereof, or shall
make any general assignment for the benefit of creditors, or shall admit
in writing its inability to pay its debts, as the case may be, generally
as they become due, or shall become insolvent or unable to pay its debts
as they mature, or shall make a general assignment for the benefit of
creditors, or shall voluntarily suspend transaction of its business or
take any corporate action in furtherance of the foregoing; or
l. A court of competent jurisdiction shall enter an order, judgment
or decree adjudicating the Borrower, a Special Purpose Entity or the
Guarantor as bankrupt or insolvent or approving a petition filed against
the Borrower, a Special Purpose Entity or the Guarantor seeking any
reorganization, dissolution or similar relief under any present
41
or future federal, state or other statute, law or regulation relating to
bankruptcy, insolvency, or other relief for debtors, and such order,
judgment or decree shall remain unvacated and unstayed for an aggregate of
sixty (60) days (whether or not consecutive) from the first date of entry
thereof; or any trustee, receiver or liquidator of the Borrower, a Special
Purpose Entity or the Guarantor or of all or any part of a Mortgaged
Property, or of any or all of the royalties, revenues, rents, issues or
profits thereof, shall be appointed without the consent or acquiescence of
the Borrower, a Special Purpose Entity or the Guarantor, as the case may
be, and such appointment shall remain unvacated and unstayed for an
aggregate period of sixty (60) days (whether or not consecutive); or
m. The Borrower or a Special Purpose Entity has breached or
defaulted under the Lease for a Mortgaged Property which results in a
Material Adverse Effect, and such breach or default has not been cured or
corrected within any applicable cure period provided under such Lease; or
n. Guarantor sells, assigns, hypothecates, pledges or otherwise
transfers its interest as a partner of the Borrower.
o. At any time, the Leverage Ratio exceeds Sixty Percent (60%) and
the same is not cured within ninety days after written notice from the
Agent to Borrower.
p. At any time, the Minimum Tangible Worth of the Borrower is less
than Sixty Million Dollars ($60,000,000) plus One Hundred Percent (100%)
of additional net proceeds of future stock sales.
q. Guarantor's dividends exceed One Hundred Percent (100%) of its
funds from operations as determined in accordance with NAREIT in any
calendar year.
r. At any time, the aggregate occupancy of the Mortgaged Properties
is less than Eighty-Five Percent (85%), inclusive of occupancy with
respect to master leases and occupancy agreements approved by Agent.
s. At any time, the Debt Service Coverage Ratio is less than 1.8 to
1.0 during any calendar quarter from and after December 31, 2003.
t. There occurs a Reportable Event or a Prohibited Transaction
under, or any complete or partial withdrawal from, or any other event
which would constitute grounds for termination of or the appointment of a
trustee to administer, any "plan" maintained by the Borrower or any ERISA
Affiliate for the benefit of its "employees" (as such terms are defined in
ERISA) which could have a Material Adverse Effect.
u. Xxxx Klipsch shall cease to be Chairman and CEO of Guarantor or
Xxxx Xxxxxx shall cease to be President and Chief Operating Officer of
Borrower and replacements acceptable to Required Lenders are not in place
within ninety (90) days.
If any Event of Default described in 8.01(k) or (l) occurs the Lenders
shall be under no further obligation to make any Advances and the Loan and all
interest accrued thereon and any
42
penalty or premium thereunder and all other liabilities of the Borrower
hereunder, thereunder and under the other Loan Documents shall thereupon become
and be immediately due and payable without any election or action on the part of
the Lenders, and without presentment, demand, protest, or notice of any kind,
all of which are hereby expressly waived, and if any other Event of Default
described in Section 8.01 occurs and, if there is a cure period, is not cured as
set forth herein, the Lenders shall terminate their commitments to make Advances
hereunder and declare the Loan and all interest accrued thereon and any penalty
or premium thereunder pursuant to Section 2.08 hereof and all other liabilities
of the Borrower hereunder, thereunder and under the other Loan Documents to be
due and payable, whereupon the same shall become and be immediately due and
payable without presentment, demand, protest or notice of any kind, all of which
are hereby expressly waived.
8.02. Special Remedies. If an Event of Default shall exist, the Lenders
shall have the right, in addition to any rights or remedies available to them
under the Loan Documents or otherwise available to them at law or in equity, to
enter upon and take possession of the Mortgaged Properties. For purposes of this
Section 8.02, the Borrower agrees that the Lenders shall have the right, and
hereby irrevocably constitutes and appoints the Agent its true and lawful
attorney-in-fact, coupled with an interest, with full power of substitution, to
(i) prosecute and defend all actions or proceedings in connection with the
Mortgaged Properties and to take such action and require such performance as the
Lenders deem necessary in connection therewith; and (ii) generally do any and
every act with respect to the occupancy and use of such Mortgaged Properties as
the Borrower or a Special Purpose Entity may do in its own behalf. Should the
unadvanced portion of the Loan be insufficient to pay the sums expended or
incurred by the Lenders for any of the foregoing purposes, the amount of the
deficiency shall be added to the indebtedness evidenced by the Notes and in all
events shall be secured by the lien of the Loan Documents and shall be paid by
the Borrower to the Lenders on demand with interest thereon at the respective
Default Rates until paid.
ARTICLE IX
MISCELLANEOUS
9.01. No Implied Waiver; Cumulative Remedies; Writing Required. No delay
or failure of the Lenders in exercising any right, power or privilege hereunder
(or under any Loan Document) shall affect such right, power or privilege, nor
shall any single or partial exercise thereof or any abandonment or
discontinuance of steps to enforce such a right, power or privilege preclude any
further exercise thereof or of any other right, power or privilege. The rights
and remedies of the Lenders hereunder and under the other Loan Documents are
cumulative and not exclusive of any rights or remedies which it would otherwise
have. Any waiver, permit, consent or approval of any kind or character on the
part of the Lenders of any breach or default under this Agreement or any other
Loan Document, or any waiver by the Lenders of any provision or condition of
this Agreement or any other Loan Document, must be in writing and shall be
effective only to the extent as may be specifically set forth in such writing.
9.02. Taxes. The Borrower shall pay any and all stamp, document, mortgage,
intangibles, transfer and recording taxes, fees (including notary fees and
mortgage/deed of trust release fees) and similar impositions payable or
hereafter determined to be payable in connection
43
with the execution, delivery and/or recording and release of the Loan Documents,
and the Borrower agrees to save the Lenders harmless from and against any and
all present or future claims or liabilities with respect to, or resulting from,
any delay in paying or omitting to pay any such taxes, fees or similar
impositions.
9.03. Modifications and Amendments. Upon execution thereof, each Project
Agreement shall automatically be deemed to be an amendment of this Agreement,
which amendment shall apply, however, only to the Mortgaged Property which is
the subject of such Project Agreement.
9.04. Holidays. Except as otherwise provided herein, whenever any payment
or action to be made or taken under any of the Loan Documents shall be stated to
be due or to be performed on a day which is not a business day, such payment or
action shall be made or taken on the next-following business day and such
extension of time shall be included in computing interest or fees, if any, in
connection with such payment or action.
9.05. Notices. All notices, statements, requests and demands given to or
made upon either party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given or made one (1) day after the same
are deposited with a nationally recognized overnight delivery service, or
immediately upon receipt, if delivered by courier, addressed as follows:
If to the Agent: The Huntington National Bank
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxx X. XxXxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxxxx
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Borrower: Windrose Medical Properties, L.P.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxx
Secretary and General Counsel
0000 Xxxxxxxxx Xxxxxx Xxxxx
00
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
000-000-0000
000-000-0000
or in accordance with the latest unrevoked written direction from either party
to the other party hereto. Failure of the Agent to furnish the Borrower's
attorney with a copy of any notice provided to the Borrower hereunder shall not
be deemed a failure of the Agent to provide the Borrower with such notice and
shall not affect, or in any way prevent or estop the Lenders from exercising,
any right or remedy of the Lenders hereunder or under any of the other Loan
Documents.
9.06. Reimbursement for Certain Expenses. All reasonable costs incidental
to the Loan and all Advances thereof, including, but not limited to, title
insurance premiums, survey charges, appraisal fees, insurance premiums,
inspecting engineers' and/or architects' fees, attorneys' costs of the Agent and
fees and any and all other incidental expenses of the Agent, shall be paid by
the Borrower, together with any other fees agreed upon by Borrower, Agent and
Lenders. All such fees and expenses shall be paid upon the receipt of a
statement therefor.
9.07. No Third Party Rights. Nothing in this Agreement, whether express or
implied, shall be construed to give to any Person other than the parties hereto
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any other Loan Document, which is intended for the sole and
exclusive benefit of the parties hereto and thereto.
9.08. Interest Limitation. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, the obligations of the
Borrower to the Lenders under this Agreement and any other Loan Documents are
subject to the limitation that payments of interest to the Lenders shall not be
required to the extent that receipt by the Lenders of any such payment by the
Borrower would be contrary to provisions of governmental requirements applicable
to the Lenders which limit the maximum rate of interest which may be charged or
collected by the Lenders.
9.09. Severability. The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
9.10. Governing Law. THE BORROWER AGREES WITH THE LENDERS THAT, EXCEPT AS
EXPRESSLY SET FORTH IN THE MORTGAGES AND THE ASSIGNMENTS OF RENTS AND ANY OTHER
LOAN DOCUMENTS, THE LAW OF THE STATE OF INDIANA SHALL GOVERN ALL MATTERS
RELATING TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ALL OF THE
INDEBTEDNESS OR OBLIGATIONS OF THE BORROWER ARISING HEREUNDER OR THEREUNDER. THE
BORROWER (a) SHALL BE SUBJECT TO PERSONAL JURISDICTION IN THE STATE OF INDIANA
AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA
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LOCATED IN STATE OF INDIANA (AND ANY APPELLATE COURTS TAKING APPEALS THEREFROM)
FOR THE ENFORCEMENT OF THE BORROWER'S OBLIGATIONS HEREUNDER AND UNDER THE OTHER
LOAN DOCUMENTS AND (b) WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAW OF ANY
OTHER STATE TO OBJECT TO JURISDICTION WITHIN INDIANA FOR THE PURPOSES OF SUCH
ACTION, SUIT, PROCEEDING OR LITIGATION TO ENFORCE SUCH OBLIGATIONS OF THE
BORROWER. THE BORROWER WAIVES AND AGREES NOT TO ASSERT, AS A DEFENSE IN ANY
ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS (x)THAT IT IS NOT SUBJECT TO SUCH JURISDICTION OR THAT SUCH
ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN THOSE
COURTS OR THAT THIS AGREEMENT AND SUCH OTHER LOAN DOCUMENTS MAY NOT BE ENFORCED
IN OR BY THOSE COURTS OR THAT IT IS EXEMPT OR IMMUNE FROM EXECUTION, (y) THAT
THE ACTION, SUIT OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, OR (z) THAT
THE VENUE OF THE ACTION, SUIT OR PROCEEDING IS IMPROPER. NOTHING IN THIS SECTION
9.10 SHALL BE DEEMED TO PRECLUDE THE LENDERS FROM FILING ANY ACTION, SUIT OR
PROCEEDING IN RESPECT OF THIS AGREEMENT OR SUCH OTHER LOAN DOCUMENTS IN THE
STATE IN WHICH THE BORROWER HAS ITS CHIEF EXECUTIVE OFFICE OR THE FEDERAL COURTS
OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE IN WHICH THE BORROWER HAS
ITS CHIEF EXECUTIVE OFFICE, OR THE STATE IN WHICH A MORTGAGED PROPERTY IS
LOCATED OR THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE
STATE IN WHICH A MORTGAGED PROPERTY IS LOCATED.
9.11. Certain Fees. No broker's or finder's fee or commission will be
payable with respect to the Loan, this Agreement, or the other Loan Documents,
or any of the transactions contemplated hereby, and the Borrower hereby
indemnifies the Lenders against, and agrees that it will hold the Lenders
harmless from, any claim, demand, or liability for any such broker's or finder's
fee or commission alleged to have been incurred in connection herewith or
therewith and any expenses (including reasonable fees, expenses, and
disbursements of counsel) arising in connection with any such claim, demand, or
liability.
9.12. Survival. All representations, warranties, covenants, agreements and
obligations of the Borrower contained in this Agreement, as amended or
supplemented from time to time, shall survive the making of Advances and shall
continue in full force and effect so long as the Loan is outstanding and until
payment and performance in full of all of the Borrower's obligation thereunder
and under the Loan Documents.
9.13. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed and delivered by the parties, shall constitute an
original but all such counterparts together constituting but one and the same
instrument.
9.14. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the Lenders, the Borrower and their respective
successors and assigns, except that
46
the Borrower may not assign or transfer its rights and obligations hereunder or
any interest herein without the prior written consent of the Lenders.
9.15. Time of Essence. Time is of the essence under the Loan Documents.
9.16. No Joint Venture. Notwithstanding anything to the contrary herein
contained or implied, the Lenders, by this Agreement, or by any action pursuant
hereto, shall not be deemed to be a partner of, or a joint venturer with, the
Borrower, and the Borrower hereby indemnifies and agrees to defend and hold the
Lenders harmless, including the payment of reasonable attorneys' fees, from any
loss resulting from any judicial construction of the parties' relationship as
such.
9.17. Lenders Not in Control. None of the covenants or other provisions
contained in the Loan Documents shall, or shall be deemed to, give the Lenders
the rights or power to exercise control over the affairs and/or management of
the Borrower, the power of the Lenders being limited to the right to exercise
the rights and remedies provided to it in the Loan Documents.
9.18. Waiver of Jury Trial. The Borrower and the Lenders, after consulting
or having had the opportunity to consult with counsel, knowingly, voluntarily
and intentionally waives any right they may have to a trial by jury in any
litigation based upon or arising out of the Loan, this Agreement or any other
Loan Document or any of the transactions contemplated hereby or by any other
Loan Document or any course of conduct, dealing, statements, whether oral or
written, or actions of the Borrower or the Lenders. Neither the Borrower nor the
Lenders shall seek to consolidate, by counterclaim or otherwise, any action in
which a jury trial has been waived with any other action in which a jury trial
cannot be or has not been waived. These provisions shall not be deemed to have
been modified in any respect or relinquished by the Lenders or the Borrower
except by written instrument executed by both the Borrower and the Lenders.
ARTICLE X
ASSIGNMENT AND PARTICIPATIONS
10.01. Several Liability. Anything contained in this Agreement to the
contrary notwithstanding, the obligations of the Lenders to Borrower under this
Agreement are several and not joint and several; each Lender shall only be
obligated to fund its Percentage of each disbursement to be made hereunder up to
the amount of its Commitment.
10.02. Assignments and Participations.
a. Each Lender shall have the right to assign, transfer, sell,
negotiate, pledge or otherwise hypothecate this Agreement and any of its
rights and security hereunder and under the other Loan Documents to any
other lending institution (an "Assignee") with the prior written consent
of the Agent and with the prior written consent of Borrower, which
consents by the Agent and the Borrower shall not be unreasonably withheld,
conditioned or delayed (provided that no consent of Borrower shall be
required if the Assignee is also a Lender or if an Event of Default then
exists) and no consent of the Agent shall be required if the Assignee is
also a Lender; provided, however, that (i) the parties to each
47
such assignment shall execute and deliver to Agent, for its approval and
acceptance, an Assignment and Acceptance, (ii) each such assignment shall
be of a constant, and not a varying, percentage of the assigning Lender's
rights and obligations under this Agreement, (iii) unless the Agent and,
so long as no Event of Default exists, Borrower otherwise consent, the
aggregate amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment shall in no event be less than Five
Million Dollars ($5,000,000), and (iv) if the assignment is less than the
assigning Lender's entire interest in the Loan, the assigning Lender must
retain at least a Five Million Dollar ($5,000,000) interest in the Loan.
The Agent may designate any Assignee accepting an assignment of a
specified portion of the Loan to be a Co-Agent, an "Arranger" or similar
title, but such designation shall not confer on such Assignee the rights
or duties of the Agent. Upon such execution, delivery, approval and
acceptance, and upon the effective date specified in the applicable
Assignment and Acceptance, (a) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder and under the other Loan Documents,
and Borrower hereby agrees that all of the rights and remedies of the
Lenders in connection with the interest so assigned shall be enforceable
against Borrower by an Assignee with the same force and effect and to the
same extent as the same would have been enforceable but for such
assignment, and (b) the assigning Lender thereunder shall, to the extent
that rights and obligations hereunder and under the other Loan Documents
have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations hereunder and
thereunder. Notwithstanding the foregoing, if, as a result of such
assignment by a Lender (or by entities of which a Lender or Lenders are
subsidiaries), a Lender or two or more Lenders that are, directly or
indirectly, subsidiaries of a common parent (collectively, "Merged
Lenders") hold a Commitment or Commitments in an aggregate amount
exceeding the amount of the Commitment held by the Agent, the Agent may,
at its election, but without any obligation to do so, acquire from such
Lender or Merged Lenders a portion of its or their Commitments and rights
and obligations hereunder in an amount necessary to reduce the aggregate
amount of the Commitments of the Merged Lenders, and to increase the
Commitment of the Agent, to equal amounts. Such election shall be
exercisable by notice from the Agent to the Merged Lenders and shall be
effected, on a date designated in such notice.
b. By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the Assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) except
as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection
with this Agreement or any other Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other Loan Document or any other instrument or document
furnished in connection therewith; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrower, Guarantor or
48
any Special Purpose Entity or the performance or observance by the
Borrower, Guarantor or any Special Purpose Entity of any of its
obligations under any Loan Document or any other instrument or document
furnished in connection therewith; (iii) such Assignee confirms that it
has received a copy of this Agreement together with such financial
statements, Loan Documents and other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter
into the Assignment and Acceptance and to become a Lender hereunder; (iv)
such Assignee will, independently and without reliance upon Agent, the
assigning Lender or any other Lender, 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) such Assignee appoints and authorizes the Agent to take such action as
the Agent on its behalf and to exercise such powers under this Agreement
and the other Loan Documents as are delegated to Agent by the terms hereof
and thereof, together with such powers as are reasonably incidental
thereto; and (vi) such Assignee agrees that 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 Lender.
c. Agent shall maintain a copy of each Assignment and Acceptance
delivered to and accepted by it and shall record in its records the names
and address of each Lender and the Commitment of, and Percentage of the
Loan owing to, such Lender from time to time. Borrower, the Agent and
Lenders may treat each entity whose name is so recorded as a Lender
hereunder for all purposes of this Agreement.
d. Upon receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee, Agent shall, if such Assignment and
Acceptance has been properly completed and consented to if required
herein, accept such Assignment and Acceptance, and record the information
contained therein in its records, and the Agent shall use its best efforts
to give prompt notice thereof to Borrower (provided that neither the Agent
nor the Lenders shall be liable for any failure to give such notice).
e. Borrower shall use reasonable efforts to cooperate with Agent and
each Lender in connection with the assignment of interests under this
Agreement or the sale of participations herein.
f. Anything in this Agreement to the contrary notwithstanding, and
without the need to comply with any of the formal or procedural
requirements of this Agreement, including this Section, any Lender may at
any time and from time to time pledge and assign all or any portion of its
rights under all or any of the Loan Documents to a Federal Reserve Bank;
provided that no such pledge or assignment shall release such Lender from
its obligations hereunder. To facilitate any such pledge or assignment,
the Agent shall, at the request of such Lender, enter into a letter
agreement with the Federal Reserve Bank in, or substantially in, the form
of the exhibit to Appendix C to the Federal Reserve Bank of New York
Operating Circular No. 12.
g. Anything in this Agreement to the contrary notwithstanding, any
Lender may assign all or any portion of its rights and obligations under
this Agreement to another branch or affiliate of such Lender without first
obtaining the approval of any
49
Agent or the Borrower, provided that (i) such Lender remains liable
hereunder unless the Borrower and Agent shall otherwise agree, (ii) at the
time of such assignment such Lender is not a Defaulting Lender, (iii) such
Lender gives the Agent and Borrower at least fifteen (15) days prior
written notice of any such assignment, and (iv) the parties to each such
assignment execute and deliver to Agent an Assignment and Acceptance.
h. Each Lender shall have the right, without the consent of the
Borrower, to sell participations to one or more other Lenders (a
"Participant") in or to all or a portion of its rights and obligations
under the Loan and the Loan Documents; provided, however, that (i) such
Lender's obligations under this Agreement (including without limitation
its Commitment to Borrower hereunder) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations (iii) the Borrower, the Agent and the
other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this
Agreement and with regard to any and all payments to be made under this
Agreement and (iv) the holder of any such participation shall not be
entitled to voting rights under this Agreement or the other Loan Documents
(but such holder may contract with the Lender selling such Participant its
interest in such Lender's share of the Loan as to voting of such Lender's
interest under Section 11.06(b) [but not under any other section of this
Agreement], provided that any such agreement by a Lender shall bind only
such Lender alone and not Borrower, the other Lenders or the Agent).
i. No Assignee of any rights and obligations under this Agreement
shall be permitted to subassign such rights and obligations. No
participant in any rights and obligations under this Agreement shall be
permitted to sell subparticipations of such rights and obligations.
j. Borrower acknowledges and agrees that Lenders may provide to any
Assignee or Participant originals or copies of this Agreement, any other
Loan Document and any other documents, instruments, certificates,
opinions, insurance policies, letters of credit, reports, requisitions and
other materials and information of every nature or description, and may
communicate all oral information, at any time submitted by or on behalf of
Borrower or received by any Lender in connection with the Loan or with
respect to Borrower, provided that prior to any such delivery or
communication, such Assignees or Participants shall agree to preserve the
confidentiality of any of the foregoing to the same extent that such
Lender agreed to preserve such confidentiality. In order to facilitate
assignments to Assignees and sales to Participants, Borrower shall execute
such further documents, instruments or agreements as Lenders may
reasonably require; provided, that Borrower shall not be required (i) to
execute any document or agreement which would materially decrease its
rights, or materially increase its obligations, relative to those set
forth in this Agreement or any of the other Loan Documents unless the Loan
Documents are amended concurrently therewith (including financial
obligations, personal recourse, representations and warranties and
reporting requirements), or (ii) to expend more than incidental sums of
money or incidental administrative time for which it does not receive
reasonable reimbursement in order to comply with any requests or
requirements of any Lender in connection with such
50
assignment or sale arrangement. In addition, Borrower agrees to cooperate
fully with Lenders in the exercise of the Lenders' rights pursuant to this
Section, including providing such information and documentation regarding
Borrower as any Lender or any potential Assignee or Participant may
reasonably request and to meet with potential Assignees and Participants.
ARTICLE XI
AGENT
11.01. Appointment. The Huntington National Bank is hereby appointed as
Agent hereunder and under each other Loan Document, and, subject to the terms
hereof, each Lender hereby irrevocably authorizes the Agent to act as agent for
the Lenders and to take such actions as the Lenders are obligated or entitled to
take under the provisions of this Agreement and the other Loan Documents and to
exercise such powers as are set forth herein or therein, together with such
other powers as are reasonably incidental thereto. Agent agrees to act as such
upon the express conditions contained in this Article in substantially the same
manner that it would act in dealing with a loan held for its own account. Agent
shall not have a fiduciary relationship with respect to any Lender by reason of
this Agreement.
The provisions of this Article are solely for the benefit of the Agent and
the Lenders, and Borrower shall not have any rights to rely on or enforce any of
the provisions hereof except as provided in Section 11.02 below. In performing
its functions and duties under this Agreement, the Agent shall act solely as
agent for the Lenders and does not assume, and shall not be deemed to have
assumed, any obligations toward or relationship of agency or trust with or for
the Borrower.
11.02. Reliance on Agent. All acts of and communications by the Agent, as
agent for the Lenders, shall be deemed legally conclusive and binding; and
Borrower or any third party (including any court) shall rely on any and all
communications or acts of the Agent with respect to the exercise of any rights
or the granting of any consent, waiver or approval on behalf of a Lender in all
circumstances where an action by such Lender is required or permitted pursuant
to this Agreement or the provisions of any other Loan Document or by applicable
law without the right or necessity of making any inquiry of any individual
Lender as to the authority of Agent with respect to such matter. In no event
shall any of the foregoing limit the rights or obligations of any Lender with
respect to any other Lender pursuant to this Article XI.
11.03. Powers. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto, and may
exercise all other powers of Lender as are not made subject to the consent of
the Required Lenders pursuant to Section 11.06(a) or any other provision of this
Agreement or to the consent of all Lenders pursuant to Section 11.06(b) or any
other provision of this Agreement. The Agent shall not be considered, or be
deemed, a separate agent of any Lender hereunder, but is, and shall be deemed,
acting in its contractual capacity as Agent, exercising such rights and powers
under the Loan Documents as are specifically delegated to the Agent or Agent is
otherwise entitled to take hereunder. Agent shall
51
have no implied duties to any Lender, or any obligation to any Lender to take
any action except any action specifically provided by the Loan Documents to be
taken by the Agent.
11.04. Disbursements.
a. At least one (1) Business Day (by 11:00 a.m. Columbus, Ohio time)
prior to each date a disbursement of the Loan is to be made hereunder
pursuant to this Agreement (or at least three (3) LIBOR Business Days [by
11:00 a.m. Columbus, Ohio time] for any disbursements to be made at the
Adjusted LIBOR Rate), the Agent shall notify each Lender of the proposed
disbursement. Each Lender shall make available to Agent (or the funding
Lender or entity designated by the Agent), the amount of such Lender's
Percentage of such disbursement (with respect to such Lender, such amount
being referred to herein as an "Advance") in immediately available funds
not later than 11:00 a.m. (Columbus, Ohio time) on the date such
disbursement is to be made (such date being referred to herein as a
"Funding Date"). Unless the Agent shall have been notified by any Lender
prior to such time for funding in respect of any Advance that such Lender
does not intend to make available to the Agent such Lender's Advance, the
Agent may assume that such Lender has made such amount available to the
Agent and the Agent, in its sole discretion, may, but shall not be
obligated to, make available to Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Agent by such
Lender on or prior to the respective Funding Date, such Lender agrees to
pay and Borrower agrees to repay to Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to Borrower until the date such amount
is paid or repaid to Agent, at (A) in the case of such Lender, the Federal
Funds Effective Rate, and (B) in the case of Borrower, the interest rate
applicable at the time to a disbursement made on such Funding Date. If
such Lender shall pay to Agent such corresponding amount, such amount so
paid shall constitute such Lender's Advance, and if both such Lender and
Borrower shall have paid and repaid, respectively, such corresponding
amount, Agent shall promptly return to Borrower such corresponding amount
in same day funds.
b. Requests by the Agent for funding by the Lenders of disbursements
of the Loan will be made by facsimile. Each Lender shall make its Advance
available to the Agent in dollars and in immediately available funds to
such Lender and account as the Agent may designate, not later than 11:00
a.m. (Columbus, Ohio time) on the Funding Date. Nothing in this Section
11.04 shall be deemed to relieve any Lender of its obligation hereunder to
make any Advance on any Funding Date, nor shall any Lender be responsible
for the failure of any other Lender to perform its obligations to make any
Advance hereunder, and the Commitment of any Lender shall not be increased
or decreased as a result of the failure by any other Lender to perform its
obligation to make any Advances hereunder.
c. As soon as practical Agent will promptly forward to each Lender
copies of the Disbursement Request documents described in Paragraph 5.01
of the Loan Agreement. Delivery of the Disbursement Request documents
shall not be a condition to funding any Advance.
52
11.05. Distribution and Apportionment of Payments.
a. Subject to Section 11.05(b), payments actually received by Agent
for the account of the Lenders shall be paid to them promptly after
receipt thereof by Agent, but in any event within one (1) Business Day,
provided that, if any such payments are not distributed to the Lenders
within one Business Day after Agent's receipt thereof, Agent shall pay to
such Lenders interest thereon, at the lesser of (i) the Federal Funds
Effective Rate and (ii) if the applicable payment represents repayment of
a portion of the principal of the Loan, the rate of interest applicable to
such portion of the Loan, from the date of receipt of such funds by Agent
until such funds are paid in immediately available funds to such Lenders
provided such funds are received by Agent not later than 11:00 A.M.
(Columbus, Ohio time) on the date of receipt. All payments of principal
and interest in respect of the Loan, all payments of the fees described in
this Agreement (but not in any separate fee letter except to the extent
expressly set forth therein), and all payments in respect of any other
obligations of Borrower under the Loan Documents shall be allocated among
such of Lenders as are entitled thereto, in proportion of their respective
Percentages or otherwise as provided herein in the other Loan Documents,
as the case may be. The Agent shall distribute to each Lender at its
primary address set forth herein or in its Assignment and Acceptance, or
at such other address as a Lender may request in writing, such funds as it
may be entitled to receive, provided that the Agent shall in any event not
be bound to inquire into or determine the validity, scope or priority of
any interest or entitlement of any Lender and may suspend all payments and
seek appropriate relief (including without limitation instructions from
the Required Lenders, or all Lenders, as applicable, or an action in the
nature of interpleader) in the event of any doubt or dispute as to any
apportionment or distribution contemplated hereby. The order of priority
herein is set forth solely to determine the rights and priorities of the
Lenders as among themselves and may at any time or from time to time be
changed by the Lenders as they may elect, in writing, without necessity of
notice to or consent of or approval by Borrower. b. If a Lender (a
"Defaulting Lender") defaults in making any Advance or paying any other
sum payable by it hereunder, such sum together with interest thereon at
the Default Rate from the date such amount was due until repaid (such sum
and interest thereon as aforesaid referred to, collectively, as the
"Lender Default Obligation") shall be payable by the Defaulting Lender (i)
to any Lender(s) which elect, at their sole option (and with no obligation
to do so), to fund the amount which the Defaulting Lender failed to fund
or (ii) to Agent or any other Lender which under the terms of this
Agreement is entitled to reimbursement from the Defaulting Lender for the
amounts advanced or expended. Notwithstanding any provision hereof to the
contrary, until such time as a Defaulting Lender has repaid the Lender
Default Obligation in full, all amounts which would otherwise be
distributed to the Defaulting Lender shall instead be applied first to
repay the Lender Default Obligation (to be applied first to interest at
the Default Rate and then to principal) until the Lender Default
Obligation has been repaid in full (whether by such application or by cure
by the Defaulting Lender), whereupon such Lender shall no longer be a
Defaulting Lender. Any interest collected from Borrower on account of
principal advanced by any Lender(s) on behalf of a Defaulting Lender shall
be paid to the Lender (s) who made such advance and shall be credited
against the Defaulting Lender's obligation to pay interest on the amount
advanced at the Default Rate. If no other Lender
53
makes an advance a Defaulting Lender failed to fund, a portion of the
indebtedness of Borrower to the Defaulting Lender equal to the Lender
Default Obligation shall be subordinated to the indebtedness of Borrower
to all other Lenders and shall be paid only after the indebtedness of
Borrower to all other Lenders is paid. The provisions of this Section
shall apply and be effective regardless of whether an Event of Default
occurs and is then continuing, and notwithstanding (i) any other provision
of this Agreement to the contrary or (ii) any instruction of Borrower as
to its desired application of payments. No Defaulting Lender shall have
the right to vote on matters which are subject to the consent or approval
of Required Lenders or all Lenders and while any Lender is a Defaulting
Lender the requisite percentage of Lenders which constitutes the Required
Lenders shall be calculated exclusive of the Percentage of the Defaulting
Lender. The Agent shall be entitled to (i) withhold or set off, and to
apply to the payment of the Lender Default Obligation any amounts to be
paid to such Defaulting Lender under this Agreement, and (ii) bring an
action or suit against such Defaulting Lender in a court of competent
jurisdiction to recover the Lender Default Obligation and, to the extent
such recovery would not fully compensate the Lenders for the Defaulting
Lender's breach of this Agreement, to collect damages. In addition, the
Defaulting Lender shall indemnify, defend and hold Agent and each of the
other Lenders harmless from and against any and all claims, actions,
liabilities, damages, costs and expenses (including attorneys' fees and
expenses), plus interest thereon at the Default Rate, for funds advanced
by Agent or any other Lender on account of the Defaulting Lender or any
other damages such persons may sustain or incur by reason of or as a
direct consequence of the Defaulting Lender's failure or refusal to abide
by its obligations under this Agreement.
c. At least five Business Days prior to the first date on which
interest or fees are payable hereunder for the account of any Lender, each
Lender that is not incorporated under the laws of the United States of
America, or a state thereof, agrees that it will deliver to the Agent two
duly completed copies of United States Internal Revenue Service Form 1001
or 4224, certifying in either case that such Lender is entitled to receive
payments under this Agreement and the Note without deduction or
withholding of any United States federal income taxes. Each Lender which
so delivers a Form 1001 or 4224 further undertakes to deliver the Agent
two additional copies of such form (or a successor form) on or before the
date that such form expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent forms so delivered by it,
and such amendments thereto or extensions or renewals thereof as may be
reasonably requested by the Agent, in each case certifying that such
Lender is entitled to receive payments under this Agreement and the Note
without deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change in treaty,
law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender advises the
Agent that it is not capable of receiving payments without any deduction
or withholding of United States federal income tax.
11.06. Consents and Approvals.
54
a. Each of the following shall require the approval or consent of
the Required Lenders:
i. Declaring the Notes to be immediately due and payable
following an Event of Default or any rescission of any such
acceleration;
ii. Approval of the exercise of rights and remedies under the
Loan Documents following an Event of Default;
iii. Appointment of a successor Agent or removal of Agent;
iv. Approval of Post-Default Plan (defined in Section
11.07(d));
v. Approval of a new Mortgaged Property which is not a
Restricted Asset; and
vi. Except as referred to in subsection (b) below, approval of
any amendment or modification of this Agreement or any of the other
Loan Documents, or issuance of any waiver of any material provision
of this Agreement (including any Conditional Default or Event of
Default) or any of the other Loan Documents;
b. Each of the following shall require the approval or consent of
all the Lenders:
i. Extension of the Maturity Date (beyond any extension
permitted herein) or forgiveness of all or any portion of the
principal amount of the Loan or any accrued interest thereon, or any
other amendment of this Agreement or the other Loan Documents which
would reduce the interest rate options or the rate at which fees are
calculated or forgive any loan fee, or extend the time of payment of
any principal, interest or fees;
ii. Reduction of the percentage specified in the definition of
Required Lenders;
iii. Increasing of the amount of the Loan or any Lender's
Commitment;
iv. Release of Borrower, Guarantor or any lien on any material
collateral (including the Mortgaged Properties) (except as Borrower
is entitled to under the Loan Documents);
v. Approval of a Restricted Asset as a Mortgaged Property; and
55
vi. Amendment of the provisions of this Article XI.
c. In addition to the required consents or approvals referred to in
subsections (a) and (b) above, the Agent may at any time request
instructions from the Required Lenders with respect to any actions or
approvals which, by the terms of this Agreement or of any of the Loan
Documents, the Agent is permitted or required to take or to grant without
instructions from any Lenders, and if such instructions are promptly
requested, the Agent shall be absolutely entitled to refrain from taking
any action or to withhold any approval and shall not be under any
liability whatsoever for refraining from taking any action or withholding
any approval under any of the Loan Documents until it shall have received
such instructions from the Required Lenders. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against any
Agent as a result of such Agent acting or refraining from acting under
this Agreement or any of the other Loan Documents in accordance with the
instructions of the Required Lenders or, where applicable, all Lenders.
The Agent shall promptly notify each Lender at any time that the Required
Lenders have instructed the Agent to act or refrain from acting pursuant
hereto. Each Lender hereby agrees to approve or disapprove a request by
Borrower to add new Mortgaged Properties within ten (10) Business Days
after receipt of the information set forth in Exhibit K hereto.
d. Each Lender authorizes and directs the Agent to enter into the
Loan Documents other than this Agreement for the benefit of the Lenders.
Each Lender agrees that any action taken by the Agent at the direction or
with the consent of the Required Lenders in accordance with the provisions
of this Agreement or any other Loan Document, and the exercise by the
Agent at the direction or with the consent of the Required Lenders of the
powers set forth herein or therein, together with such other powers as are
reasonably incidental thereto, shall be authorized and binding upon all
Lenders, except for actions specifically requiring the approval of all
Lenders. All communications from the Agent to the Lenders requesting
Lender's determination, consent, approval or disapproval (i) shall be
given in the form of a written notice to each Lender, (ii) shall be
accompanied by a description of the matter or item as to which such
determination, approval, consent or disapproval is requested, or shall
advise each Lender where such matter or item may be inspected, or shall
otherwise describe the matter or issue to be resolved, (iii) shall
include, if reasonably requested by a Lender and to the extent not
previously provided to such Lender, written materials and a summary of all
oral information provided to the Agent by Borrower in respect of the
matter or issue to be resolved, and (iv) shall include the Agent's
recommended course of action or determination in respect thereof. Each
Lender shall reply promptly, but in any event within ten (10) Business
Days after receipt of the request therefor from the Agent (the " Lender
Reply Period"). Unless a Lender shall give written notice to the Agent
that it objects to the recommendation or determination of the Agent
(together with a written explanation of the reasons behind such objection)
within the Lender Reply Period, such Lender shall be deemed to have
approved of or consented to such recommendation or determination. With
respect to decisions requiring the approval of the Required Lenders or all
Lenders, the Agent shall upon receiving the required approval or consent
follow the
56
course of action or determination recommended to the Lenders by the Agent
or such other course of action recommended by the Required Lenders.
11.07. Consents and Approvals. a. The Agent is hereby authorized on behalf
of all Lenders, without the necessity of any notice to or further consent
from any Lender, at any time and from time to time, to take any action
with respect to any collateral for the Loan or any Loan Document which may
be necessary to preserve and maintain such collateral or to perfect and
maintain perfected the liens upon such collateral granted pursuant to this
Agreement and the other Loan Documents.
b. Except as provided in this Agreement, the Agent shall have no
obligation whatsoever to any Lender or to any other person or entity to
assure that any collateral exists or is owned by Borrower or is cared for,
protected or insured or has been encumbered or that the liens granted
herein or in any of the other Loan Documents or pursuant hereto or thereto
have been properly or sufficiently or lawfully created, perfected,
protected or enforced or are entitled to any particular priority.
c. Should the Agent commence any proceeding or in any way seek to
enforce the Agent's or the Lenders' rights or remedies under the Loan
Documents, irrespective of whether as a result thereof the Agent shall
acquire title to any collateral, each Lender, upon demand therefor from
time to time, shall contribute its share (based on its Percentage) of the
reasonable costs and/or expenses of any such enforcement or acquisition,
including, but not limited to, fees of receivers or trustees, court costs,
title company charges, filing and recording fees, appraisers' fees and
fees and expenses of attorneys to the extent not otherwise reimbursed by
Borrower. Without limiting the generality of the foregoing, each Lender
shall contribute its share (based on its Percentage) of all reasonable
costs and expenses incurred by the Agent (including reasonable attorneys'
fees and expenses) if the Agent employ counsel for advice or other
representation (whether or not any suit has been or shall be filed) with
respect to any collateral for the Loan or any part thereof, or any of the
Loan Documents, or the attempt to enforce any security interest or lien on
any collateral, or to enforce any rights of the Agent or the Lenders or
any of Borrower's or any other party's obligations under any of the Loan
Documents, but not with respect to any dispute between any Agent and any
other Lender(s). It is understood and agreed that in the event the Agent
determines it is necessary to engage counsel for Lender from and after the
occurrence of a Default or Event of Default, said counsel shall be
selected by the Agent and written notice of such selection, together with
a copy of such counsel's engagement letter and fee estimate, shall be
delivered to the Lenders.
d. In the event that all or any portion of the collateral for the
Loan is acquired by the Agent as the result of the exercise of any
remedies hereunder or under any other Loan Document, or is retained in
satisfaction of all or any part of Borrower's obligations under the Loan
Documents, title to any such collateral or any portion thereof shall be
held in the name of the Agent or a nominee or subsidiary of Agent, as
agent, for the ratable benefit of the Agent and the Lenders. The Agent
shall prepare a recommended course of action for such collateral (the
"Post-Default Plan"), which shall be subject to the approval
57
of the Required Lenders. The Agent shall administer the collateral in
accordance with the Post-Default Plan, and upon demand therefor from time
to time, each Lender will contribute its share (based on its Percentage)
of all reasonable costs and expenses incurred by the Agent pursuant to the
Post-Default Plan, including without limitation, any operating losses and
all necessary operating reserves. To the extent there is net operating
income from such collateral, the Agent shall, in accordance with the
Post-Default Plan, determine the amount and timing of distributions to the
Lenders. All such distributions shall be made to the Lenders in accordance
with their respective Percentages. In no event shall the provisions of
this subsection or the Post-Default Plan require the Agent or any Lender
to take an action which would cause such Lender to be in violation of any
applicable regulatory requirements.
11.08. Lender Actions Against Borrower or the Collateral. Each Lender
agrees that it will not take any action, nor institute any actions or
proceedings, against Borrower or any other Person hereunder or under any other
Loan Documents with respect to exercising claims against the Borrower or rights
in any Collateral without the consent of the Required Lenders. With respect to
any action by the Agent to enforce the rights and remedies of the Agent and the
Lenders with respect to the Borrower and any collateral in accordance with the
terms of this Agreement, each Bank hereby consents to the jurisdiction of the
court in which such action is maintained.
11.09. Assignment and Participation. No Lender shall be permitted to
assign or sell all or any portion of its rights and obligations under this
Agreement to Borrower or any Affiliate of Borrower.
11.10. Ratable Sharing. Subject to Sections 11.04 and 11.05, Lenders agree
among themselves that (i) with respect to all amounts received by them which are
applicable to the payment of the Loan, equitable adjustment will be made so
that, in effect, all such amounts will be shared among them ratably in
accordance with their Percentages, whether received by voluntary payment, by the
exercise of the right of set-off or bankers' lien, by counterclaim or cross
action or by the enforcement of any or all of the Loan Documents or any
collateral and (ii) if any of them shall by voluntary payment or by the exercise
of any right of counterclaim, set-off, bankers' lien or otherwise, receive
payment of a proportion of the aggregate amount of the Loan held by it which is
greater than its Percentage of the payments on account of the Loan, the one
receiving such excess payment shall purchase, without recourse or warranty, an
undivided interest and participation (which it shall be deemed to have done
simultaneously upon the receipt of such payment) in such obligations owed to the
others so that all such recoveries with respect to such obligations shall be
applied ratably in accordance with their Percentages; provided, that if all or
part of such excess payment received by the purchasing party is thereafter
recovered from it, those purchases shall be rescinded and the purchase prices
paid for such participations shall be returned to that party to the extent
necessary to adjust for such recovery, but without interest except to the extent
the purchasing party is required to pay interest in connection with such
recovery. Borrower agrees that any Lender so purchasing a participation from
another Lender pursuant to this Section may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of Borrower in the amount of such participation.
58
11.11. General Immunity. Neither Agent nor any of its directors, officers,
agents or employees shall be liable to any Lender for any action taken or
omitted to be taken by it or them hereunder or under any other Loan Document or
in connection herewith or therewith, except for its or their own gross
negligence or willful misconduct.
11.12. No Responsibility for Loan, Recitals, etc. Neither Agent nor any of
its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any use of the Loan;
(ii) the performance or observance of any of the covenants or agreements of any
party to any Loan Document; (iii) the satisfaction of any condition specified in
this Agreement, except receipt of items purporting to be the items required to
be delivered to any Agent; or (iv) the validity, effectiveness or genuineness of
any Loan Document or any other instrument or writing furnished in connection
therewith, provided that the foregoing shall not release Agent from liability
for its gross negligence or willful misconduct.
11.13. Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by all the
Lenders (or the Required Lenders, if such action may be directed hereunder by
the Required Lenders), and such instructions and any action taken or failure to
act pursuant thereto shall be binding on all of Lenders. Each Lender, severally
to the extent of its Percentage, hereby agrees to indemnify Agent against and
hold it harmless from any and all liability, cost and expense that it may incur
by reason of taking or continuing to take any such action, provided that the
foregoing shall not require any Lender to indemnify Agent from liability for its
gross negligence or willful misconduct.
11.14. Employment of Agents and Counsel. The Agent may undertake any of
its duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be liable to Lenders,
except as to money or securities received by them or their authorized agents,
for the default or misconduct of any such agents or attorneys-in-fact selected
by it with reasonable care. The Agent shall be entitled to advice of counsel
concerning all matters pertaining to the agency hereby created and its duties
hereunder and under any other Loan Document.
11.15. Reliance on Documents; Counsel. The Agent shall be entitled to rely
upon any notice, consent, certificate, affidavit, letter, telegram, statement,
paper or document believed by it to be genuine and correct and to have been
signed or sent by the proper person or persons, and, in respect to legal
matters, upon the opinion of counsel selected by the Agent, which counsel may be
an employee of Agent, provided that the foregoing shall not release the Agent
from liability for its gross negligence or willful misconduct. Any such counsel
shall be deemed to be acting on behalf of Lender in assisting the Agent with
respect to the Loan, but shall not be precluded from also representing Agent in
any matter in which the interests of Agent and the other Lenders may differ.
11.16. Agent's Reimbursement and Indemnification. Lenders agree to
reimburse and indemnify Agent ratably (i) for any amounts (excluding principal
and interest on the Loan and loan fees) not reimbursed by Borrower for which
Agent is entitled to reimbursement under the
59
Loan Documents, (ii) for any other expenses incurred by Agent on behalf of
Lender, in connection with the preparation, execution, delivery, administration
and enforcement of the Loan Documents, if not paid by Borrower, (iii) for any
expenses incurred by Agent on behalf of Lender which may be necessary or
desirable to preserve and maintain collateral or to perfect and maintain
perfected the liens upon the collateral granted pursuant to this Agreement and
the other Loan Documents, if not paid by Borrower, (iv) for any amounts and
other expenses incurred by Agent on behalf of Lender in connection with any
default by any Lender hereunder or under the other Loan Documents, if not paid
by such Lender, and (v) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against Agent in any way relating to or arising out of the Loan Documents or any
other document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof or of any
such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of Agent.
11.17. Rights as a Lender. With respect to its Commitment, if any, Agent
shall have the same rights, powers and obligations hereunder and under any other
Loan Document as any Lender and may exercise such rights and powers as though it
were not an Agent, and the term "Lender" or " Lenders" shall, unless the context
otherwise indicates, include Agent in its individual capacities. The Borrower
and each Lender acknowledges and agrees that Agent and/or its Affiliates may
accept deposits from, lend money to, hold other investments in, and generally
engage in any kind of trust, debt, equity or other transaction or have other
relationships, in addition to those contemplated by this Agreement or any other
Loan Document, with Borrower or any of its Affiliates in which Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
11.18. Lender's Credit Decisions. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements and other information prepared by Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon Agent or any other Lender 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 and the
other Loan Documents.
11.19. Notice of Events of Default. Should Agent receive any written
notice of the occurrence of a default or Event of Default, or should the Agent
send Borrower a notice of Default or Event of Default, the Agent shall promptly
furnish a copy thereof to each Lender.
11.20. Successor Agent.
a. Agent may resign from the performance of all its functions and
duties hereunder at any time by giving at least thirty (30) days prior
written notice to Lenders and Borrower. Such resignation shall take effect
on the date set forth in such notice or as otherwise provided below. Such
resignation by Agent as agent shall not affect its obligations hereunder,
if any, as a Lender.
60
b. Upon resignation by, or removal of, the Agent, or any successor
Agent, the Required Lenders shall appoint a successor Agent with the
consent of Borrower, which shall not be unreasonably withheld, conditioned
or delayed (provided that no consent of Borrower shall be required if the
successor Agent is also a Lender or if an Event of Default then exists).
If no successor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment within thirty (30) days
after the retiring Agent's giving notice of resignation, then the retiring
Agent may appoint a successor Agent with the consent of Borrower, which
shall not be unreasonably withheld, conditioned or delayed (provided that
no consent of Borrower shall be required if the successor Agent is also a
Lender or if an Event of Default then exists). Upon the acceptance of any
appointment as an Agent hereunder by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the Agent and the Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder and
under the other Loan Documents other than its liability, if any, for
duties and obligations accrued prior to its retirement. After any retiring
Agent's resignation hereunder as an Agent, the provisions of this Article
25 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as an Agent
hereunder and under the other Loan Documents.
11.21. Additional Duties of Agent.
a. The Agent shall keep proper accounts and records reflecting the
interests of each Lender in the Loan and the Loan Documents; such accounts
and records shall be maintained in accordance with the Standard of Care
(as hereinafter defined), and shall be available for inspection by any
lender during regular business hours upon reasonable prior notice fro such
Lender. As used herein, the term "Standard of Care" shall mean the same
standard of diligence, care and judgment as Agent uses with loans
comparable to the Loan which Agent makes, holds and administers for its
own account.
b. Agent shall furnish to each Lender, promptly after Agent's
receipt thereof, true and complete copies of all financial reports,
statements and accounts submitted by Borrower or by other on Borrower's
behalf in accordance with the Loan Documents or otherwise with respect to
the Loan.
c. Agent shall provide each Lender with (i) true and complete copies
of all notices and other written communications which Agent shall receive
from Borrower or Guarantor with respect to the Loan promptly after Agent's
receipt of the same; and (ii) true and correct copies of any and all
notices which Agent may furnish to Borrower or Guarantor with respect to
the Loan, promptly after sending the same to Borrower or Guarantor.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
61
SIGNATURE PAGE OF WINDROSE MEDICAL PROPERTIES, L.P. TO AMENDED
AND RESTATED SECURED REVOLVING CREDIT AGREEMENT
"BORROWER"
WINDROSE MEDICAL PROPERTIES, L.P., a
Virginia limited partnership
By: Windrose Medical Properties Trust, a
Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxxxx X. Xxxxxx, President
SIGNATURE PAGE OF THE HUNTINGTON NATIONAL BANK TO AMENDED AND
RESTATED SECURED REVOLVING CREDIT AGREEMENT
"LENDER"
THE HUNTINGTON NATIONAL BANK, a national banking
association, for itself and as agent for the
Lenders
By: /s/ Xxxxxxxxxx X. McNcclan
--------------------------------------
Xxxxxxxxxx X. McNcclan, Vice President
Commitment: $20,000,000
Percentage Interest: 28.5714285%
SIGNATURE PAGE OF BANK ONE, NA TO AMENDED AND RESTATED SECURED
REVOLVING CREDIT AGREEMENT
"LENDER"
BANK ONE, NA, a national banking association
By: /s/ Xxxx Xxxxxxxx Xxxxx
----------------------------------
Printed: Xxxx Xxxxxxxx Xxxxx
Title: Assistant Vice President
Commitment: $15,000,000
Percentage Interest: 21.428571%
SIGNATURE PAGE OF XXXXXXX XXXXX, FSB TO AMENDED AND
RESTATED SECURED REVOLVING CREDIT AGREEMENT
"LENDER"
XXXXXXX XXXXX, FSB, a national banking association
By: /s/ Xxxx X. Xxxxx
-------------------------
Printed: Xxxx X. Xxxxx
Title: Assistant Vice President
Commitment: $10,000,000
Percentage Interest: 14.2857142%
SIGNATURE PAGE OF FIRST NATIONAL BANK & TRUST TO AMENDED AND
RESTATED SECURED REVOLVING CREDIT AGREEMENT
"LENDER"
FIRST NATIONAL BANK & TRUST, a national banking
association
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Xxxxxx X. Xxxxx, Vice President
Commitment: $10,000,000
Percentage Interest: 14.2857142%
SIGNATURE PAGE OF FLEET NATIONAL BANK TO AMENDED AND
RESTATED SECURED REVOLVING CREDIT AGREEMENT
"LENDER"
FLEET NATIONAL BANK, a national banking association
By: /s/ Xxxx Xxxx
----------------------------
Printed: Xxxx Xxxx
Title: VP
Commitment: $15,000,000
Percentage Interest: 21.428571%
SCHEDULE 1
1. A certain Replacement Credit Note in the original principal amount of
$20,000,000 executed by Windrose Medical Properties, L.P. payable to the
order of The Huntington National Bank, dated December 30, 2003, which
Replacement Credit Note has a maturity of September 30, 2005.
2. A certain Replacement Credit Note in the original principal amount of
$15,000,000 executed by Windrose Medical Properties, L.P. payable to the
order of Bank One, NA, dated December 30, 2003, which Replacement Credit
Note has a maturity of September 30, 2005.
3. A certain Replacement Credit Note in the original principal amount of
$10,000,000 executed by Windrose Medical Properties, L.P. payable to the
order of Xxxxxxx Xxxxx, FSB, dated December 30, 2003, which Replacement
Credit Note has a maturity of September 30, 2005.
4. A certain Replacement Credit Note in the original principal amount of
$10,000,000 executed by Windrose Medical Properties, L.P. payable to the
order of First National Bank & Trust, dated December 30, 2003, which
Replacement Credit Note has a maturity of September 30, 2005.
5. A certain Replacement Credit Note in the original principal amount of
$15,000,000 executed by Windrose Medical Properties, L.P. payable to the
order of Fleet National Bank, dated December 30, 2003, which Replacement
Credit Note has a maturity of September 30, 2005.
SCHEDULE 2
The Huntington National Bank
Bank One, NA
Fleet National Bank
Xxxxxxx Xxxxx Bank, FSB
First National Bank & Trust
