UNSECURED REVOLVING CREDIT AGREEMENT
DATED AS OF AUGUST 23, 2000
AMONG
CENTERPOINT PROPERTIES TRUST, AS BORROWER,
BANC ONE CAPITAL MARKETS, INC.,
AS SOLE LEAD ARRANGER/BOOK MANAGER,
BANK ONE, NA, AS ADMINISTRATIVE AGENT AND LENDER,
BANK OF AMERICA, N.A., AS SYNDICATION AGENT AND LENDER
FIRST UNION NATIONAL BANK, AS DOCUMENTATION AGENT AND LENDER,
AMSOUTH BANK, AS MANAGING AGENT AND LENDER,
U.S. BANK NATIONAL ASSOCIATION, AS MANAGING AGENT AND LENDER,
COMMERZBANK AG, NEW YORK BRANCH,
AS MANAGING AGENT AND LENDER,
AND
THE SEVERAL OTHER LENDERS
FROM TIME TO TIME PARTIES HERETO
TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS............................................................................................1
ARTICLE II. THE CREDIT...........................................................................................22
2.1 Commitment............................................................................................22
2.2 Final Principal Payment and Extension Option..........................................................22
2.3 Ratable Loans.........................................................................................22
2.4 Applicable Margins....................................................................................23
2.5 Facility Fee..........................................................................................24
2.6 Other Fees............................................................................................24
2.7 Minimum Amount of Each Advance........................................................................24
2.8 Optional Principal Payments...........................................................................24
2.9 Method of Selecting Types and Interest Periods for New Advances.......................................24
2.10 Conversion and Continuation of Outstanding Advances...................................................25
2.11 Changes in Interest Rate, Etc.........................................................................26
2.12 Rates Applicable After Default........................................................................26
2.13 Swing Line Loans......................................................................................26
2.14 Competitive Bid Loans.................................................................................28
2.15 Fixed Rate Loans......................................................................................32
2.16 Method of Payment.....................................................................................32
2.17 Notes; Telephonic Notices.............................................................................33
2.18 Interest Payment Dates; Interest and Fee Basis........................................................33
2.19 Notification of Advances, Interest Rates and Prepayments..............................................33
2.20 Lending Installations.................................................................................34
2.21 Non-Receipt of Funds by the Administrative Agent......................................................34
2.22 Voluntary Reduction of Aggregate Commitment Amount....................................................34
2.23 Increase in Aggregate Commitment Amount...............................................................35
2.24 Usury.................................................................................................35
2.25 Application of Moneys Received........................................................................36
ARTICLE III. THE LETTER OF CREDIT SUBFACILITY....................................................................37
3.1 Obligation to Issue...................................................................................37
3.2 Types and Amounts.....................................................................................37
3.3 Conditions............................................................................................37
3.4 Procedure for Issuance of Facility Letters of Credit..................................................38
3.5 Reimbursement Obligations; Duties of Issuing Bank.....................................................39
3.6 Participation.........................................................................................40
3.7 Payment of Reimbursement Obligations..................................................................41
3.8 Compensation for Facility Letters of Credit...........................................................42
3.9 Letter of Credit Collateral Account...................................................................42
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ARTICLE IV. YIELD PROTECTION; TAXES..............................................................................42
4.1 Yield Protection......................................................................................42
4.2 Changes in Capital Adequacy Regulations...............................................................43
4.3 Availability of Types of Advances.....................................................................44
4.4 Funding Indemnification...............................................................................44
4.5 Taxes.................................................................................................44
4.6 Lender Statements; Survival of Indemnity..............................................................47
4.7 Limitation on Borrower's Liability....................................................................47
ARTICLE V. CONDITIONS PRECEDENT..................................................................................47
5.1 Initial Advance.......................................................................................47
5.2 Conditions to Each Advance, Issuance of Facility Letter of Credit and Continuation/Conversion.........49
ARTICLE VI. REPRESENTATIONS AND WARRANTIES.......................................................................50
6.1 Existence.............................................................................................50
6.2 Authorization and Validity............................................................................50
6.3 No Conflict; Government Consent.......................................................................50
6.4 Financial Statements; Material Adverse Change.........................................................51
6.5 Taxes.................................................................................................51
6.6 Litigation and Contingent Obligations.................................................................51
6.7 Subsidiaries..........................................................................................51
6.8 ERISA.................................................................................................52
6.9 Accuracy of Information...............................................................................52
6.10 Regulation U..........................................................................................53
6.11 Material Agreements...................................................................................53
6.12 Compliance With Laws..................................................................................53
6.13 Ownership of Properties...............................................................................53
6.14 Investment Company Act................................................................................53
6.15 Public Utility Holding Company Act....................................................................54
6.16 Solvency..............................................................................................54
6.17 Insurance.............................................................................................54
6.18 NYSE and REIT Status..................................................................................55
6.19 Environmental Matters.................................................................................55
6.20 Licenses, etc.........................................................................................56
6.21 Judgments.............................................................................................56
6.22 Property Manager......................................................................................56
6.23 Updated Schedules.....................................................................................56
6.24 Unencumbered Assets...................................................................................57
ARTICLE VII. COVENANTS...........................................................................................59
7.1 Financial Reporting...................................................................................59
7.2 Use of Proceeds.......................................................................................61
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7.3 Notice of Default.....................................................................................62
7.4 Conduct of Business...................................................................................62
7.5 Taxes.................................................................................................63
7.6 Insurance.............................................................................................63
7.7 Compliance with Laws..................................................................................64
7.8 Maintenance of Properties.............................................................................64
7.9 Inspection............................................................................................64
7.10 Maintenance of Status.................................................................................64
7.11 Dividends.............................................................................................64
7.12 Merger; Sale of Assets................................................................................65
7.13 Transfers of Unencumbered Assets......................................................................65
7.14 Ownership and Control of Borrower.....................................................................66
7.15 Subsidiaries, Qualifying Investment Affiliates and Special Qualifying Investment Affiliates...........66
7.16 Liens.................................................................................................66
7.17 Affiliates............................................................................................67
7.18 Interest Rate Hedging.................................................................................67
7.19 Variable Interest Indebtedness........................................................................68
7.20 Consolidated Net Worth................................................................................68
7.21 Indebtedness and Cash Flow Covenants..................................................................68
7.22 Environmental Matters.................................................................................69
7.23 Notification of Rating Change.........................................................................70
7.24 Maximum Revenue from Single Tenant....................................................................70
7.25 Negative Pledge.......................................................................................70
7.26 Manager...............................................................................................70
7.27 Acceleration Notice...................................................................................70
7.28 Lien Searches; Title Searches.........................................................................70
7.29 Additional Covenants..................................................................................71
7.30 Calculation of Financial Covenants Upon Property Breaches.............................................71
ARTICLE VIII. DEFAULTS...........................................................................................71
ARTICLE IX. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.......................................................74
9.1 Acceleration..........................................................................................74
9.2 Amendments, Waivers, Decisions........................................................................74
9.3 Preservation of Rights................................................................................75
ARTICLE X. GENERAL PROVISIONS....................................................................................76
10.1 Survival of Representations...........................................................................76
10.2 Governmental Regulation...............................................................................76
10.3 Taxes.................................................................................................76
10.4 Headings..............................................................................................76
10.5 Entire Agreement......................................................................................76
10.6 Several Obligations; Benefits of this Agreement.......................................................76
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10.7 Expenses; Indemnification.............................................................................77
10.8 Numbers of Documents..................................................................................77
10.9 Accounting............................................................................................77
10.10 Severability of Provisions............................................................................77
10.11 Nonliability of Lenders, Arranger, Administrative Agent, Documentation Agent, Managing Agent and
Syndication Agent.....................................................................................78
10.12 Publicity.............................................................................................78
10.13 Brokers...............................................................................................78
10.14 Confidentiality.......................................................................................78
10.15 CHOICE OF LAW.........................................................................................79
10.16 CONSENT TO JURISDICTION...............................................................................79
10.17 WAIVER OF JURY TRIAL..................................................................................79
ARTICLE XI. THE ADMINISTRATIVE AGENT AND AGREEMENTS AMONG LENDERS................................................80
11.1 Appointment...........................................................................................80
11.2 Powers................................................................................................80
11.3 General Immunity......................................................................................80
11.4 No Responsibility for Loans, Recitals, etc............................................................80
11.5 Action on Instructions of Lenders.....................................................................81
11.6 Employment of Administrative Agents and Counsel.......................................................81
11.7 Reliance on Documents; Counsel........................................................................81
11.8 Administrative Agent's Reimbursement and Indemnification..............................................81
11.9 Rights as a Lender....................................................................................82
11.10 Lender Credit Decision................................................................................82
11.11 Successor Administrative Agent........................................................................82
11.12 Notice of Defaults....................................................................................83
11.13 Requests for Approval.................................................................................83
11.14 Copies of Documents...................................................................................83
11.15 Defaulting Lenders....................................................................................84
ARTICLE XII. RATABLE PAYMENTS....................................................................................84
12.1 Intentionally Deleted.................................................................................84
12.2 Ratable Payments......................................................................................84
ARTICLE XIII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS..................................................85
13.1 Successors and Assigns................................................................................85
13.2 Participations........................................................................................85
13.3 Assignments...........................................................................................86
13.4 Designation of Lender to Make Competitive Bid Loans...................................................87
13.5 Dissemination of Information..........................................................................87
13.6 Tax Treatment.........................................................................................87
13.7 Possession of Loan Documents and Register.............................................................88
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ARTICLE XIV. NOTICES.............................................................................................88
14.1 Giving Notice.........................................................................................88
14.2 Change of Address.....................................................................................88
14.3 Accounts..............................................................................................88
ARTICLE XV. COUNTERPARTS.........................................................................................89
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EXHIBITS
Exhibit A Pricing Grid
Exhibit B-1 Form of Note
Exhibit B-2 Competitive Bid Notes
Exhibit C-1 Competitive Bid Quote Request
Exhibit C-2 Invitation to Submit Competitive Bids
Exhibit C-3 Competitive Bid Quote
Exhibit D Form of Opinion
Exhibit E Form of Compliance Certificate
Exhibit F Form of Assignment Agreement
Exhibit G Form of Loan/Credit Related Money Transfer Instruction
Exhibit H Minimum Specifications for Environmental Investigations
Exhibit I Form of Designation Agreement
Exhibit J Form of Amendment Regarding Increase
Schedules:
Schedule 1 Subsidiaries and Other Investments
Schedule 2 Unencumbered Assets
Schedule 3 Indebtedness and Liens
Schedule 4 Plans and Multiemployer Plans
Schedule 5 Environmental Disclosures
Schedule 6 Noncompliance with Laws
Schedule 7 Litigation and Investigations
Schedule 8 Contingent Obligations
Schedule 9 Indebtedness Defaults
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UNSECURED REVOLVING CREDIT AGREEMENT
This Unsecured Revolving Credit Agreement ("Agreement"), dated as of
August 23, 2000, is among CENTERPOINT PROPERTIES TRUST, a Maryland real estate
investment trust (the "Borrower"), the several banks, financial institutions and
other entities from time to time parties to this Agreement (collectively, the
"Lenders"), BANK ONE, NA, not individually, but as "Administrative Agent", Bank
Of America, N.A., as "Syndication Agent", First Union National Bank, as
"Documentation Agent", Amsouth Bank, as "Managing Agent", U.S. Bank National
Association, as "Managing Agent", and Commerzbank Ag, Chicago Branch, as
"Managing Agent".
RECITALS
A. The Borrower is primarily engaged in the business of
purchasing, developing, owning, operating, leasing, managing, financing and
selling warehouse/industrial properties. It also currently owns certain
Non-Industrial Properties (as hereinafter defined).
B. The Borrower's common shares of beneficial interest are listed
on the New York Stock Exchange, and the Borrower is qualified as a real estate
investment trust.
C. The Borrower, the Administrative Agent, and certain of the
Lenders entered into a Second Amended and Restated Unsecured Revolving Credit
Agreement dated as of November 23, 1998, as previously amended (the "Original
Credit Agreement") pursuant to which the Lenders that are parties thereto agreed
to make loans to the Borrower in the maximum aggregate amount of $250,000,000
(the "Prior Facility").
D. The Borrower has requested that the Lenders extend loans to
the Borrower in the aggregate amount of $350,000,000 (with possible future
increases to an amount up to $400,000,000) pursuant to the terms of this
Agreement (the "Facility"), and that the Administrative Agent act as
administrative agent for the Lenders for the Lenders and that the Prior Facility
be terminated. The Administrative Agent and the Lenders have agreed to do so.
E. Banc One Capital Markets, Inc. has acted as sole lead
arranger/book manager and arranged the Facility between the Lenders and
Borrower and coordinated the closing of the Facility.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement:
"Absolute Interest Period" means, with respect to a Competitive Bid
Loan made at an Absolute Rate, a period of up to 180 days as requested by
Borrower in a Competitive Bid Quote Request and confirmed by a Lender in a
Competitive Bid Quote but in no event extending
beyond the Facility Termination Date. If an Absolute Interest Period would end
on a day which is not a Business Day, such Absolute Interest Period shall end on
the next succeeding Business Day.
"Absolute Rate" means a fixed rate of interest (rounded to the nearest
1/100 of 1%) for an Absolute Interest Period with respect to a Competitive Bid
Loan offered by a Lender and accepted by the Borrower at such rate.
"Administrative Agent" means Bank One, NA in its capacity as agent for
the Lenders pursuant to Article X, and not in its individual capacity as a
Lender, and any successor Administrative Agent appointed pursuant to Article XI.
"Administrative Agent's Fee" is defined in Section 2.6.
"Adjusted Prime Rate" means, for any day, a rate per annum equal to (i)
the Prime Rate for such day plus (ii) Prime Applicable Margin for such day, in
each case changing when and as the Prime Rate changes.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by the Lenders to the Borrower of the same Type
(including Swing Line Loans) and, in the case of LIBOR Advances, for the same
Interest Period, including Reimbursement Obligations.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, which initially shall be $350,000,000, subject to decreases as
provided in Section 2.22 and increases as provided in Section 2.23 and which
shall otherwise only be increased with the consent of all Lenders.
"Aggregate Outstanding Credit Exposure" means, at any time, the
aggregate of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this Unsecured Revolving Credit Agreement, as it may
be amended or modified and in effect from time to time.
"Allocated Facility Amount" means, at any time, the sum of all then
outstanding Advances and the then Facility Letter of Credit Obligations.
"Applicable Cap Rate" means 10.25% for all Non-industrial Properties
that are not multi-family Properties and 9.50% for all industrial and
multi-family Properties.
"Applicable Laws" is defined in Section 6.24(c).
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"Applicable Margin" means the applicable margin set forth in the table
in Section 2.4 used in calculating the interest rate applicable to the various
Types of Advances, which shall vary from time to time in accordance with the
long term unsecured debt rating of Borrower or the rating of this Facility in
the manner set forth in Section 2.4.
"Arranger" means Banc One Capital Markets, Inc.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assets Under Development" means, as of any date of determination, each
Project and expansion area of existing Projects owned by the Borrower or an
Investment Affiliate which is (i) treated as an asset under development under
GAAP, (ii) which is located in the United States of America, and (iii) which has
been designated by the Borrower in a written notice to Administrative Agent as
an "Asset Under Development" for purposes of this Agreement, provided, however,
in no event shall Assets Under Development include any Project or any expansion
area of an existing Project for more than 540 days or any Project or expansion
of an existing Project which is encumbered by a Qualified Mortgage as designated
by the Borrower. Upon written designation to Administrative Agent delivered by
Borrower during such 540-day period, any Project or expansion of an existing
Project which has previously been designated as an "Asset Under Development"
shall be removed from such category. Any Project designated as an Asset Under
Development shall not at the same time be included as a Preleased Assets Under
Development nor as a Pre-Sold Asset Under Development.
"Assignment" as defined in Section 13.3.
"Authorized Officer" means with respect to the Borrower any of the
President, Executive Vice President, Chief Operating Officer, Chief Financial
Officer or Treasurer, acting singly.
"Available Aggregate Commitment" means, at any time, the Aggregate
Commitment then in effect minus the Aggregate Outstanding Credit Exposure at
such time.
"Borrower" means CenterPoint Properties Trust, and its successors and
permitted assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.9.
"Break-up Fee" means the amount due pursuant to Section 4.4 in the
event a LIBOR Advance or Fixed Rate Advance is prepaid.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of LIBOR Advances, a day (other than a Saturday or Sunday) on which
banks generally are open in Chicago, Illinois, and New York, New York for the
conduct of substantially all of their commercial lending activities and on which
dealings in United States dollars are carried on in the London interbank market
and (ii) for all other purposes, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago, Illinois and New York, New York for
the conduct of substantially all of their commercial lending activities.
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"Capital Expenditure Reserve Amount" means, for any period, 5(cent) per
square foot of leasable space in Unencumbered Assets (on an annualized basis).
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person which is not a corporation
and any and all warrants or options to purchase any of the foregoing.
"Capitalized Lease" of a Person means any lease of Property imposing
obligations on such Person, as lessee thereunder, which are required in
accordance with GAAP to be capitalized on a balance sheet of such Person.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.
"Cash Equivalents" means, as of any date, (i) securities issued or
directly and fully guaranteed or insured by the United States Government or any
agency or instrumentality thereof having maturities of not more than one year
from such date, (ii) time deposits and certificates of deposit having maturities
of not more than one year from such date and issued by any domestic commercial
bank having (A) senior long-term unsecured debt rated at least A or the
equivalent thereof by S&P or A2 or the equivalent thereof by Xxxxx'x and (B)
capital and surplus in excess of $100,000,000, (iii) commercial paper rated at
least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by
Xxxxx'x and in either case maturing within 120 days from such date; and (iv)
shares of any money market mutual fund rated at least AAA or the equivalent
thereof by S&P or at least Aaa or the equivalent thereof by Xxxxx'x.
"CDC" means CenterPoint Development Corporation.
"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to
make Revolving Loans not exceeding the amount set forth opposite its signature
below or as set forth in any Notice of Assignment relating to any assignment
that has become effective pursuant to Section 13.3.2, as such amount may be
modified from time to time pursuant to the terms hereof.
"Competitive Bid Borrowing Notice" is defined in Section 2.14(f).
"Competitive Bid Lender" means a Lender or Designated Lender which has
a Competitive Bid Loan outstanding.
"Competitive Bid Loan" is a Loan made pursuant to Section 2.14 hereof.
"Competitive Bid Note" means a new or an amended and restated
promissory note payable to the order of the applicable Lender in the form
attached hereto as Exhibit B-2 to be
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used to evidence any Competitive Bid Loans which such Lender elects to make
(collectively, the "Competitive Bid Notes").
"Competitive Bid Quote" means a response submitted by a Lender to the
Administrative Agent or the Borrower, as the case may be with respect to an
Invitation for Competitive Bid Quotes in the form attached as Exhibit C-3.
"Competitive Bid Quote Request" means a written request from Borrower
to Administrative Agent in the form attached as Exhibit C-1.
"Competitive LIBOR Margin" means, with respect to any Competitive Bid
Loan for a LIBOR Interest Period, the percentage established in the applicable
Competitive Bid Quote which is to be used to determine the interest rate
applicable to such Competitive Bid Loan.
"Condemnation" is defined in Section 8.9.
"Consolidated Net Worth" means, as of any date of determination, an
amount equal to (a) Market Capitalization as of such date minus (b) Total
Liabilities (other than Excludable Convertible Securities) as of such date.
"Consolidated Secured Indebtedness" means, as of any date of
determination, the sum of (a) the aggregate principal amount of all Indebtedness
of the Borrower and its Subsidiaries outstanding at such date which is secured
by a Lien on any asset of the Borrower or any Subsidiary, including without
limitation loans secured by mortgages, stock, or partnership interests, (b) the
Borrower's pro rata share (based on economic interest) of any secured debt of
Investment Affiliates, without duplication of any Indebtedness included under
clause (a), after eliminating intercompany items, and (c) the aggregate
principal amount of all unsecured Indebtedness of the Subsidiaries of Borrower
that have not furnished guaranties of the Facility.
"Consolidated Senior Unsecured Indebtedness" means, as of any date of
determination, the sum of (a) the aggregate principal amount of all Indebtedness
of the Borrower and its Subsidiaries outstanding at such date (excluding
Indebtedness which is contractually subordinated to the Indebtedness of the
Borrower and its Subsidiaries under the Loan Documents on customary terms
acceptable to the Administrative Agent) which does not constitute Consolidated
Secured Indebtedness, and (b) the Borrower's pro rata share (based on economic
interest) of any unsecured debt of Investment Affiliates that own assets
included in the calculation of Value of Unencumbered Assets, without duplication
of any Indebtedness included under clause (a), after eliminating intercompany
items.
"Consolidated Total Indebtedness" means, as of any date of
determination, all Indebtedness of the Borrower and its Subsidiaries outstanding
at such date, determined on a consolidated basis in accordance with GAAP, after
eliminating intercompany items.
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"Consolidated Unsecured Indebtedness" means, as of any date of
determination, the sum of the aggregate principal amount of all Indebtedness for
borrowed money of the Borrower and its Subsidiaries outstanding at such date
which does not constitute Consolidated Secured Indebtedness, after eliminating
intercompany items.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any of its Subsidiaries or
Qualifying Investment Affiliates, are treated as a single employer under Section
414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.10.
"CRS" means CenterPoint Realty Services Corporation.
"Debt Service" means, for any period, (a) Interest Expense for such
period plus (b) the aggregate amount of regularly scheduled principal payments
of Indebtedness (excluding optional prepayments and balloon principal payments
due on maturity in respect of any Indebtedness) required to be made during such
period by the Borrower, or any of its Subsidiaries plus (c) a percentage of all
such regularly scheduled principal payments required to be made during such
period by any Investment Affiliate on Indebtedness (excluding optional
prepayments and balloon principal payments due on maturity in respect of any
Indebtedness) taken into account in calculating Interest Expense, equal to the
greater of (x) the percentage of the principal amount of such Indebtedness for
which the Borrower or any Subsidiary is liable and (y) the percentage economic
interest in such Investment Affiliate held by the Borrower and any Subsidiaries,
in the aggregate, without duplication.
"Debt-Type Preferred Stock" means, for any Person, any preferred stock
issued by such Person which is not typical preferred stock but instead is both
(i) redeemable by the holders thereof on any fixed date or upon the occurrence
of any event and (ii) as to payment of dividends or amounts on liquidation,
either guaranteed by any direct or indirect subsidiary of such Person or secured
by any property of such Person or any direct or indirect subsidiary of such
Person.
"Debt-Type Preferred Stock Expense" for any period for any Person, the
aggregate dividend payments due to the holders of Debt-Type Preferred Stock of
such Person, whether payable in cash or in kind, and whether or not actually
paid during such period.
"DECCA Loan" means that certain loan made by the Department of Commerce
and Community Affairs to the Village of Xxxxxx for the construction of sewer and
water improvements relative to the Deer Run Industrial Park, which obligations
of the Village of Xxxxxx will be supported by Borrower pursuant to a separate
Support Agreement executed by Borrower.
"Default" means an event of default described in Article VIII.
"Defaulting Lender" means any Lender which fails or refuses to perform
its obligations under this Agreement within the time period specified for
performance of such obligation, or, if no time frame is specified, if such
failure or refusal continues for a period of five Business Days after written
notice from the Administrative Agent; provided that if such Lender cures such
failure or refusal, such Lender shall cease to be a Defaulting Lender.
"Designated Lender" means any Person who has been designated by a
Lender to fund Competitive Bid Loans.
"Designating Lender" is defined in Section 13.4.
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"Designation Agreement" means a designation agreement entered into by a
Lender (other than a Designated Lender) and a Designated Lender, and accepted by
the Administrative Agent and Borrower, in substantially the form of Exhibit I
hereto.
"Developable Land" means land owned by Borrower or an Investment
Affiliate which is not currently designated as an Asset Under Development but
which is zoned for its intended use, has access, direct or indirect, to all
necessary utilities, has access, direct or indirect, to publicly dedicated
streets, and is reasonably suitable for the commencement of development in all
material respects.
"EBITDA" means income before extraordinary items (but after the impact
of minority interests and reduced to eliminate any income from Investment
Affiliates), as reported by the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP (provided, however that no income from the TIF
Notes shall be included in the calculation of EBITDA to the extent it is
required to be paid to the holders of the TIF Certificates), plus Interest
Expense, depreciation, amortization and income tax (if any) expense plus a
percentage of such income (adjusted as described above) of any Investment
Affiliate equal to the allocable economic interest in such Investment Affiliate
held by the Borrower and any Subsidiaries, in the aggregate (provided that no
item of income or expense shall be included more than once in such calculation
even if it falls within more than one of the foregoing categories).
"Environmental Laws" means any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority having jurisdiction over the
Borrower, its Subsidiaries or Investment Affiliates, or their respective assets,
and regulating or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any time
hereafter be in effect, in each case to the extent the foregoing are applicable
to the operations of the Borrower, any Investment Affiliate, or any Subsidiary
or any of their respective assets or Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Excludable Convertible Securities" means convertible subordinated debt
instruments which can be converted by the holder into common shares of the
Borrower at a price which is less than the market price for such shares as of
the end of the applicable quarter or which were converted during such quarter.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Administrative Agent, taxes imposed on its overall
net income and franchise taxes imposed on it.
"Facility" is defined in Recital D.
"Facility Fee" is defined in Section 2.5.
"Facility Letter of Credit" means a Letter of Credit issued hereunder.
"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, without
duplication, of the Borrower with respect to
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Facility Letters of Credit, including the aggregate undrawn face amount of the
then outstanding Facility Letters of Credit, but not including Reimbursement
Obligations.
"Facility Termination Date" means October 24, 2003, subject to
extension pursuant to the terms and conditions of Section 2.2 hereof or such
earlier date on which the principal balance of the Facility and all other sums
due in connection with the Facility shall be due as a result of the acceleration
of the Facility.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Financeable Ground Lease" means, a ground lease satisfactory to the
Required Lenders and the Administrative Agent's counsel in their reasonable
discretion, which must provide protections for a potential leasehold mortgagee
("Mortgagee") which include, among other things (i) a remaining term of no less
than 25 years from the Closing Date, (ii) that the lease will not be terminated
until the Mortgagee has received notice of a default and has had a reasonable
opportunity to cure or complete foreclosure, and fails to do so, (iii) a new
lease on the same terms to the Mortgagee as tenant if the ground lease is
terminated for any reason, (iv) non-merger of the fee and leasehold estates, (v)
free transferability of the tenant's interest under the ground lease and (vi)
that insurance proceeds and condemnation awards (from the fee interest as well
as the leasehold interest) will be applied pursuant to the terms of a leasehold
mortgage.
"Fitch" means Fitch IBCA.
"Fixed Charges" for any fiscal quarter means the sum of (i) Debt
Service for such period, plus (ii) dividends and distributions on preferred
units or preferred stock payable by the Borrower and its consolidated
Subsidiaries for such period (including Borrower's pro rata share based on
economic interest of preferred dividends and distributions of Investment
Affiliates), plus (iii) ground lease rents payable by Borrower and its
consolidated Subsidiaries (including Borrower's pro rata share (based on
economic interest) of ground lease rent payable by Investment Affiliates).
"Fixed Rate" as defined in Section 2.15.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed
Rate.
"Fully Diluted Debt Service" means Debt Service less the amount of Debt
Service attributable to instruments which as of the end of the applicable
quarter are Excludable Convertible Securities.
"Funded Percentage" means, with respect to any Lender at any time, a
percentage equal to a fraction the numerator of which is the amount actually
disbursed and outstanding to Borrower by such Lender at such time (including
Swing Line Loans and Competitive Bid
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Loans), and the denominator of which is the total amount disbursed and
outstanding to Borrower by all of the Lenders at such time (including Swing Line
Loans and Competitive Bid Loans).
"Funds From Operations" means, for any period, net income for such
period before depreciation and amortization, gains or losses from extraordinary
items (but including gains or losses on sales of real estate in the ordinary
course of business, e.g. build to suits), gains or losses on investments in
marketable securities and any provisions/benefits for income taxes for such
period, and after adjustments for Investment Affiliates, including joint
ventures.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, applied in a manner consistent
with that used in preparing the financial statements referred to in Section 7.1.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any quasi-governmental agency exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation" means, as to any Person (the "guaranteeing
person"), any obligation (determined without duplication) of (a) the
guaranteeing person or (b) another Person (including, without limitation, any
bank under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counter indemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the maximum stated
amount of the primary obligation relating to such Guarantee Obligation (or, if
less, the maximum stated liability set forth in the instrument embodying such
Guarantee Obligation), provided, that in the absence of any such stated amount
or stated liability, the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith. Notwithstanding the
foregoing, Guarantee Obligations shall not include obligations in connection
with the DECCA Loan until such time as Borrower is required to record and/or
reserve for such obligation in accordance with GAAP, and the amount of the DECCA
Loan included in Guaranteed Obligations shall be the amount Borrower is required
to record and/or reserve in accordance with GAAP from time to time.
"Indebtedness" of any Person at any date means without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade liabilities and other accounts payable, and
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accrued expenses incurred in the ordinary course of business and payable in
accordance with customary practices), to the extent such obligations constitute
indebtedness for the purposes of GAAP, (c) any other indebtedness of such Person
which is evidenced by a note, bond, debenture or similar instrument (excluding
indebtedness related to the TIF Certificates), (d) all Capitalized Lease
Obligations, (e) all obligations of such Person in respect of acceptances issued
or created for the account of such Person, (f) all Guarantee Obligations of such
Person (excluding in any calculation of consolidated indebtedness of the
Borrower, Guarantee Obligations of the Borrower in respect of primary
obligations of any Subsidiary), (g) all reimbursement obligations of such Person
for Letters of Credit and other contingent liabilities (excluding the DECCA Loan
except to the extent included as a Guarantee Obligation), (h) all liabilities
secured by any Lien (other than liens for taxes not yet due and payable) on any
property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof, (i) any repurchase obligation
or liability of such Person or any of its Subsidiaries with respect to accounts
or notes receivable sold by such Person or any of its Subsidiaries, (j) Debt
Type Preferred Stock, (k) such Person's pro rata share (based on economic
interest) of debt in Investment Affiliates and (l) 100% of any loans where such
Person is liable as a general partner, provided however that Indebtedness shall
not include Excludable Convertible Securities or ground lease payments (other
than Capitalized Lease Obligations).
"Interest Expense" means all interest expense of the Borrower and its
Subsidiaries determined in accordance with GAAP (other than interest expense
associate with the TIF Certificates to the extent such amount was deducted from
income from the TIF Notes in determining EBITDA) plus (i) capitalized interest
not covered by an interest reserve from a loan facility, plus (ii) the allocable
portion (based on liability) of any accrued or paid interest incurred on any
obligation for which the Borrower is wholly or partially liable under repayment,
interest carry, or performance guarantees, or other relevant liabilities, plus
(iii) the allocable percentage of any accrued or paid interest incurred on any
Indebtedness of any Investment Affiliate, whether recourse or non-recourse,
equal to the applicable economic interest in such Investment Affiliate held by
the Borrower and any Subsidiaries, in the aggregate, plus (iv) Debt-Type
Preferred Stock Expense of Borrower, its Subsidiaries, and the allocable portion
(based on economic interest) of Debt-Type Preferred Stock Expense of Investment
Affiliates, provided that no expense shall be included more than once in such
calculation even if it falls within more than one of the foregoing categories.
"Interest Period" means an Absolute Interest Period or a LIBOR
Interest Period.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business and other than advances to, or deposits with,
contractors and suppliers in the ordinary course of business), extension of
credit (other than accounts receivable arising in the ordinary course of
business on terms customary in the trade), deposit account or contribution of
capital by such Person to any other Person or any investment in, or purchase or
other acquisition of, the stock, partnership interests, notes, debentures or
other securities of any other Person made by such Person.
"Investment Affiliate" means any Person in which the Borrower, directly
or indirectly, has an ownership interest, whose financial results are not
consolidated under GAAP with the financial results of the Borrower on the
consolidated financial statements of the Borrower.
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"Invitation for Competitive Bid Quotes" means a written notice to the
Lenders from the Administrative Agent in the form attached as Exhibit C-2 for
Competitive Bid Loans made pursuant to Section 2.14.
"Issuance Date" as defined in Section 3.4(a)(2).
"Issuance Notice" as defined in Section 3.4(c).
"Issuing Bank" means, with respect to each Facility Letter of Credit,
any Lender which issues such Facility Letter of Credit.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement, their respective permitted successors and assigns and any
other lending institutions that subsequently become parties to this Agreement.
"Lending Installation" means, with respect to a Lender, any office,
branch, subsidiary or affiliate of such Lender.
"Letter of Credit" of a Person means a letter of credit which is issued
upon the application of such Person or upon which such Person is an account
party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 3.9.
"Letter of Credit Request" as defined in Section 3.4(a).
"LIBOR Advance" means an Advance which bears interest at a LIBOR Rate,
whether a ratable Advance based on the LIBOR Applicable Margin or a Competitive
Bid Loan based on a Competitive LIBOR Margin.
"LIBOR Applicable Margin" means, as of any date with respect to any
LIBOR Advance, the Applicable Margin in effect for such LIBOR Advance as
determined in accordance with Section 2.4 hereof.
"LIBOR Base Rate" means the offered rate for the period equal to or
next greater than the Interest Period for U.S. Dollar deposits of not less than
$1,000,000.00 as of 11:00 A.M. City of London, England time two Business Days
prior to the first day of the Interest Period as shown on the display designated
as "British Bankers Association Interest Settlement Rates" on Reuters for the
purpose of displaying such rate. In the event that such rate is not available on
Reuters, then such offered rate shall be otherwise independently determined by
Administrative Agent from an alternate, substantially similar independent source
available to Administrative Agent or shall be calculated by Administrative Agent
by a substantially similar methodology as that theretofore used to determine
such offered rate. The LIBOR Base Rate shall be rounded to the next higher
multiple of 1/16 of 1% if the rate is not such a multiple.
"LIBOR Interest Period" means, with respect to a LIBOR Advance, a
period of one, two, three or six months commencing on a Business Day selected by
the Borrower pursuant to this Agreement. Such LIBOR Interest Period with respect
to a LIBOR Advance shall end on (but exclude) the day which corresponds
numerically to such date one, two, three or six months
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thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
LIBOR Interest Period shall end on the last Business Day of such next, second,
third or sixth succeeding month. If a LIBOR Interest Period would otherwise end
on a day which is not a Business Day, such LIBOR Interest Period shall end on
the next succeeding Business Day, provided, however, that if said next
succeeding Business Day falls in a new calendar month, such LIBOR Interest
Period shall end on the immediately preceding Business Day. If Borrower and
Lenders agree on a Fixed Rate Advance then reference herein to LIBOR Interest
Period shall also include the applicable interest period agreed upon among
Borrower and Lenders for the Fixed Rate Advance.
"LIBOR Loan" means a Loan which bears interest at a LIBOR Rate.
"LIBOR Rate" means, with respect to a LIBOR Advance for the relevant
LIBOR Interest Period, the sum of (i) the quotient of (a) the LIBOR Base Rate
applicable to such LIBOR Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such LIBOR Interest Period,
plus (ii) the LIBOR Applicable Margin in effect on the day that such LIBOR Base
Rate was determined.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement but excluding the leasehold interest of a lessee in a lease that is
not a Capitalized Lease).
"Like-Kind Exchange" means any exchange of like-kind properties in
accordance with Section 1031 of the Code.
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance.
"Loan Documents" means this Agreement, the Notes, and any guaranty or
other document executed and delivered by the Borrower or a Qualifying Investment
Affiliate or Special Qualifying Investment Affiliate from time to time and
evidencing, securing or guaranteeing payment of indebtedness or obligations
incurred by the Borrower under this Agreement, as any of the foregoing may be
amended or modified from time to time.
"Market Capitalization" means, without duplication, (a) Total Property
Operating Income (allocated appropriately by category of Property) capitalized
at the Applicable Cap Rates for each Property type, plus (b) other income (other
than income derived from Qualified Mortgages and Cash and Cash Equivalents and
income from the TIF Notes that is required to be paid to the holders of the TIF
Certificates) capitalized at 15%, plus (c) the Value of Qualified Mortgages,
plus (d) 100% of the Value of Preleased Assets Under Development and Presold
Assets Under Development, but in no event shall the amount of Market
Capitalization attributable to Preleased Assets Under Development and Presold
Assets Under Development exceed $225,000,000 for purposes of calculating Market
Capitalization, plus (e) 60% of the Value of Assets Under Development, but in no
event shall the amount of Market Capitalization attributable to Assets Under
Development exceed $100,000,000 for purposes of calculating Market
Capitalization, plus (f) the amount of any Unrestricted Cash and Cash
Equivalents owned by Borrower and its Subsidiaries and the pro rata share of
(based on economic interest) Unrestricted Cash and Cash
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Equivalents owned by Investment Affiliates, plus (g) 50% of the Value of
Developable Land, but in no event shall the Market Capitalization attributable
to Developable Land exceed $50,000,000, plus (h) 25% of the Value of Unimproved
Land but in no event shall the Market Capitalization attributable to Unimproved
Land exceed $25,000,000. Market Capitalization shall be determined based on the
results of the most recent fiscal quarter as appropriately annualized in the
case of items (a) and (b) in the foregoing definition.
"Material Adverse Effect" means a material adverse effect on (i) the
business, the results of operations or financial condition of the Borrower and
its Subsidiaries taken as a whole or (ii) the ability of the Borrower to perform
its obligations under the Loan Documents, or (iii) the validity or
enforceability of any of the Loan Documents or the remedies or material rights
of the Administrative Agent or the Lenders thereunder.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
radon, polychlorinated biphenyls and urea-formaldehyde insulation.
"Maximum Legal Rate" means the maximum nonusurious interest rate, if
any, that at any time or from time to time may be contracted for, taken,
reserved, charged or received on the indebtedness evidenced by the Note and as
provided for herein or in the Note or other Loan Documents, under the laws of
such state or states whose laws are held by any court of competent jurisdiction
to govern the interest rate provisions of the Loan.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Multiemployer Plan" means a Plan to which more than one employer is
obligated to make contributions, and which is maintained pursuant to one or more
collective bargaining agreements to which the Borrower or any member of the
Controlled Group is a party.
"Non-industrial Properties" means three retail properties having
approximately 61,183 square feet of gross leasable area, the headquarters
building in Skokie, Illinois leased to Ha-Lo, a parking lot located in the
Naperville Business Park and one 682-unit apartment complex located at 000 Xxxxx
Xxxx Xxxxxx, Xxxxxx, Xxxxxxx.
"Note" means a promissory note, in substantially the form of Exhibit
B-1 hereto, duly executed by the Borrower and payable to the order of a Lender
in the amount of its Commitment, including any amendment, modification, renewal
or replacement of such promissory note or a competitive bid note, in
substantially the form of Exhibit B-2 hereto, duly executed by the Borrower and
payable to the order of a Competitive Bid Lender, including any amendment,
modification, renewal or replacement of such note.
"Notice of Assignment" is defined in Section 13.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, the Facility Letter of Credit Obligations and all accrued
and unpaid fees and all expenses, reimbursements, indemnities and other
obligations of the Borrower or if and to the extent applicable, any Qualifying
Investment Affiliates or Special Qualifying Investment Affiliates to
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the Lenders or to any Lender, the Administrative Agent, or any indemnified party
hereunder arising under the Loan Documents.
"Other Taxes" is defined in Section 4.5(ii).
"Outstanding Credit Exposure" means, as to any Lender at any time, the
sum of (i) the aggregate principal amount of its Revolving Loans outstanding at
such time, plus (ii) an amount equal to its Percentage of the aggregate
principal amount of Swing Line Loans outstanding at such time, plus (iii) an
amount equal to its Percentage of Facility Letter of Credit Obligations.
"Participants" is defined in Section 13.2.1.
"Payment Date" means, with respect to the payment of interest accrued
on any Prime Advance or any Fixed Rate Advance, the first Business Day of each
calendar month (and in addition the last day of the applicable interest period
for a Fixed Rate Advance), and with respect to the payment of interest accrued
on any LIBOR Advance, the last day of the applicable LIBOR Interest Period, and
if the length of the LIBOR Interest Period is greater than 3 months, interest
shall also be payable every 3 months during the term of such LIBOR Interest
Period.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Percentage" means for each Lender the percentage of the Aggregate
Commitment allocated to such Lender as set forth opposite its signature, as such
Percentage may be changed from time to time.
"Permitted Liens" are defined in Section 7.16.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust or other entity or organization, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Preleased Assets Under Development" means, as of any date of
determination, any Project or Rail Facility owned by Borrower or an Investment
Affiliate (i) which is then treated as an asset under development under GAAP,
(ii) which is located in the United States of America (iii) which has been
preleased under binding leases to unaffiliated tenants to the extent of at least
seventy-five percent (75%) of the projected gross leasable area of such Project
and (iv) which has been designated by Borrower in a written notice to
Administrative Agent as a "Preleased Asset Under Development" for purposes of
this Agreement, provided however, (a) in no event shall any Project or Rail
Facility be included in such category of "Preleased Assets Under Development"
for more than five hundred forty (540) days after construction of such asset
commenced and (b) upon written designation to Administrative Agent delivered by
Borrower during such 540-day period, any Project or Rail Facility which has
previously been designated as a "Preleased Asset Under Development", shall be
removed from such category. Upon the earlier to occur of (x) the expiration of
any above-described 540-day period or (y) Administrative Agent's receipt of
Borrower's written designation in accordance with (b) above, any Project or
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Rail Facility which has been designated a "Preleased Asset Under Development"
shall automatically lose such designation (effective as of the next
determination date) for the purpose of determining Market Capitalization.
Notwithstanding the foregoing, if the Preleased Asset Under Development is a
Rail Facility, then a 900-day period shall apply instead of the foregoing
540-day period.
"Presold Assets Under Development" means, as of any date of
determination, any Project owned by Borrower or an Investment Affiliate (i)
which is treated as an asset under development under GAAP, (ii) which is located
in the United States of America, (iii) which has been presold under a binding
purchase and sale agreement and (iv) which has been designated by Borrower in a
written notice to Administrative Agent as a "Presold Asset Under Development"
for purposes of this Agreement, provided however, (a) in no event shall any
Project be included in such category of "Presold Assets Under Development" for
more than five hundred forty (540) days after construction of such asset
commenced and (b) upon written designation to Administrative Agent delivered by
Borrower during such 540-day period, any Project which has previously been
designated as a "Presold Asset Under Development", shall be removed from such
category. Upon the earlier to occur of (x) the expiration of any above-described
540-day period or (y) Administrative Agent's receipt of Borrower's written
designation in accordance with (b) above, any Project which has been designated
a "Presold Asset Under Development" shall automatically lose such designation
(effective as of the next determination date) for the purpose of determining
Market Capitalization.
"Prime Advance" means an Advance which bears interest at the Adjusted
Prime Rate.
"Prime Applicable Margin" means, as of any date, the Applicable Margin
in effect on such date with respect to Prime Advances and Prime Loans, as
determined in accordance with Section 2.4.
"Prime Loan" means a Loan which bears interest at the Adjusted Prime
Rate.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Project" means any Property owned or operated by the Borrower or any
Subsidiary or Investment Affiliate and operated or intended to be operated as an
industrial or warehouse property.
"Property" means each parcel of real property owned (including
leasehold interests) or operated by the Borrower, any Subsidiary or Investment
Affiliate.
"Property Breach" is defined in Section 7.30.
"Property Operating Income" means, with respect to any Property owned
by Borrower, any Subsidiary or any Investment Affiliate, for any period,
earnings from rental operations after deduction for ground lease rents payable
by Borrower (computed in accordance with GAAP but without deduction for
reserves) attributable to such Property plus depreciation, amortization and
interest expense attributable to such Property for such period to the extent
such items were deducted in determining earnings from rental operations, and, if
such period is less than a year,
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adjusted by straight lining various ordinary operating expenses which are
payable less frequently than once during every such period (e.g. real estate
taxes and insurance).
"Purchaser" is defined in Section 13.3.1.
"Qualified Lender" is defined in Section 13.3.1.
"Qualifying Investment Affiliate" means (a) any Subsidiary or
Investment Affiliate with respect to which (i) the Borrower or one of its
Wholly-Owned Subsidiaries has management control of the Subsidiary or Investment
Affiliate and each of its assets and (ii) the Borrower or such Wholly-Owned
Subsidiary, as the case may be, is not subject to restrictions contained in the
organizational documents of any of such entities (or any such restrictions have
expired) on its ability to sell or finance the real property owned by such
Subsidiary or Investment Affiliate or its interest in the Subsidiary or
Investment Affiliate, and (b) CRS, (c) CenterPoint Equipment Capital
Corporation, (d) CDC, (e) CenterPoint Resources Corporation, (f) CenterPoint
Realty Management Corporation (g) CP Realty Management Co. I, and (h)
CenterPoint X'Xxxx Limited Liability Company, provided that the entities
described in clauses (b) through (h) inclusive do not materially change the
nature of their current business or operations. In no event shall a Subsidiary
or Investment Affiliate be a Qualifying Investment Affiliate if it has
Indebtedness that is recourse to the Subsidiary or Investment Affiliate
(excluding Indebtedness that is recourse to the Subsidiary or Investment
Affiliate only for customary non-recourse carve-outs).
"Qualified Mortgage" means a first or second mortgage held by Borrower
on any real estate asset operated or intended to be operated as an industrial
property.
"Rail Facility" means a railroad intermodal facility.
"Register" is defined in Section 13.7.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means at any time, the aggregate of the
Obligations of the Borrower to the Lenders, the Issuing Bank and the
Administrative Agent in respect of all unreimbursed payments or disbursements
made by the Lenders, the Issuing Bank and the Administrative Agent under or in
respect of the Facility Letters of Credit.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
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"Required Lenders" means Lenders in the aggregate having at least 66
2/3% of the Aggregate Commitment (not held by Defaulting Lenders who are not
entitled to vote) or, if the Aggregate Commitment has been terminated, Lenders
in the aggregate holding at least 66 2/3% of the Aggregate Outstanding Credit
Exposure (not held by Defaulting Lenders who are not entitled to vote).
"Reserve Requirement" means, with respect to a LIBOR Loan and LIBOR
Interest Period, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Federal Reserve Board or other governmental
authority or agency having jurisdiction with respect thereto for determining the
maximum reserves (including, without limitation, basic, supplemental, marginal
and emergency reserves) for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D) maintained by a member bank of the
Federal Reserve System.
"Revolving Loan" means, with respect to a Lender, such Lender's loan
made pursuant to its commitment to lend set forth in Section 2.1 (or any
conversion or continuation thereof).
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Senior Loans" as defined in Section 11.15.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Special Qualifying Investment Affiliate" means any Subsidiary or
Investment Affiliate with respect to which (i) the Borrower or one of its
Wholly-Owned Subsidiaries has management control and (ii) the sale or financing
of any Property owned by such entity is substantially controlled by Borrower,
subject to customary provisions set forth in the organizational documents of
such entity with respect to refinancing or rights of first refusal granted to
other members of such entity. For purposes of the preceding sentence the sale or
financing of a Property owned by a Special Qualifying Investment Affiliate shall
be deemed to be substantially controlled by Borrower if Borrower (or a
Wholly-Owned Subsidiary of Borrower) has the ability to exercise a buy/sell
right in the event of a disagreement regarding the sale or financing of such
Property and such buy/sell provision is consistent with the following guidelines
for the purchase/sale of a Person's ownership interest in such entity or a
Project owned by such entity:
1. The buy/sell provision may be invoked by either member of a
Special Qualifying Investment Affiliate if they fail to agree
upon a major decision concerning a Project or as otherwise
specified in the organizational documents of the Special
Qualifying Investment Affiliate;
2. The initiating member is required to deliver notice to the
other member of its intent to initiate the buy/sell provision
and state the cash purchase price such member is willing to
pay for either the Project or the other member's ownership
interest in the Special Qualifying Investment Affiliate (as
applicable);
3. The responding member shall have not more than sixty (60) days
within which to elect to either (a) sell the Project or its
entire ownership interest (as applicable) to
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the initiating member, or (b) purchase the Project or such
initiating member's ownership interest (as applicable); and
4. The closing of such sale is required to occur within two
hundred ten (210) days after the date of the original notice
from the initiating member.
In no event shall a Subsidiary or Investment Affiliate be a Special Qualifying
Investment Affiliate if it has Indebtedness that is recourse to the Subsidiary
or Investment Affiliate (excluding Indebtedness that is recourse to the
Subsidiary or Investment Affiliate only for customary non-recourse carve-outs).
"Subsidiary" means a corporation, partnership or other entity of which
shares of stock or other ownership interests having ordinary voting power (other
than stock or such other ownership interests having such power only by reason of
the happening of a contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by Borrower, and
provided such corporation, partnership or other entity is consolidated with
Borrower for financial reporting purposes under GAAP.
"Substantial Portion" means, with respect to the Property of the
Borrower or its Subsidiaries, Property which represents more than 10% of the
Market Capitalization.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Swing Line Borrowing Notice" is defined in Section 2.13.
"Swing Line Commitment" means the obligation of the Swing Line Lender
to make Swing Line Loans up to a maximum principal amount of $30,000,000 at any
one time outstanding.
"Swing Line Lender" means Bank One, NA or such other Lender which may
succeed to its rights and obligations as Swing Line Lender pursuant to the terms
of this Agreement.
"Swing Line Loan" means a Loan made available to the Borrower by the
Swing Line Lender pursuant to Section 2.13.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but EXCLUDING Excluded Taxes and Other Taxes.
"TIF Certificates" means those certain unsecured promissory notes or
other obligations issued by the Borrower in connection with the participation
and sale of the TIF Notes to third parties.
"TIF Notes" means notes payable to Borrower, Subsidiaries or a
Qualifying Investment Affiliate that are issued in connection with Tax Increment
Financing Agreements that are related to (i) Deer Run Industrial Park, (ii) the
Ford Millennium Project, and (iii) the Chicago International Produce Market.
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"Total Liabilities" means all Indebtedness plus all other GAAP
liabilities (excluding liabilities resulting from the TIF Certificates) of the
Borrower and its Subsidiaries.
"Total Property Operating Income" means the sum of (i) Property
Operating Income for each Property owned (including leaseholds) by Borrower and
its Subsidiaries, and (ii) (without redundancy) the Borrower's pro rata share
(based on economic interest) of Property Operating Income from Property owned
(including leaseholds) by Investment Affiliates. The earnings from rental
operations shall be adjusted to include pro forma earnings (as substantiated to
the reasonable satisfaction of the Administrative Agent) for an entire quarter
for any Property acquired or placed in service during the quarter and to exclude
earnings during such quarter from any Property not owned as of the end of the
quarter.
"Transferee" is defined in Section 13.5.
"Type" means, with respect to any Advance, its nature as a Prime
Advance or a LIBOR Advance.
"Unencumbered Asset" means, with respect to any Property located in the
United States and wholly owned by Borrower, any Qualifying Investment Affiliate
or any Special Qualifying Investment Affiliate (provided that leasehold
interests shall be included only if such interest is pursuant to a "Financeable
Ground Lease") which is in service, at any date of determination, the
circumstance that such asset on such date (a) is not subject to any Liens other
than those in favor of the Lenders or claims (including restrictions on
transferability or assignability) of any kind (including any such Lien, claim or
restriction imposed by the organizational documents of any Qualifying Investment
Affiliate, but excluding restrictions on transferability in the organizational
documents of any Special Qualifying Investment Affiliate and Permitted Liens
described in Section 7.16(i)-(v)), (b) is not subject to any agreement
(including (i) any agreement governing Indebtedness incurred in order to finance
or refinance the acquisition of such asset, and (ii) if applicable, the
organizational documents of any Qualifying Investment Affiliate, but excluding
the organizational documents of any Special Qualifying Investment Affiliate)
which prohibits or limits the ability of the Borrower, any Qualifying Investment
Affiliate or any Special Qualifying Investment Affiliate, as the case may be, to
create, incur, assume or suffer to exist any Lien upon any assets or Capital
Stock of the Borrower, or any of its Qualifying Investment Affiliates or Special
Qualifying Investment Affiliates, (c) is not subject to any agreement (including
any agreement governing Indebtedness incurred in order to finance or refinance
the acquisition of such asset) which entitles any Person to the benefit of any
Lien (but excluding liens in favor of Lenders and other Permitted Liens) on any
assets or Capital Stock of the Borrower or any of its Qualifying Investment
Affiliates or Special Qualifying Investment Affiliates or would entitle any
Person to the benefit of any Lien (but excluding liens in favor of Lenders and
the Permitted Liens described in Section 7.16(i)(v)) on such assets or Capital
Stock upon the occurrence of any contingency (including, without limitation,
pursuant to an "equal and ratable" clause), (d) is not the subject of a material
environmental issue and, if requested by the Administrative Agent, Borrower
shall provide a current or updated supplemental environmental investigative
report which may be an environmental site assessment conducted in accordance
with the minimum specifications in Exhibit H (or one which is not more than two
years old for Unencumbered Assets owned as of the Closing Date), (e) is not the
subject of any material architectural/engineering issue and, if requested by the
Administrative Agent, Borrower shall provide a current engineering report (or
one that is no more than two years old for
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Unencumbered Assets owned as of the Closing Date), and (f) is materially
compliant with property related representations and covenants contained in
Section 6.24 hereof. No Project of a Qualifying Investment Affiliate or a
Special Qualifying Investment Affiliates shall be deemed to be unencumbered
unless (i) both such Project and all Capital Stock of such Qualifying Investment
Affiliate or such Special Qualifying Investment Affiliate, as the case may be,
held by the Borrower is unencumbered and (ii) none of the events described in
Sections 8.7, 8.8, or 8.9 has occurred and is continuing with respect to such
Qualifying Investment Affiliate or Special Qualifying Investment Affiliate.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested nonforfeitable benefits under all Single Employer Plans
determined under Section 4001(a)(18)(A) of ERISA exceeds the fair market value
of all such Plan assets allocable to such benefits determined as of the then
most recent valuation date for such Plans.
"Unimproved Land" shall mean land owned by Borrower or an Investment
Affiliate which is not yet Developable Land but is adjacent to either a
stabilized Property or Developable Land.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default, other than the
occurrence of an event under Section 7.14 during the grace period provided
therein.
"Unrestricted Cash and Cash Equivalents" means, as of any date of
determination, the sum of (a) the aggregate amount of Unrestricted Cash and (b)
the aggregate amount of Unrestricted Cash Equivalents (valued at the fair market
value). As used in this definition, "Unrestricted" means the specified asset is
not subject to any Liens or claims of any kind in favor of any Person, provided
that for purposes of this definition, the amount of undisbursed bond proceeds
held for the benefit of CenterPoint X'Xxxx Limited Liability Company shall be
considered Unrestricted Cash.
"Value" means with respect to Unimproved Land, Developable Land, Assets
Under Development, Preleased Assets Under Development, and Presold Assets Under
Development, book value as determined in accordance with GAAP. If the Lenders
believe in good faith that the book value does not accurately reflect the fair
market value of the applicable asset, then "Value" shall mean the fair market
value (taking into account work that has been completed at the time of
determining such fair market value). Fair market value shall be determined by
mutual agreement among Borrower and the Required Lenders and, if there is no
mutual agreement, then by an appraisal performed by an appraiser acceptable to
the Lenders.
"Value of Qualified Mortgages" means the sum of the value of each
Qualified Mortgage which shall be the lesser of (i) the outstanding principal
balance of such Qualified Mortgage at the time of any determination thereof, or
(ii) 85% of the value of the collateral encumbered by such Qualified Mortgage
(less the outstanding balance of the first mortgage if the Qualified Mortgage is
a second mortgage) determined by capitalizing the operating income of such
collateral, computed in the same manner as the Property Operating Income at
9.5%, provided that the aggregate principal balance of all Qualified Mortgages
included in this determination shall not exceed $50,000,000.
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"Value of Unencumbered Assets" means, as of the end of a quarter, the
sum of (a) the value of all Unencumbered Assets wholly owned by the Borrower,
PLUS (b) the allocable share based on Borrower's economic interest in the value
of the Unencumbered Assets owned by Qualifying Investment Affiliates and Special
Qualifying Investment Affiliates, PLUS (c) the face amount of Unrestricted Cash
and Cash Equivalents owned by Borrower, PLUS (d) the allocable share based on
Borrower's economic interest in the amount of Unrestricted Cash and Cash
Equivalents owned by Qualifying Investment Affiliates and Special Qualifying
Investment Affiliates, PLUS (e) 100% of the then current Value of each Preleased
Asset Under Development and Presold Asset Under Development that constitutes an
Unencumbered Asset except for not meeting the condition that it be in service,
provided that the aggregate amount added by such assets to Value of Unencumbered
Assets shall not exceed $175,000,000, PLUS (f) 60% of the then current Value of
each Asset Under Development that constitutes an Unencumbered Asset except for
not meeting the condition that it be in service, provided that the aggregate
amount added to Value of Unencumbered Assets from Assets Under Development shall
not exceed $75,000,000. In no event shall the aggregate amount added to Value of
Unencumbered Assets from Assets Under Development, Preleased Assets Under
Development and Presold Assets Under Development exceed 25% of the total Value
of Unencumbered Assets. The aggregate amount of Value of Unencumbered Assets
attributable to assets located in any one industrial park shall not exceed 25%
of the total Value of Unencumbered Assets. The aggregate amount of Value of
Unencumbered Assets attributable to both Qualifying Investment Affiliates and
Special Qualifying Investment Affiliates in the aggregate shall not exceed 15%
of the total Value of Unencumbered Assets. Unencumbered Assets shall be valued
by capitalizing the Property Operating Income for such quarter less an assumed
management fee of 3% of gross revenues (excluding tenant recoveries) and an
assumed capital reserve expenditure equal to 5(cent) per square foot of leasable
space (as annualized) from each Project which is an Unencumbered Asset at a rate
equal to the Applicable Cap Rate. If a Property is acquired during a quarter
then Borrower shall be entitled to include pro forma Property Operating Income
from such Property for the entire quarter in the foregoing calculation. If a
Property is no longer owned as of the last day of a quarter, then no value shall
be included based on capitalizing Property Operating Income from such Property.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, association, joint venture
or similar business organization of which 100% of the ownership interests having
ordinary voting power and at least 95% of all other classes of ownership
interest shall at the time be so owned or controlled by such Person.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
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ARTICLE II.
THE CREDIT
2.1 COMMITMENT.
From and including the date of this Agreement and prior to the Facility
Termination Date, each Lender severally agrees, subject to the terms and
conditions set forth in this Agreement, to make Loans to the Borrower from time
to time in amounts not to exceed in the aggregate at any one time outstanding
the amount of such Lender's Commitment minus such Lender's Percentage of
Facility Letter of Credit Obligations and, minus such Lender's Percentage of any
outstanding Swing Line Loans. Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow at any time prior to the Facility
Termination Date. The Commitments of each Lender to lend hereunder shall expire
on the Facility Termination Date.
2.2 FINAL PRINCIPAL PAYMENT AND EXTENSION OPTION.
Any outstanding Advances and all other unpaid Obligations shall be paid
in full by the Borrower on the Facility Termination Date. The Facility
Termination Date can be extended for one year upon notice to the Administrative
Agent at least ninety (90) days before the original Facility Termination Date if
(i) no Default has occurred and is continuing at the time of such notice and at
the time of the original Facility Termination Date, (ii) all of the Lenders
agree to such extension, and (iii) the Borrower pays an extension fee equal to
0.20% of the Aggregate Commitment at the time of the extension. If the Borrower
gives such notice to the Administrative Agent, the Administrative Agent shall
notify the Lenders within 10 days of receipt of such request. The Lenders shall
have 30 days after receipt of such notice to notify Administrative Agent as to
whether they accept or reject such extension request and Administrative Agent
shall notify Borrower at least 45 days prior to the Facility Termination Date of
the acceptance or rejection of the Lenders of Borrower's request to extend the
Facility Termination Date. If the foregoing conditions are satisfied other than
the condition requiring the consent of all Lenders, then Borrower shall have the
right to replace any Lender that does not agree to the extension provided that:
(a) Borrower notifies such Lender that it has elected to replace such Lender and
notifies such Lender and the Administrative Agent of the identity of the
proposed replacement Lender at least 15 Business Days prior to the Facility
Termination Date and (b) the proposed replacement Lender is a Qualified Lender.
The Lender being replaced shall assign its Percentage of the Aggregate
Commitment and its rights and obligations under this Facility to the replacement
Lender pursuant to an Assignment and the replacement Lender shall assume such
Percentage of the Aggregate Commitment and the related obligations under this
Facility prior to the Facility Termination Date. The purchase by the replacement
Lender shall be at par (plus all accrued and unpaid interest and any other sums
owed to such Lender being replaced hereunder) which shall be paid to the Lender
being replaced upon the execution and delivery of the Assignment and no fee
pursuant to Section 13.3.2(ii) shall be required.
2.3 RATABLE LOANS.
Each Advance hereunder shall consist of Loans made from the several
Lenders ratably in proportion to the ratio that their respective Commitments
bear to the Aggregate Commitment
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except for Swing Line Loans which shall be made by the Swing Line Lender in
accordance with Section 2.13 and Competitive Bid Loans made in accordance with
Section 2.14. The ratable Advances may be Prime Advances, LIBOR Advances, Fixed
Rate Advances, or a combination thereof, selected by the Borrower in accordance
with Sections 2.9 and 2.10.
2.4 APPLICABLE MARGINS.
The Prime Applicable Margin and the LIBOR Applicable Margin to be used
in calculating the interest rate applicable to different Types of Advances shall
vary from time to time in accordance with the ratings from Xxxxx'x and S&P for
either Borrower's long-term unsecured debt or this Facility. The applicable debt
ratings and the Applicable Margins are set forth in the table attached as
Exhibit A. All margins and fees change as and when the rating classification
changes. In the event both rating agencies have issued a rating and the rating
agencies are split on the rating for the Borrower's long-term unsecured debt or
this Facility, the lower rating shall, except as set forth below, be deemed to
be the applicable rating (e.g., if the Borrower's Xxxxx'x long-term unsecured
debt or this Facility's rating is Baa1 and its S&P long-term unsecured debt or
this Facility's rating is BBB then the Applicable Margins shall be computed
based on the S&P rating). In the event that Xxxxx'x and S&P issue split ratings
on the Borrower's long term unsecured debt, Borrower may obtain a third rating
from Fitch and the higher of the Xxxxx'x or S&P rating shall be deemed
applicable until the earlier of (i) 90 days after the date of the occurrence of
such split ratings or (ii) the date of the issuance of the third rating by
Fitch. After 90 days, if a third rating has not been issued, the lower of the
Xxxxx'x or S&P rating shall apply. In the event Xxxxx'x and S&P issue different
ratings of the Borrower's long term unsecured debt and the Borrower obtains a
third rating which is different from the Xxxxx'x and S&P ratings, the middle
rating of the three ratings shall be deemed the applicable rating. In the event
Xxxxx'x and S&P issue different ratings on the Borrower's long term unsecured
debt and the Borrower obtains a third rating which is the equivalent of the
Xxxxx'x or S&P rating, the third rating confirming either the Xxxxx'x or S&P
rating, as the case may be, shall be deemed to be the applicable rating. In the
event either Xxxxx'x or S&P has not issued a rating, the rating from the agency
that has issued its rating shall govern. The Applicable Margins shall be
adjusted effective on the next Business Day following any change in the
Borrower's (or the Facility's if applicable) Xxxxx'x long-term unsecured debt
rating and/or S&P's long-term unsecured debt rating, as the case may be
(provided that if Administrative Agent does not receive notice of a change in
rating within forty-five days after it occurs then any reduction in Applicable
Margin shall be effective only when such notice is received). In the event of a
rating agency downgrade, the Borrower will receive a credit for any incremental
borrowing cost should the rating agency(ies) restore the higher rating within a
ninety day period. In the event that either S&P or Xxxxx'x shall discontinue
their ratings of the REIT industry or the Borrower's long-term unsecured debt or
this Facility, a mutually agreeable substitute rating agency shall be selected
by the Required Lenders and the Borrower. If the Required Lenders and the
Borrower cannot agree on a substitute rating agency within forty-five (45) days
of such discontinuance, the Applicable Margin to be used for the calculation of
interest on Advances hereunder shall be Pricing Category 4 (as defined in
Exhibit A). Lenders acknowledge that the rating for Borrower's unsecured long
term debt may be issued even though Borrower has no outstanding unsecured long
term debt.
If a rating agency downgrade or discontinuance results in an increase
in the Prime Applicable Margin or the LIBOR Applicable Margin and if such
increase is reversed and the
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affected Applicable Margin is restored within ninety (90) days thereafter, at
the Borrower's request, the Borrower shall receive a credit against interest
next due the Lenders equal to interest accrued from time to time during such
period of downgrade or discontinuance and actually paid by the Borrower on the
Advances at the differential between such Applicable Margins.
If a rating agency upgrade results in a decrease in the Prime
Applicable Margin or the LIBOR Applicable Margin and if such decrease is
reversed and the affected Applicable Margin is restored with ninety (90) days
thereafter, then Borrower shall pay at the time the next interest payment is due
an additional amount equal to interest accrued from time to time during the
period of upgrade at the differential between such Applicable Margins.
2.5 FACILITY FEE.
The Borrower agrees to pay to the Administrative Agent for the account
of each Lender a facility fee (the "Facility Fee") calculated at a per annum
percentage ("Facility Fee Rate") of the total Aggregate Commitment. The Facility
Fee Rate shall vary from time to time based on the Borrower's long term
unsecured debt rating as set forth in the table attached hereto as Exhibit A.
The Facility Fee shall be paid quarterly in arrears on the last day of each
calendar quarter, beginning September 30, 2000 for the period from the date
hereof to September 30, 2000, and continuing thereafter on the last day of each
subsequent quarter.
2.6 OTHER FEES.
The Borrower agrees to pay all other fees payable to the Administrative
Agent and the Arranger pursuant to the Borrower's prior letter agreements with
them dated July __, 2000.
2.7 MINIMUM AMOUNT OF EACH ADVANCE.
Each LIBOR Advance shall be in the minimum amount of $2,000,000 (and in
multiples of $100,000 if in excess thereof), and each Prime Advance shall be in
the minimum amount of $1,000,000 (and in multiples of $100,000 if in excess
thereof), provided, however, that any Prime Advance may be in the amount of the
unused Aggregate Commitment. Borrower acknowledges that any LIBOR Advance not in
a multiple of $750,000 or $1,000,000 may result in a higher LIBOR Rate.
2.8 OPTIONAL PRINCIPAL PAYMENTS.
The Borrower may from time to time pay, without penalty or premium, all
or any part of outstanding Prime Advances or LIBOR Advances, upon two Business
Days' prior notice to the Administrative Agent and each Lender (except that no
notice shall be required to repay a Swing Line Loan) and each such prepayment
shall be in a minimum amount of $50,000.00 or in multiples thereof, provided
that a LIBOR Advance may not be paid prior to the last day of the applicable
LIBOR Interest Period unless Borrower pays the applicable Break-up Fee.
2.9 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW
ADVANCES.
Unless Borrower and Lenders have agreed upon a Fixed Rate in accordance
with Section 2.15, the Borrower shall select the Type of Advance and, in the
case of each LIBOR Advance, the LIBOR Interest Period applicable to each Advance
from time to time. The Borrower shall
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give the Administrative Agent irrevocable notice (a "Borrowing Notice") (i) not
later than 10:00 a.m. (Chicago time) at least one Business Day before the
Borrowing Date of each Prime Advance (other than a Swing Line Loan), (ii) not
later than 10:00 a.m. (Chicago time) at least three Business Days before the
Borrowing Date for each LIBOR Advance, and (iii) not later than noon (Chicago
time) on the Borrowing Date for each Swing Line Loan, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected (which must be a Prime Advance
in the case of Swing Line Loans), and
(iv) in the case of each LIBOR Advance, the LIBOR Interest Period
applicable thereto.
The Borrower shall also deliver together with each Borrowing Notice the
compliance certificate required in Section 5.2 and otherwise comply with the
conditions set forth in Section 5.2 for Advances. The Administrative Agent shall
provide each Lender by facsimile with a copy of each Borrowing Notice and
compliance certificate on the same Business Day it is received.
Not later than noon (Chicago time) on each Borrowing Date, each Lender
shall make available its Revolving Loan or Revolving Loans, in funds immediately
available in Chicago to the Administrative Agent at the account specified
pursuant to Article XIV. The Lenders shall not be obligated to match fund their
LIBOR Advances. The Administrative Agent will promptly make the funds so
received from the Lenders available to the Borrower from the Administrative
Agent's aforesaid account.
No LIBOR Interest Period may end after the Facility Termination Date
and, unless all of the Lenders otherwise agree in writing, in no event may there
be more than ten (10) different LIBOR Interest Periods for LIBOR Advances
outstanding at any one time.
2.10 CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES.
Prime Advances (other than Swing Line Loans) shall continue as Prime
Advances unless and until such Prime Advances are converted into LIBOR Advances.
Each LIBOR Advance shall continue as a LIBOR Advance until the end of the then
applicable LIBOR Interest Period therefor, at which time such LIBOR Advance
shall be automatically converted into a Prime Advance unless the Borrower shall
have given the Administrative Agent a Conversion/Continuation Notice requesting
that, at the end of such LIBOR Interest Period, such LIBOR Advance shall
continue as a LIBOR Advance for the same or another LIBOR Interest Period.
Subject to the terms of Section 2.7, the Borrower may elect from time to time to
convert all or any part of an Advance of any Type (other than a Swing Line Loan)
into any other Type of Advance; provided that any conversion of any LIBOR
Advance shall be made on, and only on, the last day of the Interest Period
applicable thereto unless Borrower pays the applicable Break-up Fee. The
Borrower shall give the Administrative Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of an Advance not later
than 10:00 a.m.
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(Chicago time) at least one Business Day, in the case of a conversion into a
Prime Advance, or three Business Days, in the case of a conversion into or
continuation of a LIBOR Advance, prior to the date of the requested conversion
or continuation, specifying:
(i) the requested date which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued; and
(iii) the amount and Type(s) of Advance(s) into which such
Advance is to be converted or continued and, in the case of a
conversion into or continuation of a LIBOR Advance, the duration of
the LIBOR Interest Period applicable thereto.
2.11 CHANGES IN INTEREST RATE, ETC.
Each Prime Advance shall bear interest on the outstanding principal
amount thereof, for each day from and including the date such Advance is made or
is converted from a LIBOR Advance into a Prime Advance pursuant to Section 2.10
to but excluding the date it is paid or is converted into a LIBOR Advance
pursuant to Section 2.10 hereof, at a rate per annum equal to the Adjusted Prime
Rate for such day. Changes in the rate of interest on that portion of any
Advance maintained as a Prime Advance will take effect simultaneously with each
change in the Prime Rate. Each LIBOR Advance shall bear interest from and
including the first day of the LIBOR Interest Period applicable thereto to (but
not including) the last day of such LIBOR Interest Period at the LIBOR Rate
determined as applicable to such LIBOR Advance.
2.12 RATES APPLICABLE AFTER DEFAULT.
Notwithstanding anything to the contrary contained in Section 2.9 or
2.10, during the continuance of a Default or Unmatured Default, the Required
Lenders may, at their option, by written notice to the Borrower (which notice
may be revoked at the option of the Required Lenders notwithstanding any
provision of Section 9.2 requiring unanimous consent of the Lenders to changes
in interest rates), declare that no Advance may be made as, converted into or
continued beyond its current term as a LIBOR Advance. During the continuance of
a Default the Required Lenders may, at their option, by prior written notice to
the Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 9.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that (i) each LIBOR Advance shall
bear interest for the applicable LIBOR Interest Period at the rate otherwise
applicable to such LIBOR Interest Period plus 2% per annum until such Default
shall have been cured and (ii) each Prime Advance shall bear interest at a rate
per annum equal to the Adjusted Prime Rate otherwise applicable to the Prime
Advance plus 2% per annum until such Default shall have been cured; provided
that such rates shall become applicable automatically without notice to the
Borrower if a Default occurs under Section 8.7 or Section 8.8.
2.13 SWING LINE LOANS.
(A) AMOUNT OF SWING LINE LOANS. Upon the satisfaction of the conditions
precedent set forth in Section 5.2 and, if such Swing Line Loan is to be made on
the date of the
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initial Advance hereunder, the satisfaction of the conditions precedent set
forth in Section 5.1 as well, from and including the date of this Agreement and
prior to the Facility Termination Date, the Swing Line Lender agrees, on the
terms and conditions set forth in this Agreement, to make Swing Line Loans to
the Borrower from time to time in an aggregate principal amount not to exceed
the Swing Line Commitment, PROVIDED that the Aggregate Outstanding Credit
Exposure shall not at any time exceed the Aggregate Commitment, and PROVIDED
FURTHER that at no time shall the sum of (i) the Swing Line Lender's Percentage
of the Swing Line Loans, PLUS (ii) the outstanding Loans made by the Swing Line
Lender pursuant to Section 2.1, PLUS (iii) the Swing Line Lender's Percentage of
Facility Letter of Credit Obligations exceed the Swing Line Lender's Commitment
at such time. Subject to the terms of this Agreement, the Borrower may borrow,
repay and reborrow Swing Line Loans at any time prior to the Facility
Termination Date.
(B) BORROWING NOTICE. The Borrower shall deliver to the Administrative
Agent and the Swing Line Lender irrevocable notice (a "Swing Line Borrowing
Notice") not later than noon (Chicago time) on the Borrowing Date of each Swing
Line Loan, specifying (i) the applicable Borrowing Date (which date shall be a
Business Day), and (ii) the aggregate amount of the requested Swing Line Loan
which shall be an amount not less than $100,000. The Swing Line Loans shall bear
interest at the Adjusted Prime Rate.
(C) MAKING OF SWING LINE LOANS. Promptly after receipt of a Swing Line
Borrowing Notice, the Administrative Agent shall notify each Lender by fax, or
other similar form of transmission, of the requested Swing Line Loan. Not later
than 2:00 p.m. (Chicago time) on the applicable Borrowing Date, the Swing Line
Lender shall make available the Swing Line Loan, in funds immediately available
in Chicago, to the Administrative Agent at its address specified pursuant to
Article XIII. The Administrative Agent will promptly make the funds so received
from the Swing Line Lender available to the Borrower on the Borrowing Date at
the Administrative Agent's aforesaid address.
(D) REPAYMENT OF SWING LINE LOANS. Each Swing Line Loan shall be paid
in full by the Borrower on or before the fifth (5th) Business Day after the
Borrowing Date for such Swing Line Loan. In addition, the Swing Line Lender (i)
may at any time in its sole discretion with respect to any outstanding Swing
Line Loan, or (ii) shall on the fifth (5th) Business Day after the Borrowing
Date of any Swing Line Loan, require each Lender (including the Swing Line
Lender) to make a Revolving Loan in the amount of such Lender's Percentage of
such Swing Line Loan (including, without limitation, any interest accrued and
unpaid thereon), for the purpose of repaying such Swing Line Loan. Not later
than noon (Chicago time) on the date of any notice received pursuant to this
Section 2.13, each Lender shall make available its required Revolving Loan, in
funds immediately available in Chicago to the Administrative Agent at its
address specified pursuant to Article XIII. Revolving Loans made pursuant to
this Section 2.13 shall initially be Prime Advances and thereafter may be
continued as Prime Advances or converted into LIBOR Advances in the manner
provided in Section 2.10 and subject to the other conditions and limitations set
forth in this Article II. Unless a Lender shall have notified the Swing Line
Lender, prior to its making any Swing Line Loan, that any applicable condition
precedent set forth in Sections 5.1 or 5.2 had not then been satisfied, such
Lender's obligation to make Revolving Loans pursuant to this Section 2.13 to
repay Swing Line Loans shall be unconditional, continuing, irrevocable and
absolute and shall not be affected by any circumstances, including, without
limitation, (a) any set-off, counterclaim, recoupment, defense
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or other right which such Lender may have against the Administrative Agent, the
Swing Line Lender or any other Person, (b) the occurrence or continuance of a
Default or Unmatured Default, (c) any adverse change in the condition (financial
or otherwise) of the Borrower, or (d) any other circumstance, happening or event
whatsoever. In the event that any Lender fails to make payment to the
Administrative Agent of any amount due under this Section 2.13, the
Administrative Agent shall be entitled to receive, retain and apply against such
obligation the principal and interest otherwise payable to such Lender hereunder
until the Administrative Agent receives such payment from such Lender or such
obligation is otherwise fully satisfied. In addition to the foregoing, if for
any reason any Lender fails to make payment to the Administrative Agent of any
amount due under this Section 2.13, such Lender shall be deemed, at the option
of the Administrative Agent, to have unconditionally and irrevocably purchased
from the Swing Line Lender, without recourse or warranty, an undivided interest
and participation in the applicable Swing Line Loan in the amount of such
Revolving Loan, and such interest and participation may be recovered from such
Lender together with interest thereon at the Federal Funds Effective Rate for
each day during the period commencing on the date of demand and ending on the
date such amount is received. On the Facility Termination Date, the Borrower
shall repay in full the outstanding principal balance of the Swing Line Loans.
2.14 COMPETITIVE BID LOANS.
(A) COMPETITIVE BID OPTION. In addition to ratable Advances pursuant to
Section 2.3, but subject to the terms and conditions of this Agreement
(including, without limitation the limitation set forth in Section 2.1 as to the
maximum amount of all Loans not exceeding the Aggregate Commitment), the
Borrower may, as set forth in this Section 2.14, request the Lenders, prior to
the Facility Termination Date, to make offers to make Competitive Bid Loans to
the Borrower. Each Lender may, but shall have no obligation to, make such offers
and the Borrower may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section 2.14. Competitive Bid Loans shall be
evidenced by the Competitive Bid Notes. In no event shall the aggregate of all
Competitive Bid Loans outstanding at any time exceed 50% of the Aggregate
Commitment.
(B) COMPETITIVE BID QUOTE REQUEST. When the Borrower wishes to request
offers to make Competitive Bid Loans under this Section 2.14, it shall transmit
to the Administrative Agent by telecopy a Competitive Bid Quote Request
substantially in the form of Exhibit C-1 hereto so as to be received no later
than (i) 10:00 a.m. (Chicago time) at least five Business Days prior to the
Borrowing Date proposed therein, in the case of a request for a Competitive
LIBOR Margin or (ii) 9:00 a.m. (Chicago time) at least one Business Day prior to
the Borrowing Date proposed therein, in the case of a request for an Absolute
Rate specifying:
(i) the proposed Borrowing Date for the proposed Competitive Bid
Loan, (ii) the requested aggregate principal amount of such
Competitive Bid Loan which must be at least $10,000,000 and an
integral multiple of $1,000,000,
(iii) whether the Competitive Bid Quotes requested are to set
forth a Competitive LIBOR Margin or an Absolute Rate, or both, and
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(iv) the LIBOR Interest Period, if a Competitive LIBOR Margin is
requested, or the Absolute Interest Period, if an Absolute Rate is
requested.
The Borrower may request offers to make Competitive Bid Loans for more than one
(but not more than five) Interest Period in a single Competitive Bid Quote
Request. No Competitive Bid Quote Request shall be given within five Business
Days (or such other number of days as the Borrower and the Administrative Agent
may agree) of any other Competitive Bid Quote Request. A Competitive Bid Quote
Request that does not conform substantially to the form of Exhibit C-1 hereto
shall be rejected, and the Administrative Agent shall promptly notify the
Borrower of such rejection by telecopy.
(C) INVITATION FOR COMPETITIVE BID QUOTES. Promptly and in any event
before the close of business on the same Business Day of receipt of a
Competitive Bid Quote Request that is not rejected pursuant to Section 2.14(b),
the Administrative Agent shall send to each of the Lenders by telecopy an
Invitation for Competitive Bid Quotes substantially in the form of Exhibit C-2
hereto, which shall constitute an invitation by the Borrower to each Lender to
submit Competitive Bid Quotes offering to make the Competitive Bid Loans to
which such Competitive Bid Quote Request relates in accordance with this Section
2.14.
(D) SUBMISSION AND CONTENTS OF COMPETITIVE BID QUOTES.
(i) Each Lender may, in its sole discretion, submit a Competitive
Bid Quote containing an offer or offers to make Competitive Bid Loans
in response to any Invitation for Competitive Bid Quotes. Each
Competitive Bid Quote must comply with the requirements of this
Section 2.14(d) and must be submitted to the Administrative Agent by
telex or telecopy at its offices not later than (a) 2:00 p.m. (Chicago
time) at least four Business Days prior to the proposed Borrowing
Date, in the case of a request for a Competitive LIBOR Margin or (b)
9:00 a.m. (Chicago time) on the proposed Borrowing Date, in the case
of a request for an Absolute Rate (or, in either case upon reasonable
prior notice to the Lenders, such other time and date as the Borrower
and the Administrative Agent may agree); provided that Competitive Bid
Quotes submitted by the Administrative Agent, in its capacity as a
Lender, may only be submitted if the Administrative Agent notifies the
Borrower of the terms of the offer or offers contained therein no
later than 30 minutes prior to the latest time at which the relevant
Competitive Bid Quotes must be submitted by the other Lenders. Subject
to the Borrower's compliance with all other conditions to disbursement
herein, any Competitive Bid Quote of a Lender so made shall be
irrevocable except with the written consent of the Administrative
Agent given on the instructions of the Borrower.
(ii) Each Competitive Bid Quote shall be in substantially the
form of Exhibit C-3 hereto and shall in any case specify:
1) the proposed Borrowing Date, which shall be the same as
that set forth in the applicable Invitation for Competitive Bid
Quotes,
2) the principal amount of the Competitive Bid Loan for
which each such offer is being made, which principal amount (x)
may be greater than, less than or equal to the Commitment of the
quoting Lender,
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(y) must be at least $5,000,000 and an integral multiple of
$1,000,000, and (z) may not exceed the principal amount of
Competitive Bid Loans for which offers are requested,
3) as applicable, the Competitive LIBOR Margin and Absolute
Rate offered for each such Competitive Bid Loan,
4) the minimum amount, if any, of the Competitive Bid Loan
which may be accepted by the Borrower, and
5) the identity of the quoting Lender, provided that such
Competitive Bid Loan may be funded by such Lender's Designated
Lender as provided in Section 2.14(j), regardless of whether that
is specified in the Competitive Bid Quote.
(iii) The Administrative Agent shall reject any Competitive Bid
Quote that:
1) is not substantially in the form of Exhibit C-3 hereto or
does not specify all of the information required by Section
2.14(d)(ii),
2) contains qualifying, conditional or similar language,
other than any such language contained in Exhibit C-3 hereto,
3) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bid Quotes, or
4) arrives after the time set forth in Section 2.14(d)(i).
If any Competitive Bid Quote shall be rejected pursuant to this
Section 2.14(d)(iii), then the Administrative Agent shall notify the
relevant Lender of such rejection as soon as practical.
(E) NOTICE TO BORROWER. The Administrative Agent shall promptly notify
the Borrower of the terms (i) of any Competitive Bid Quote submitted by a Lender
that is in accordance with Section 2.14(d) and (ii) of any Competitive Bid Quote
that amends, modifies or is otherwise inconsistent with a previous Competitive
Bid Quote submitted by such Lender with respect to the same Competitive Bid
Quote Request. Any such subsequent Competitive Bid Quote shall be disregarded by
the Administrative Agent unless such subsequent Competitive Bid Quote
specifically states that it is submitted solely to correct a manifest error in
such former Competitive Bid Quote. The Administrative Agent's notice to the
Borrower shall specify the aggregate principal amount of Competitive Bid Loans
for which offers have been received for each Interest Period specified in the
related Competitive Bid Quote Request and the respective principal amounts and
Competitive LIBOR Margins or Absolute Rate, as the case may be, so offered.
(F) ACCEPTANCE AND NOTICE BY BORROWER. Not later than (i) 6:00 p.m.
(Chicago time) at least four Business Days prior to the proposed Borrowing Date
in the case of a request for a Competitive LIBOR Margin or (ii) 10:00 a.m.
(Chicago time) on the proposed
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Borrowing Date, in the case of a request for an Absolute Rate (or, in either
case upon reasonable prior notice to the Lenders, such other time and date as
the Borrower and the Administrative Agent may agree), the Borrower shall notify
the Administrative Agent of its acceptance or rejection of the offers so
notified to it pursuant to Section 2.14(e); provided, however, that the failure
by the Borrower to give such notice to the Administrative Agent shall be deemed
to be a rejection of all such offers. In the case of acceptance, such notice (a
"Competitive Bid Borrowing Notice") shall specify the aggregate principal amount
of offers for each Interest Period that are accepted. The Borrower may accept
any Competitive Bid Quote in whole or in part (subject to the terms of Section
2.14(d)(iii)); provided that:
(i) the aggregate principal amount of all Competitive Bid Loans
to be disbursed on a given Borrowing Date may not exceed the
applicable amount set forth in the related Competitive Bid Quote
Request,
(ii) acceptance of offers may only be made on the basis of
ascending Competitive LIBOR Margins or Absolute Rates, as the case may
be, and
(iii) the Borrower may not accept any offer that is described in
Section 2.14(d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(G) ALLOCATION BY ADMINISTRATIVE AGENT. If offers are made by two or
more Lenders with the same Competitive LIBOR Margins or Absolute Rates, as the
case may be, for a greater aggregate principal amount than the amount in respect
of which offers are accepted for the related Interest Period, the principal
amount of Competitive Bid Loans in respect of which such offers are accepted
shall be allocated by the Administrative Agent among such Lenders as nearly as
possible (in such multiples, not greater than $1,000,000, as the Administrative
Agent may deem appropriate) in proportion to the aggregate principal amount of
such offers provided, however, that no Lender shall be allocated any Competitive
Bid Loan which is less than the minimum amount which such Lender has indicated
that it is willing to accept. Allocations by the Administrative Agent of the
amounts of Competitive Bid Loans shall be conclusive in the absence of manifest
error. The Administrative Agent shall promptly, but in any event on the same
Business Day, notify each Lender of its receipt of a Competitive Bid Borrowing
Notice and the principal amounts of the Competitive Bid Loans allocated to each
participating Lender.
(H) ADMINISTRATION FEE. The Borrower hereby agrees to pay to the
Administrative Agent an administration fee of $2,500 per each Competitive Bid
Quote Request transmitted by the Borrower to the Administrative Agent pursuant
to Section 2.14(b). Such administration fee shall be payable monthly in arrears
on the first Business Day of each month and on the Maturity Date (or such
earlier date on which the Aggregate Commitment shall terminate or be cancelled)
for any period then ending for which such fee, if any, shall not have been
theretofore paid.
(I) OTHER TERMS. Any Competitive Bid Loan shall not reduce the
Commitment of the Lender making such Competitive Bid Loan, and each such Lender
shall continue to be obligated to fund its full Percentage of all pro rata
Advances under the Facility. Competitive Bid Loans shall not be prepaid prior to
the end of the applicable Interest Period unless the Competitive Bid Lender
consents. Competitive Bid Loans may not be continued and, if not repaid at the
end of the Interest Period applicable thereto, shall (subject to the conditions
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set forth in this Agreement) be replaced by new Competitive Bid Loans made in
accordance with this Section 2.14 or by ratable Advances in accordance with
Section 2.3.
(J) DESIGNATED LENDERS. A Lender may designate its Designated Lender to
fund a Competitive Bid Loan on its behalf as described in Section
2.14(d)(ii)(5). Any Designated Lender which funds a Competitive Bid Loan shall
on and after the time of such funding become the obligee under such Competitive
Bid Loan and be entitled to receive payment thereof when due. No Lender shall be
relieved of its obligation to fund a Competitive Bid Loan, and no Designated
Lender shall assume such obligation, prior to the time such Competitive Bid Loan
is funded.
(K) NOTICE TO LENDERS. Administrative Agent shall provide to all
bidding Lenders a summary report of each competitive bid request including the
amount and rate for each bid awarded.
2.15 FIXED RATE LOANS.
In addition to the other interest rate options provided herein, the
Borrower may request a fixed rate ("Fixed Rate") on any ratable Advance for up
to one (1) year. The Fixed Rate shall be as quoted by the Administrative Agent,
subject to the approval of all of the Lenders. If Borrower and Lenders agree to
a Fixed Rate for all or a portion of the advances outstanding hereunder, all the
provisions contained herein for LIBOR Advances (including without limitation the
provisions of Section 4.4 regarding indemnification in the event of prepayment)
shall be applicable to such Fixed Rate Advances with the Interest Period being
the period of time agreed to by Borrower and Lenders and the LIBOR Rate being
equal to the Fixed Rate agreed to by Borrower and Lenders.
2.16 METHOD OF PAYMENT.
All payments of the Obligations hereunder shall be made, without
setoff, deduction, or counterclaim, in immediately available funds to the
Administrative Agent at the Administrative Agent's account specified pursuant to
Article XIV, or at any other Lending Installation of the Administrative Agent
specified in writing by the Administrative Agent to the Borrower, by noon
(Chicago time) on the date when due and shall (except with respect to repayments
of Swing Line Loans and Competitive Bid Loans) be applied ratably by the
Administrative Agent among the Lenders. Each payment delivered to the
Administrative Agent for the account of any Lender shall be delivered promptly
by the Administrative Agent to such Lender in the same type of funds that the
Administrative Agent received at its account specified pursuant to Article XIV
or at any Lending Installation specified in a notice received by the
Administrative Agent from such Lender promptly. If any payment received by the
Administrative Agent is not delivered to a Lender by the closing of business on
the same Business Day as received by the Administrative Agent (with respect to
payments received by 2:00 p.m., Chicago time) or the next Business Day (with
respect to payments received after 2:00 p.m., Chicago time), Lender shall
receive from the Administrative Agent interest at the Federal Funds Effective
Rate on the payment. The Administrative Agent is hereby authorized to charge the
specific account of the Borrower, if any, maintained with Bank One, NA for such
purpose, for each payment of principal, interest and fees as it becomes due
hereunder. The Borrower shall not have any liability to any Lender for the
failure of the Administrative Agent to promptly deliver funds to any such Lender
and shall be deemed to have made all such payments on the date the respective
payment is made by the
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Borrower to the Administrative Agent provided that it is received by the
Administrative Agent no later than the time specified in this Section 2.16.
2.17 NOTES; TELEPHONIC NOTICES.
Each Lender is hereby authorized to record the principal amount of each
of its Loans and each repayment on the schedule attached to its Note, provided,
however, that the failure to so record shall not affect the Borrower's
obligations under such Note. Each Lender's books and records, including without
limitation, the information, if any, recorded by the Lender on the schedule
attached to its Note, shall be deemed to be prima facia correct absent manifest
error. The Borrower hereby authorizes the Lenders and the Administrative Agent
to extend, convert or continue Advances, effect selections of Types of Advances
and to transfer funds based on telephonic notices made by any person or persons
the Administrative Agent or any Lender in good faith believes to be an
Authorized Officer. The Borrower agrees to deliver promptly to the
Administrative Agent a written confirmation signed by an Authorized Officer of
each telephonic notice, if such confirmation is requested by the Administrative
Agent or any Lender. If the written confirmation differs in any material respect
from the action taken by the Administrative Agent and the Lenders, the records
of the Administrative Agent and the Lenders shall govern absent manifest error.
2.18 INTEREST PAYMENT DATES; INTEREST AND FEE BASIS.
Interest accrued on each Advance shall be payable on each Payment Date,
commencing with the first such date to occur after the date hereof, and at the
Facility Termination Date, whether by acceleration or otherwise. Interest
accrued on each LIBOR Advance shall also be payable on any date on which the
LIBOR Advance is prepaid (provided that nothing herein shall authorize a
prepayment which is not otherwise permitted hereunder). Interest and Commitment
Fees shall be calculated for actual days elapsed on the basis of a 360-day year.
Interest shall be payable for the day an Advance is made but not for the day of
any payment on the amount paid if payment is received prior to noon (Chicago
time) at the place of payment, unless such Advance is repaid on the date that it
was made. If any payment of principal of or interest on an Advance shall become
due on a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment, such extension
of time shall be included in computing interest in connection with such payment.
2.19 NOTIFICATION OF ADVANCES, INTEREST RATES AND PREPAYMENTS.
Promptly after receipt thereof (but in no event later than noon
(Chicago time) one Business Day prior to the proposed Borrowing Date for a Prime
Advance or the close of business three Business Days prior to the proposed
Borrowing Date for a LIBOR Advance) the Administrative Agent will notify each
Lender of the contents of each Borrowing Notice, Swing Line Borrowing Notice,
Conversion/Continuation Notice, and repayment notice received by it hereunder.
The Administrative Agent will notify each Lender and the Borrower of the
interest rate applicable to each LIBOR Advance promptly upon determination of
such interest rate and will give each Lender and the Borrower prompt notice of
each change in the Prime Rate and the Applicable Margin.
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2.20 LENDING INSTALLATIONS.
Each Lender may book its Loans at any Lending Installation selected by
such Lender and may change its Lending Installation from time to time. All terms
of this Agreement shall apply to any such Lending Installation and the Notes
shall be deemed held by each Lender for the benefit of such Lending
Installation. Each Lender may, by written or telex notice to the Administrative
Agent and the Borrower, designate a Lending Installation through which Loans
will be made by it and for whose account Loan payments are to be made.
2.21 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT.
Unless the Borrower or a Lender, as the case may be, notifies the
Administrative Agent prior to the date on which it is scheduled to make payment
to the Administrative Agent of (i) in the case of a Lender, the proceeds of a
Loan or (ii) in the case of the Borrower, a payment of principal, interest or
fees to the Administrative Agent for the account of the Lenders, that it does
not intend to make such payment, the Administrative Agent may assume that such
payment has been made. The Administrative Agent may, but shall not be obligated
to, make the amount of such payment available to the intended recipient in
reliance upon such assumption. If the Borrower has not in fact made such payment
to the Administrative Agent, the recipient of such payment shall, on demand by
the Administrative Agent, repay to the Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Effective Rate for such
day. If a Lender has not in fact made such payment to the Administrative Agent,
the Administrative Agent shall be entitled to recover such corresponding amount
on demand from such Lender together with interest thereon in respect of each day
during the period commencing on the date such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Effective Rate for such
date. If such Lender does not make such payment upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify the Borrower,
and the Borrower shall immediately pay such amount to the Administrative Agent
together with interest thereon in respect of each day during the period
commencing on the date such amount was so made available by the Administrative
Agent until the date the Administrative Agent recovers such amount at the rate
applicable to the relevant Loan. Nothing in this Section 2.21 shall be deemed to
relieve any Lender from its obligation to fulfill any portion of its Commitment
hereunder or to prejudice any rights which the Borrower may have against any
Lender as a result of any default by such Lender hereunder.
No Lender shall be responsible for any default by any other Lender in
its obligation to make Loans hereunder, and each Lender shall be obligated to
make the Loans provided to be made by it hereunder, regardless of the failure of
any other Lender to fulfill its Commitment hereunder.
2.22 VOLUNTARY REDUCTION OF AGGREGATE COMMITMENT AMOUNT.
Upon at least five (5) Business Days' prior irrevocable written notice
(or telephonic notice promptly confirmed in writing) to the Administrative
Agent, Borrower shall have the right, without premium or penalty, to permanently
reduce the Aggregate Commitment provided that (a) Borrower may not reduce the
Aggregate Commitment below the Allocated Facility
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Amount at the time of such requested reduction, (b) any such partial reduction
shall be in the minimum aggregate amount of Five Million Dollars (U.S.
$5,000,000.00) or any integral multiple of Five Million Dollars (U.S.
$5,000,000.00) in excess thereof and (c) Borrower may not reduce the Aggregate
Commitment to an amount less than One Hundred Million Dollars (U.S.
$100,000,000.00). Any reduction of the Aggregate Commitment shall be applied pro
rata to each Lender's Commitment.
2.23 INCREASE IN AGGREGATE COMMITMENT AMOUNT.
So long as no Default has occurred and is continuing, the Borrower
shall have the right from time to time to increase the Aggregate Commitment up
to a maximum of $400,000,000 by obtaining the Administrative Agent's prior
written approval and either adding new banks as Lenders or obtaining the
agreement, which shall be at such Lender's or Lenders' sole discretion, of one
or more of the then-current Lenders to increase its or their Commitments. Such
increases shall be evidenced by the execution and delivery of an Amendment
Regarding Increase in the form of Exhibit J attached hereto by the Borrower, the
Administrative Agent and the new bank or existing Lender providing such
additional Commitment, a copy of which shall be forwarded to each Lender by the
Administrative Agent promptly after execution thereof. On the effective date of
each such increase in the Aggregate Commitment, the Borrower and the
Administrative Agent shall cause the new or existing Lenders providing such
increase, by either funding more than its or their Percentage of new ratable
Advances made on such date or purchasing shares of outstanding ratable Loans
held by the other Lenders or a combination thereof, to hold its or their
Percentage of all ratable Advances outstanding at the close of business on such
day; provided that Borrower shall pay any selling Lender funding losses to the
same extent as would be required under Section 4.4 in respect of a prepayment.
The Lenders agree to cooperate in any required sale and purchase of outstanding
ratable Advances to achieve such result. In no event will such new or existing
Lenders providing the increase be required to fund or purchase a portion of any
Competitive Bid Loan or Swing Line Loan to comply with this Section on such
date. In no event shall the Aggregate Commitment exceed $400,000,000 without the
approval of all of the Lenders.
2.24 USURY.
This Agreement and the Note are subject to the express condition that
at no time shall Borrower be obligated or required to pay interest on the
principal balance of the Loan at a rate which could subject any Lender
(including the Swing Line Lender) to either civil or criminal liability as a
result of being in excess of the Maximum Legal Rate. If by the terms of this
Agreement or the Loan Documents, Borrower is at any time required or obligated
to pay interest on the principal balance due hereunder at a rate in excess of
the Maximum Legal Rate, the interest rate or the Default Rate, as the case may
be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all
previous payments in excess of the Maximum Legal Rate shall be deemed to have
been payments in reduction of principal and not on account of the interest due
hereunder. All sums paid or agreed to be paid to Lender for the use,
forbearance, or detention of the sums due under the Loan, shall, to the extent
permitted by applicable law, be amortized, prorated, allocated, and spread
throughout the full stated term of the Loan until payment in full so that the
rate or amount of interest on account of the Loan does not exceed the Maximum
Legal Rate of interest from time to time in effect and applicable to the Loan
for so long as the Loan is outstanding.
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2.25 APPLICATION OF MONEYS RECEIVED.
All moneys collected or received by the Administrative Agent on account
of the Facility directly or indirectly, shall be applied in the following order
of priority:
(i) to the payment of all reasonable costs incurred in the
collection of such moneys of which the Administrative Agent shall have
given notice to the Borrower;
(ii) to the reimbursement of any yield protection due to the
Lenders in accordance with Section 4.1;
(iii) to the payment of any fee due pursuant to Section 3.8(b) in
connection with the issuance of a Facility Letter of Credit to the
Issuing Bank, to the payment of the Facility Fee to the Lenders, if
then due, in accordance with their Percentages and to the payment of
the Administrative Agent's Fee to the Administrative Agent if then
due;
(iv) (a) in case the entire unpaid principal of the Facility
shall not have become due and payable, the whole amount received as
interest and Facility Letter of Credit Fee then due to the Lenders
(other than a Defaulting Lender) as their respective Percentages
appear (except to the extent there are Swing Line Loans or Competitive
Bid Loans outstanding in which event the full amount of interest
attributable to the Swing Line Loans and Competitive Bid Loans shall
be payable to the Swing Line Lender and Competitive Bid Lenders,
respectively, unless the Swing Line Lender or Competitive Bid Lender
shall be a Defaulting Lender), together with the whole amount, if any,
received as principal first to the Swing Line Lender, unless the Swing
Line Lender shall be a Defaulting Lender, to repay any outstanding
Swing Line Loans and then to the Lenders as their respective Funded
Percentages appear, or (b) in case the entire unpaid principal of the
Facility shall have become due and payable, as a result of a Default
or otherwise, to the payment of the whole amount then due and payable
on the Loan for principal, together with interest thereon at the
Default Rate or the interest rate, as applicable, to the Swing Line
Lender, unless the Swing Line Lender shall be a Defaulting Lender, for
all such amounts due in connection with Swing Line Loans and then to
the Lenders (other than a Defaulting Lender) as their respective
Funded Percentages appear until paid in full; and then to the Letter
of Credit Collateral Account until the full amount of Facility Letter
of Credit Obligations is on deposit therein; and
(v) to the payment of any sums due to each Defaulting Lender as
their respective Percentages appear (provided that Administrative
Agent shall have the right to set-off against such sums any amounts
due from such Defaulting Lender).
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ARTICLE III.
THE LETTER OF CREDIT SUBFACILITY
3.1 OBLIGATION TO ISSUE.
Subject to the terms and conditions of this Agreement and in reliance
upon the representations and warranties of the Borrower herein set forth, the
Issuing Bank hereby agrees to issue for the account of Borrower, one or more
Facility Letters of Credit in accordance with this Article III, from time to
time during the period ending on the Business Day prior to the Facility
Termination Date.
3.2 TYPES AND AMOUNTS.
The Issuing Bank shall not except with the prior written consent of all
Lenders:
(i) issue any Facility Letter of Credit if the aggregate maximum
amount then available for drawing under Letters of Credit issued by
such Issuing Bank, after giving effect to the Facility Letter of
Credit requested hereunder, shall exceed any limit imposed by law or
regulation upon such Issuing Bank provided, in such event, the
Borrower shall have the right to select (with the approval of the
alternate Issuing Bank but not the other Lenders) an alternate Issuing
Bank which shall be one of the Lenders;
(ii) issue any Facility Letter of Credit if, after giving effect
thereto, the aggregate Facility Letter of Credit Obligations would
exceed $20,000,000 or the Allocated Facility Amount would exceed the
Aggregate Commitment;
(iii) issue any Facility Letter of Credit having an expiration
date, or containing automatic extension provisions to extend such
date, to a date which is after the Business Day immediately preceding
the Facility Termination Date; or
(iv) issue any Facility Letter of Credit having an expiration
date which is more than fifteen (15) months after the date of its
issuance.
3.3 CONDITIONS.
In addition to being subject to the satisfaction of the conditions
contained in Section 5.2 hereof, the obligation of the Issuing Bank to issue any
Facility Letter of Credit is subject to the satisfaction in full of the
following conditions:
(i) the Borrower shall have delivered to the Issuing Bank at such
times and in such manner as the Issuing Bank may reasonably prescribe
such documents and materials as may be reasonably required pursuant to
the terms of the proposed Facility Letter of Credit (it being
understood that if any inconsistency exists between such documents and
the Loan Documents, the terms of the Loan Documents shall control) and
the proposed Facility Letter of Credit shall be reasonably
satisfactory to the Issuing Bank as to form and content;
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(ii) as of the date of issuance, no order, judgment or decree of
any court, arbitrator or governmental authority shall purport by its
terms to enjoin or restrain the Issuing Bank from issuing the
requested Facility Letter of Credit and no law, rule or regulation
applicable to the Issuing Bank and no request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over the Issuing Bank shall prohibit or request that the
Issuing Bank refrain from the issuance of Letters of Credit generally
or the issuance of the requested Facility Letter or Credit in
particular, provided, in such event, the Borrower shall have the right
to select an alternate Issuing Bank which shall be one of the Lenders;
and
(iii) there shall not exist any Default or Unmatured Default.
3.4 PROCEDURE FOR ISSUANCE OF FACILITY LETTERS OF CREDIT.
(a) Borrower shall give the Issuing Bank and the Administrative Agent
at least five (5) Business Days' prior written notice of any requested issuance
of a Facility Letter of Credit under this Agreement (a "Letter of Credit
Request") (except that, in lieu of such written notice, the Borrower may give
the Issuing Bank and the Administrative Agent telephonic notice of such request
if confirmed in writing by delivery to the Issuing Bank and the Administrative
Agent (i) by the close of business on such day (A) of a telecopy of the written
notice required hereunder which has been signed by an Authorized Officer, or (B)
of a telex containing all information required to be contained in such written
notice and (ii) promptly (but in no event later than the requested date of
issuance) of the written notice required hereunder containing the original
signature of an Authorized Officer); such notice shall specify:
1) the stated amount of the Facility Letter of Credit
requested (which stated amount shall not be less than $50,000);
2) the effective date (which day shall be a Business Day) of
issuance of such requested Facility Letter of Credit (the
"Issuance Date");
3) the date on which such requested Facility Letter of
Credit is to expire which date (exclusive of automatic extension
periods so long as the Facility Letter of Credit gives the
Issuing Bank the right to issue a notice that the expiration date
will not be extended) shall be a Business Day and shall in no
event be later than the earlier of fifteen months after the
Issuance Date and the Business Day immediately preceding the
Facility Termination Date;
4) the purpose for which such Facility Letter of Credit is
to be issued (such purpose shall comply with the requirements of
Section 7.2);
5) the Person for whose benefit the requested Facility
Letter of Credit is to be issued; and
6) any special language required to be included in the
Facility Letter of Credit.
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At the time such request is made, the Borrower shall also provide the
Administrative Agent and the Issuing Bank with a copy of the form of the
Facility Letter of Credit that the Borrower is requesting be issued, which shall
be subject to the reasonable approval of the Issuing Bank and Administrative
Agent. Such notice, to be effective, must be received by such Issuing Bank and
the Administrative Agent not later than 2:00 p.m. (Chicago time) on the last
Business Day on which notice can be given under this Section 3.4(a).
Administrative Agent shall promptly but in no event later than three (3)
Business Days prior to the Issuance Date give a copy of the Letter of Credit
Request to the other Lenders. Borrower shall also deliver the compliance
certificate required in Section 5.2 together with each Letter of Credit Request.
(b) Subject to the terms and conditions of this Article III and
provided that the applicable conditions set forth in Section 5.2 hereof have
been satisfied, such Issuing Bank shall, on the Issuance Date, issue a Facility
Letter of Credit on behalf of the Borrower in accordance with the Letter of
Credit Request and the Issuing Bank's usual and customary business practices
unless the Issuing Bank has actually received (i) written notice from the
Borrower specifically revoking the Letter of Credit Request with respect to such
Facility Letter of Credit, or (ii) written or telephonic notice from the
Administrative Agent stating that the issuance of such Facility Letter of Credit
would violate Section 3.2.
(c) The Issuing Bank shall give the Administrative Agent and the
Borrower written or telex notice, or telephonic notice confirmed promptly
thereafter in writing, of the issuance of a Facility Letter of Credit (the
"Issuance Notice") and Administrative Agent shall promptly give a copy of the
Issuance Notice to the other Lenders.
(d) The Issuing Bank shall not extend or amend any Facility Letter of
Credit (other than an automatic extension) unless the requirements of this
Section 3.4 are met as though a new Facility Letter of Credit was being
requested and issued.
3.5 REIMBURSEMENT OBLIGATIONS; DUTIES OF ISSUING BANK.
(a) The Issuing Bank shall promptly notify the Borrower and the
Administrative Agent of any draw under a Facility Letter of Credit, and the
Administrative Agent shall promptly notify the other Lenders that such draw has
occurred. Any such draw shall constitute an Advance of the Facility in the
amount of the Reimbursement Obligation with respect to such Facility Letter of
Credit and shall bear interest from the date of the relevant drawing(s) under
the pertinent Facility Letter of Credit at a rate selected by Borrower in
accordance with Section 2.10 hereof; provided that if any Default or an
Unmatured Default involving the payment of money exists at the time of any such
drawing(s), then the Borrower shall reimburse the Issuing Bank for drawings
under a Facility Letter of Credit issued by the Issuing Bank no later than the
next succeeding Business Day after the payment by the Issuing Bank and until
repaid such Reimbursement Obligation shall bear interest from the date funded at
the Default Rate.
(b) Any action taken or omitted to be taken by the Issuing Bank under
or in connection with any Facility Letter of Credit, if taken or omitted in the
absence of willful misconduct or gross negligence, shall not put the Issuing
Bank under any resulting liability to Borrower or any Lender or, provided that
such Issuing Bank has complied with the procedures specified in Section 3.4,
relieve a Lender of its obligations hereunder to the Issuing Bank. In
determining whether to pay under any Facility Letter of Credit, the Issuing Bank
shall have no
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obligation relative to the Lenders other than to confirm that any documents
required to be delivered under such Letter of Credit appear to have been
delivered in compliance, and that they appear to comply on their face, with the
requirements of such Letter of Credit.
3.6 PARTICIPATION.
(a) Immediately upon issuance by the Issuing Bank of any Facility
Letter of Credit in accordance with the procedures set forth in Section 3.4,
each Lender shall be deemed to have irrevocably and unconditionally purchased
and received from the Issuing Bank, without recourse, representation or
warranty, an undivided interest and participation equal to such Lender's
Percentage in such Facility Letter of Credit (including, without limitation, all
obligations of the Borrower with respect thereto) and any security therefor or
guaranty pertaining thereto. Each Lender's obligation to make further Loans to
the Borrower (other than any payments such Lender is required to make under
subparagraph (b) below) or issue any letters of credit on behalf of Borrower
shall be reduced by such Lender's Percentage of the undrawn portion of each
Facility Letter of Credit outstanding.
(b) In the event that the Issuing Bank makes any payment under any
Facility Letter of Credit and the Borrower shall not have repaid such amount to
the Issuing Bank pursuant to Section 3.7 hereof, the Issuing Bank shall promptly
notify the Administrative Agent, which shall promptly notify each Lender of the
same, and each Lender shall promptly and unconditionally pay to the
Administrative Agent for the account of the Issuing Bank the amount of such
Lender's Percentage of the unreimbursed amount of such payment, and the
Administrative Agent shall promptly pay such amount to the Issuing Bank.
Notwithstanding the foregoing, unless Borrower shall notify Administrative Agent
of Borrower's intent to repay the Reimbursement Obligation on the date of the
related drawing under any Facility Letter of Credit, such Reimbursement
Obligation shall simultaneously with such drawing be converted to and become a
Prime Loan as set forth in Section 2.10. The failure of any Lender to make
available to the Administrative Agent for the account of any Issuing Bank its
Percentage of the unreimbursed amount of any such payment shall not relieve any
other Lender of its obligation hereunder to make available to the Administrative
Agent for the account of such Issuing Bank its Percentage of the unreimbursed
amount of any payment on the date such payment is to be made, but no Lender
shall be responsible for the failure of any other Lender to make available to
the Administrative Agent its Percentage of the unreimbursed amount of any
payment on the date such payment is to be made. Any Lender which fails to make
any payment required pursuant to this Section 3.6(b) shall be deemed to be a
Defaulting Lender hereunder.
(c) If the Issuing Bank receives a payment on account of a
Reimbursement Obligation, including any interest thereon, the Issuing Bank shall
promptly pay to the Administrative Agent and the Administrative Agent shall
promptly pay to each Lender which has funded its participating interest therein,
in immediately available funds, an amount equal to such Lender's Percentage
thereof.
(d) Upon the request of the Administrative Agent or any Lender, an
Issuing Bank shall furnish to such Administrative Agent or Lender copies of any
Facility Letter of Credit to which that Issuing Bank is party and such other
documentation as may reasonably be requested by the Administrative Agent or
Lender.
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(e) The obligations of a Lender to make payments to the Administrative
Agent for the account of each Issuing Bank with respect to a Facility Letter of
Credit shall be absolute, unconditional and irrevocable, not subject to any
counterclaim, set-off, qualification or exception whatsoever other than a
failure of any such Issuing Bank to comply with the terms of this Agreement
relating to the issuance of such Facility Letter of Credit and shall be made in
accordance with the terms and conditions of this Agreement under all
circumstances.
3.7 PAYMENT OF REIMBURSEMENT OBLIGATIONS.
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Issuing Bank the amount of all Advances for Reimbursement
Obligations, interest and other amounts payable to such Issuing Bank under or in
connection with any Facility Letter of Credit when due irrespective of any
claim, set-off, defense or other right which the Borrower may have at any time
against any Issuing Bank or any other Person, under all circumstances, including
without limitation any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right
which the Borrower may have at any time against a beneficiary named in
a Facility Letter of Credit or any transferee of any Facility Letter
of Credit (or any Person for whom any such transferee may be acting),
the Administrative Agent, the Issuing Bank, any Lender, or any other
Person, whether in connection with this Agreement, any Facility Letter
of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transactions between the
Borrower and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented
under the Facility Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect of any statement therein being
untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) In the event any payment by the Borrower received by the Issuing
Bank or the Administrative Agent with respect to a Facility Letter of Credit and
distributed by the Administrative Agent to the Lenders on account of their
participations is thereafter set aside, avoided or recovered from the
Administrative Agent or the Issuing Bank in connection with any receivership,
liquidation, reorganization or bankruptcy proceeding, each Lender which received
such distribution shall, upon demand by the Administrative Agent, contribute
such Lender's Percentage of the amount set aside, avoided or recovered together
with interest at the rate required to be paid by the Issuing Bank or the
Administrative Agent upon the amount required to be repaid by the Issuing Bank
or the Administrative Agent.
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3.8 COMPENSATION FOR FACILITY LETTERS OF CREDIT.
(a) The Borrower shall pay to the Administrative Agent, for the ratable
account of the Lenders, based upon the Lenders' respective Percentages, a per
annum fee (the "Facility Letter of Credit Fee") with respect to each Facility
Letter of Credit that is equal to the LIBOR Applicable Margin in effect from
time to time. The Facility Letter of Credit Fee relating to any Facility Letter
of Credit shall be due and payable in arrears in equal installments on the first
Business Day of each month following the issuance of any Facility Letter of
Credit and, to the extent any such fees are then due and unpaid, on the Facility
Termination Date. The Administrative Agent shall promptly remit such Facility
Letter of Credit Fees, when paid, to the other Lenders in accordance with their
Percentages thereof. The Borrower shall not have any liability to any Lender for
the failure of the Administrative Agent to promptly deliver funds to any such
Lender and shall be deemed to have made all such payments on the date the
respective payment is made by the Borrower to the Administrative Agent, provided
such payment is received by the time specified in Section 2.16 hereof.
(b) The Issuing Bank also shall have the right to receive solely for
its own account an issuance fee of 0.15% of the face amount of each Facility
Letter of Credit, payable by the Borrower on the Issuance Date for each such
Facility Letter of Credit. The Issuing Bank shall also be entitled to receive
its reasonable out-of-pocket costs and the Issuing Bank's standard charges of
issuing, amending and servicing Facility Letters of Credit and processing draws
thereunder.
3.9 LETTER OF CREDIT COLLATERAL ACCOUNT.
The Borrower hereby agrees that it will, if required pursuant to
Section 9.1, maintain a special collateral account (the "Letter of Credit
Collateral Account") at the Administrative Agent's office at the address
specified pursuant to Section 14.1, in the name of the Borrower but under the
sole dominion and control of the Administrative Agent, for the benefit of the
Lenders, and in which the Borrower shall have no interest other than as set
forth in Section 9.1. Such Letter of Credit Collateral Account shall be funded
to the extent required by Section 9.1. In addition to the foregoing, the
Borrower hereby grants to the Administrative Agent, for the benefit of the
Lenders, a properly perfected security interest in and to the Letter of Credit
Collateral Account, any funds that may hereafter be on deposit in such account
and the proceeds thereof.
ARTICLE IV.
YIELD PROTECTION; TAXES
4.1 YIELD PROTECTION. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
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(i) subjects any Lender or any applicable Lending Installation to
any Taxes, or changes the basis of taxation of payments (other than
with respect to Excluded Taxes) to any Lender in respect of its LIBOR
Loans, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation (other
than reserves and assessments taken into account in determining the
interest rate applicable to LIBOR Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining its LIBOR Loans or reduces any
amount receivable by any Lender or any applicable Lending Installation
in connection with its LIBOR Loans, or requires any Lender or any
applicable Lending Installation to make any payment calculated by
reference to the amount of LIBOR Loans held or interest received by
it, by an amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its LIBOR Loans or
Commitment or issuing or participating in Facility Letters of Credit, or to
reduce the return received by such Lender or applicable Lending Installation in
connection therewith, then, within 15 days of demand by such Lender, the
Borrower shall pay such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction in amount received.
4.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender reasonably
determines the amount of capital required or expected to be maintained by such
Lender, any Lending Installation of such Lender or any corporation controlling
such Lender is increased as a result of a Change (as hereinafter defined), then,
within 15 days of written demand by such Lender, the Borrower shall pay such
Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender determines is
attributable to this Agreement, its Loans, its interest in the Facility Letters
of Credit, or its Commitment to make Loans hereunder or participate in or issue
Facility Letters of Credit (after taking into account such Lender's policies as
to capital adequacy). "Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of or change
in any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of law)
after the date of this Agreement which affects the amount of capital required or
expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "Risk-Based Capital Guidelines" means (i)
the risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
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4.3 AVAILABILITY OF TYPES OF ADVANCES. If any Lender determines that
maintenance of its LIBOR Loans at a suitable Lending Installation would violate
any applicable law, rule, regulation, or directive, whether or not having the
force of law, or if the Required Lenders determine that (i) deposits of a type
and maturity appropriate to match fund LIBOR Advances are not available or (ii)
the interest rate applicable to LIBOR Advances does not accurately reflect the
cost of making or maintaining LIBOR Advances, then the Administrative Agent
shall suspend the availability of LIBOR Advances and require any affected LIBOR
Advances to be repaid or converted to Prime Rate Advances, subject to the
payment of any funding indemnification amounts required by Section 4.4.
4.4 FUNDING INDEMNIFICATION. If any payment of a LIBOR Advance occurs on
a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise, or a LIBOR Advance is not made
on the date specified by the Borrower for any reason other than default by the
Lenders, the Borrower will indemnify each Lender for any loss or cost incurred
by it resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such LIBOR
Advance.
4.5 TAXES.
(i) All payments by the Borrower to or for the account of any
Lender or the Administrative Agent hereunder or under any Note shall
be made free and clear of and without deduction for any and all
Taxes. If the Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder to any Lender
or the Administrative Agent, (a) the sum payable shall be increased
as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section
4.5) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no
such deductions been made, (b) the Borrower shall make such
deductions, (c) the Borrower shall pay the full amount deducted to
the relevant authority in accordance with applicable law and (d) the
Borrower shall furnish to the Administrative Agent the original copy
of a receipt evidencing payment thereof within 30 days after such
payment is made.
(ii) In addition, the Borrower hereby agrees to pay any
present or future stamp or documentary taxes and any other excise or
property taxes, charges or similar levies which arise from any
payment made hereunder or under any Note or from the execution or
delivery of, or otherwise with respect to, this Agreement or any
Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the
Administrative Agent and each Lender for the full amount of Taxes or
Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed on amounts payable under this Section 4.5) paid by the
Administrative Agent or such Lender and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within
30 days of the date the Administrative Agent or such Lender makes
demand therefor pursuant to Section 4.6.
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(iv) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof (each a "Non-U.S.
Lender") agrees that it will, not more than ten Business Days after
the date of this Agreement, (i) deliver to each of the Borrower and
the Administrative Agent two duly completed copies of United States
Internal Revenue Service Form W-8BEN or W-8ECI, certifying in either
case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States
federal income taxes, and (ii) deliver to each of the Borrower and
the Administrative Agent a United States Internal Revenue Form W-8
or W-9, as the case may be, and certify that it is entitled to an
exemption from United States backup withholding tax. Each Non-U.S.
Lender further undertakes to deliver to each of the Borrower and the
Administrative Agent (x) renewals or additional copies of such form
(or any successor form) on or before the date that such form expires
or becomes obsolete, and (y) after the occurrence of any event
requiring a change in the most recent forms so delivered by it, such
additional forms or amendments thereto as may be reasonably requested
by the Borrower or the Administrative Agent. All forms or amendments
described in the preceding sentence shall certify that such Lender is
entitled to receive payments under this Agreement 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 or amendment with respect to it and
such Lender advises the Borrower and the Administrative Agent that
it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed
to provide the Borrower with an appropriate form pursuant to clause
(iv), above (unless such failure is due to a change in treaty, law or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, occurring subsequent to the
date on which a form originally was required to be provided), such
Non-U.S. Lender shall not be entitled to indemnification under this
Section 4.5 with respect to Taxes imposed by the United States;
PROVIDED that, should a Non-U.S. Lender which is otherwise exempt from
or subject to a reduced rate of withholding tax become subject to
Taxes because of its failure to deliver a form required under clause
(iv), above, the Borrower shall take such steps as such Non-U.S.
Lender shall reasonably request to assist such Non-U.S. Lender to
recover such Taxes. If a Non-U.S. Lender recovers Taxes that were
previously paid by Borrower on behalf of such Non-U.S. Lender, then
such recovered amount shall be paid to Borrower.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant jurisdiction
or any treaty shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed
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documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or
any political subdivision thereof asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid
to or for the account of any Lender (because the appropriate form was
not delivered or properly completed, because such Lender failed to
notify the Administrative Agent of a change in circumstances which
rendered its exemption from withholding ineffective, or for any other
reason), such Lender shall indemnify the Administrative Agent fully
for all amounts paid, directly or indirectly, by the Administrative
Agent as tax, withholding therefor, or otherwise, including penalties
and interest, and including taxes imposed by any jurisdiction on
amounts payable to the Administrative Agent under this subsection,
together with all costs and expenses related thereto (including
attorneys fees and time charges of attorneys for the Administrative
Agent, which attorneys may be employees of the Administrative Agent).
The obligations of the Lenders under this Section 4.5(vii) shall
survive the payment of the Obligations and termination of this
Agreement.
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4.6 LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its LIBOR Loans to reduce any liability of the Borrower to such
Lender under Sections 4.1, 4.2 and 4.5 or to avoid the unavailability of LIBOR
Advances under Section 4.3, so long as such designation is not, in the judgment
of such Lender, disadvantageous to such Lender. Each Lender shall deliver a
written statement of such Lender to the Borrower (with a copy to the
Administrative Agent) as to the amount due, if any, under Section 4.1, 4.2, 4.4
or 4.5. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a LIBOR
Loan shall be calculated as though each Lender funded its LIBOR Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit used
as a reference in determining the LIBOR Rate applicable to such Loan, whether in
fact that is the case or not. Unless otherwise provided herein, the amount
specified in the written statement of any Lender shall be payable on demand
after receipt by the Borrower of such written statement. The obligations of the
Borrower under Sections 4.1, 4.2, 4.4 and 4.5 shall survive payment of the
Obligations and termination of this Agreement for a period of one year.
4.7 LIMITATION ON BORROWER'S LIABILITY. The Borrower shall not be
obligated to compensate any Lender pursuant to Section 4.1, 4.2 or 4.4 for any
amounts attributable to a period more than one year prior to such Lender's
written notice under Section 4.6 of its intention to seek compensation under
Section 4.1, 4.2 or 4.4.
ARTICLE V.
CONDITIONS PRECEDENT
5.1 INITIAL ADVANCE.
The Lenders shall not be required to make the initial Advance hereunder
unless (a) the Borrower shall have paid all fees then due and payable to the
Lenders, and the Administrative Agent hereunder, and (b) the Borrower shall have
furnished to the Administrative Agent, in form and substance satisfactory to the
Lenders and their counsel and with sufficient copies for the Lenders, the
following:
(i) The duly executed originals of the Loan
Documents, including the Notes, payable to the order of each
of the Lenders, and this Agreement;
(ii) Certified copies of the articles of
incorporation, limited partnership certificate, limited
liability company agreement, declaration of trust or other
organizational document of the Borrower, each Subsidiary and
each Qualifying Investment Affiliate and Special Qualifying
Investment Affiliate, to the extent applicable, with all
amendments and certified by the appropriate governmental
officer of the state of organization as of a recent date;
(iii) Certificates of good standing for the Borrower,
each Subsidiary and each Qualifying Investment Affiliate and
Special Qualifying Affiliate certified by the appropriate
governmental officer of the state of organization, and
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foreign qualification certificates for the Borrower,
certified by the appropriate governmental officer, for each
jurisdiction where an Unencumbered Asset is located and each
other jurisdiction where the failure to so qualify or be
licensed (if required) would have a Material Adverse Effect;
(iv) Copies, certified by an officer of the
Borrower, each Subsidiary and each Qualifying Investment
Affiliate and Special Qualifying Investment Affiliate of its
by-laws, partnership agreement, operating agreement or similar
document, to the extent applicable together with all
amendments thereto;
(v) An incumbency certificate, executed by an
officer of the Borrower, which shall identify by name and
title and bear the signature of the Persons authorized to sign
the Loan Documents and to make borrowings hereunder on behalf
of the Borrower, upon which certificate the Administrative
Agent and the Lenders shall be entitled to rely until informed
of any change in writing by the Borrower;
(vi) Copies, certified by the Secretary or Assistant
Secretary, of the Borrower's Board of Directors' resolutions
(and resolutions of other bodies, if any are deemed
necessary by counsel for any Lender) authorizing the
Advances provided for herein and the execution, delivery and
performance of the Loan Documents to be executed and
delivered by the Borrower hereunder;
(vii) A written opinion of the Borrower's counsel,
addressed to the Lenders in form satisfactory to Administrative
Agent;
(viii) A certificate, signed by an officer of the
Borrower, stating that on the Closing Date and on the initial
Borrowing Date no Default or Unmatured Default has occurred and
is continuing and that all representations and warranties of
the Borrower contained herein are true and correct as of the
Closing Date and initial Borrowing Date as and to the extent
set forth herein;
(ix) The most recent financial statements of the
Borrower and a certificate from an Authorized Officer of the
Borrower that no change in the Borrower's financial condition
that would have a Material Adverse Effect has occurred since
December 31, 1999;
(x) UCC financing statement, judgment, and tax lien
searches with respect to the Borrower, any Subsidiary, any
Qualifying Investment Affiliate and any Special Qualifying
Investment Affiliate from the States of Maryland and Illinois
and other states where they own Unencumbered Assets, and the
county in which Borrower maintains its principal place of
business;
(xi) Evidence of sufficient Unencumbered Assets
(which evidence may include pay-off letters (together with
evidence of payment or a direction of Borrower to use a portion
of the proceeds of the Advances to repay such Indebtedness),
mortgage releases and/or title policies) to assist the
Administrative Agent in determining the Borrower's compliance
with the covenants set forth in Article VII herein;
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(xii) Written money transfer instructions, in
substantially the form of Exhibit G hereto, addressed to the
Administrative Agent and signed by an Authorized Officer,
together with such other related money transfer authorizations
as the Administrative Agent may have reasonably requested;
(xiii) Evidence that all parties whose consent is
required for Borrower to execute the Loan Documents have
provided such consents;
(xiv) Operating statements for each Property and other
evidence of income and expenses to assist the Administrative
Agent in determining Borrower's compliance with the
covenants set forth in Article VII herein;
(xv) A copy of the standard lease form generally used
at the Properties;
(xvi) Evidence that the insurance coverage required in
Section 6.17 is in full force and effect; and
(xvii) Such other documents as any Lender or its
counsel may have reasonably requested, the form and substance
of which documents shall be acceptable to the parties and their
respective counsel.
5.2 CONDITIONS TO EACH ADVANCE, ISSUANCE OF FACILITY LETTER OF
CREDIT AND CONTINUATION/CONVERSION.
The following conditions must be satisfied as a condition precedent to the
making of an Advance (including Swing Line Loans but not including Revolving
Loans made for the purpose of repaying Swing Line Loans as provided in Section
2.,13), the issuance of a Facility Letter of Credit, or the continuation of a
LIBOR Advance or conversion of an existing Advance into a LIBOR Advance:
(i) There exists no Default or Unmatured Default;
(ii) The representations and warranties contained in
Article VI are true and correct as of such Borrowing Date,
Issuance Date, or date of conversion and/or continuation as
and to the extent set forth therein, except to the extent
any such representation or warranty is stated to relate
solely to an earlier date, in which case such
representation or warranty shall be true and correct on
and as of such earlier date and except for Property
Breaches, in which case the compliance certificate shall
contain a calculation of the financial covenants with and
without including the Property with respect to which there
is a Property Breach and demonstrate compliance with such
covenants both with and without inclusion of such
Property; and
(iii) All legal matters incident to the making of such
Advance shall be reasonably satisfactory to the Lenders and
their counsel.
Each Borrowing Notice, Swing Line Borrowing Notice, Letter of Credit
Request, and Conversion/Continuation Notice shall constitute a representation
and warranty by the Borrower that the conditions contained in Sections 5.2(i)
and (ii) have been satisfied. Borrower shall also
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furnish a duly completed compliance certificate in substantially the form of
Exhibit E hereto (including all schedules or exhibits if applicable) as a
condition to making an Advance or issuing a Facility Letter of Credit; provided
that although the covenants in Section 7.21 must be satisfied at all times (and
any deviations therefrom noted on the compliance certificate) the detailed
calculations contained in Schedule I of the compliance certificate shall be
based on the most recent quarterly information available.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that as of the date
hereof, and as of each Borrowing Date, Issuance Date and each conversion and/or
continuation (except as otherwise disclosed to and approved by the Required
Lenders):
6.1 EXISTENCE.
It is duly organized, validly existing and in good standing under the
laws of the State of Maryland, with its principal place of business in Oakbrook,
Illinois, and is duly qualified as a foreign trust, properly licensed (if
required), in good standing and has all requisite authority to conduct its
business in each jurisdiction in which the laws of such jurisdiction requires it
to be so qualified, except where the failure to be so qualified or to obtain
such authority would not have a Material Adverse Effect. Each of its
Subsidiaries and Investment Affiliates is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization and has all
requisite authority to conduct its business in each jurisdiction in which it
owns Property, and except where the failure to be so qualified or to obtain such
authority would not have a Material Adverse Effect, in each other jurisdiction
in which it conducts business.
6.2 AUTHORIZATION AND VALIDITY.
It has the power and authority and legal right to execute and deliver
the Loan Documents and to perform its obligations thereunder. The execution and
delivery by it of the Loan Documents and the performance of its obligations
thereunder have been duly authorized by proper proceedings, and the Loan
Documents constitute legal, valid and binding obligations of the Borrower
enforceable against it in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
6.3 NO CONFLICT; GOVERNMENT CONSENT.
Neither the execution and delivery by it of the Loan Documents, nor the
consummation of the transactions therein contemplated, nor compliance with the
provisions thereof will violate in any material respect any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on,
respectively, the Borrower or any of its Subsidiaries, Qualifying Investment
Affiliates or Special Qualifying Investment Affiliates or any of such entities'
articles of incorporation, by-laws, certificate of limited partnership,
partnership agreement or operating agreement, as the case may be, or the
provisions of any indenture, declaration of trust, instrument
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or agreement to which any entity is a party or is subject, or by which it, or
its Property, is bound, or conflict with or constitute a default thereunder, or
result in the creation or imposition of any Lien in, of or on the Property of
such entity pursuant to the terms of any such indenture, instrument or
agreement. No order, consent, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, any governmental
or public body or authority, or any subdivision thereof, is required to
authorize, or is required in connection with the execution, delivery and
performance of, or the legality, validity, binding effect or enforceability of,
any of the Loan Documents.
6.4 FINANCIAL STATEMENTS; MATERIAL ADVERSE CHANGE.
The most recent consolidated financial statements of the Borrower and
its Subsidiaries delivered to the Lenders prior to the date that this
representation is made were prepared in accordance with GAAP in effect on the
date such statements were prepared and fairly present the consolidated financial
condition and operations of the Borrower and its Subsidiaries at such date and
the consolidated results of their operations for the period then ended. Since
the date of such financial statements, there has been no change in the business,
Property, results of operations or financial condition of the Borrower and its
Subsidiaries which have or could be reasonably expected to have a Material
Adverse Effect.
6.5 TAXES.
It, its Subsidiaries, and its Qualifying Investment Affiliates and
Special Qualifying Investment Affiliates, have filed all United States federal
tax returns and all other tax returns which are required to be filed and have
paid all taxes due pursuant to said returns or pursuant to any assessment
received by, respectively, the Borrower, any of its Subsidiaries, or any
Qualifying Investment Affiliate or Special Qualifying Investment Affiliate,
except such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided. No tax liens have been filed and no claims
are being asserted with respect to any such taxes. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries and to Borrower's
knowledge, its Qualifying Investment Affiliates and Special Qualifying
Investment Affiliates in respect of any taxes or other governmental charges are
adequate.
6.6 LITIGATION AND CONTINGENT OBLIGATIONS.
Except as set forth on Schedule 7, there is no litigation, arbitration,
governmental investigation or proceeding pending or, to the knowledge of any of
its officers, threatened in a writing received by Borrower, a Subsidiary, a
Qualifying Investment Affiliate or a Special Qualifying Investment Affiliate,
against or affecting the Borrower or any of its Subsidiaries or Investment
Affiliates which, if adversely determined, would have a Material Adverse Effect.
Except as disclosed on Schedule 8, it has no material contingent obligations not
provided for or disclosed in the financial statements referred to in Section
7.1, which would have or could be reasonably expected to have a Material Adverse
Effect.
6.7 SUBSIDIARIES.
Schedule 1 hereto contains an accurate list of all of the presently
existing Subsidiaries and Investment Affiliates of Borrower, setting forth their
respective jurisdictions of formation, the percentage of their respective
Capital Stock owned by it or its Subsidiaries, the percentage
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economic interest in such entity, Properties owned and a description or its
business and with respect to Investment Affiliates, whether such Investment
Affiliate constitutes a Qualifying Investment Affiliate or Special Qualifying
Investment Affiliate. All of the issued and outstanding shares of Capital Stock
of such Subsidiaries and, to Borrower's knowledge, such Investment Affiliates
have been duly authorized and issued and are fully paid and non-assessable.
6.8 ERISA.
The Unfunded Liabilities of all Single Employer Plans do not in the
aggregate exceed $1,000,000. Neither the Borrower nor any other member of the
Controlled Group has incurred any withdrawal liability to Multiemployer Plans in
excess of $250,000 in the aggregate. If withdrawals from all Multiemployer Plans
occurred, the liability would not exceed $250,000. Each Plan and, to Borrower's
knowledge, each Multiemployer Plan, complies in all material respects with all
applicable requirements of law and regulations and Borrower and all members of
the Controlled Group have complied in all material respects with ERISA and the
Code with respect to each Plan. No Reportable Event has occurred with respect to
any Plan, neither the Borrower nor any other member of the Controlled Group has
withdrawn from any Plan or Multiemployer Plan or initiated steps to do so, and
no steps have been taken to reorganize or terminate any Plan or to Borrower's
knowledge Multiemployer Plan. Neither Borrower nor any member of the Controlled
Group has any Plans or is a party to any collective bargaining agreements other
than those listed on Schedule 4. There is no accumulated funding deficiency (as
defined in Section 412 of the Code or Section 302 of ERISA) outstanding which
could reasonably be expected to have a Material Adverse Effect, there is no lien
outstanding under Section 412 of the Code or Section 302 of ERISA with respect
to assets of Borrower or any member of the Controlled Group and no requirement
to provide security under Section 401(a)(29) of the Code or Section 307 of ERISA
has been or is reasonably expected to be imposed on assets of Borrower or any
member of the Controlled Group. No liability to the PBGC or the Internal Revenue
Service with respect to any Plan or Multiemployer Plan or trust related thereto
has been or is reasonably expected to be incurred by Borrower or any member of
the Controlled Group which could reasonably be expected to have a Material
Adverse Effect. Neither Borrower nor any member of the Controlled Group has any
contingent liability with respect to any post-retirement benefits under any
"welfare plan" (as defined in Section 3(1) of ERISA) nor withdrawal liability or
exit fee or charge with respect to any such post-retirement benefits under any
welfare plan which could reasonably be expected to have a Material Adverse
Effect. Throughout the term of the Loan, Borrower is not and will not be an
"employee benefit plan" as defined in Section 3(32) of ERISA or a "governmental
plan" within the meaning of Section 3(3) of ERISA, none of the assets of
Borrower neither will constitute "plan assets" of one nor more plans for
purposes of Title I of ERISA and Borrower will not be subject to state statutes
applicable to Borrower regulating investments and fiduciary obligations with
respect to governmental plans.
6.9 ACCURACY OF INFORMATION.
All factual information heretofore or contemporaneously furnished by or on
behalf of Borrower or any of its Subsidiaries or Investment Affiliates to the
Administrative Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of Borrower
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or any of its Subsidiaries or Investment Affiliates to the Administrative Agent
or any Lender will be, true and accurate (taken as a whole) on the date as of
which such information is dated or certified and not incomplete by omitting to
state any material fact necessary to make such information (taken as a whole)
not misleading at such time. There are no facts, events or conditions directly
and specifically affecting Borrower, its Subsidiaries or any Investment
Affiliate known to Borrower and not disclosed to Administrative Agent or not
disclosed in the information furnished by or on behalf of Borrower, its
Subsidiaries or Investment Affiliates, which, in the aggregate, have or could be
reasonably expected to have a Material Adverse Effect.
6.10 REGULATION U.
It does not hold any margin stock (as defined in Regulation U).
6.11 MATERIAL AGREEMENTS.
Neither it nor any Subsidiary, Qualifying Investment Affiliate or
Special Qualifying Investment Affiliate is in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in (i) any agreement to which it is a party, which default could have
a Material Adverse Effect, or (ii) except as disclosed on Schedule 9 any
agreement or instrument evidencing or governing Indebtedness.
6.12 COMPLIANCE WITH LAWS.
Except as set forth in Schedule 6 it and its Subsidiaries, Qualifying
Investment Affiliates and Special Qualifying Investment Affiliates have complied
in all material respects, to Borrower's knowledge, with all applicable statutes,
rules, regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof, having jurisdiction over
the conduct of their respective businesses or the ownership of their respective
Property except where such non-compliance would not have a Material Adverse
Effect. Except as disclosed on Schedule 6, neither Borrower, any Subsidiary, or
any Qualifying Investment Affiliate or Special Qualifying Investment Affiliate,
has received any written notice to the effect that its operations are not in
material compliance with any of the requirements of applicable federal, state
and local environmental, health and safety statutes and regulations or the
subject of any federal or state remedial action responding to a release of any
toxic or hazardous waste or substance into the environment, which non-compliance
or remedial action could have a Material Adverse Effect.
6.13 OWNERSHIP OF PROPERTIES.
On the date of this Agreement, Borrower and its Subsidiaries,
Qualifying Investment Affiliates and Special Qualifying Investment Affiliates
will have good title, free of all Liens other than Permitted Liens, to all of
the Property and assets reflected in the financial statements as owned by it and
as set forth on Schedule 2.
6.14 INVESTMENT COMPANY ACT.
Neither Borrower nor any Subsidiary is an "investment company" or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
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6.15 PUBLIC UTILITY HOLDING COMPANY ACT.
Neither Borrower nor any Subsidiary 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.
6.16 SOLVENCY.
(i) Immediately after the Closing Date and immediately
following the making of each Loan and after giving effect to
the application of the proceeds of such Loans, (a) the fair
value of the assets of the Borrower and its Subsidiaries on
a consolidated basis, at a fair valuation, will exceed the
debts and liabilities, subordinated, contingent or otherwise,
of the Borrower and its Subsidiaries on a consolidated basis;
(b) the present fair saleable value of the Property of the
Borrower and its Subsidiaries on a consolidated basis will be
greater than the amount that will be required to pay the
probable liability of the Borrower and its Subsidiaries on a
consolidated basis on their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) the Borrower and
its Subsidiaries on a consolidated basis will be able to pay
their debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and
matured; and (d) the Borrower and its Subsidiaries on a
consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged
as such businesses are now conducted and are proposed to be
conducted after the date hereof.
(ii) It does not intend to, or to permit any of its
Subsidiaries to incur debts beyond its ability to pay such
debts as they mature, taking into account the timing of and
amounts of cash to be received by it or any such Subsidiary
and the timing of the amounts of cash to be payable on or in
respect of its Indebtedness or the Indebtedness of any such
Subsidiary.
6.17 INSURANCE.
It and its Subsidiaries and the Qualifying Investment Affiliates and
Special Qualifying Investment Affiliates carry insurance on their Properties
with financially sound and reputable insurance companies, in such amounts, with
such deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar projects in localities where it
and its Subsidiaries and the Qualifying Investment Affiliates and Special
Qualifying Investment Affiliates operate, including, without limitation:
(i) Property and casualty insurance (including coverage
for flood and other water damage for any Property located in
an area identified by the Secretary of Housing and Urban
Development or any successor thereto as an area having
special flood hazards pursuant to the National Flood
Insurance Act of 1968 or the Flood Disaster Protection Act
of 1973, as amended, or any successor law) in the amount of
100% of the replacement cost of the improvements at the
Property with a waiver of depreciation;
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(ii) Loss of rental income insurance in the amount not
less than one year's gross revenues from the Properties; and
(iii) Comprehensive general liability insurance in the
amount of $20,000,000 per occurrence.
6.18 NYSE AND REIT STATUS.
The Borrower's common shares of beneficial interest are listed on the
New York Stock Exchange and there is no proceeding pending to delist the
Borrower's common shares of beneficial interest, and the Borrower is qualified
as a real estate investment trust and currently is in compliance with all
applicable provisions of the Code.
6.19 ENVIRONMENTAL MATTERS.
Except as disclosed in Schedule 5, each of the following
representations and warranties is true and correct except to the extent that the
facts and circumstances giving rise to any such failure to be so true and
correct, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect:
(i) To the knowledge of the Borrower, the Properties of
Borrower, its Subsidiaries, Qualifying Investment Affiliates
and Special Qualifying Investment Affiliates do not contain,
any Materials of Environmental Concern in amounts or
concentrations which constitute a violation of, or could
reasonably give rise to liability under, Environmental Laws.
(ii) To the knowledge of Borrower, the Properties of
Borrower and its Subsidiaries and Investment Affiliates and
all operations at the Properties are in compliance with all
applicable Environmental Laws, and there is no contamination
at or under such Properties, or violation of any
Environmental Law with respect to such Properties for which
Borrower, its Subsidiaries or Investment Affiliates is or
could be liable.
(iii) Neither Borrower nor any of its Subsidiaries,
Qualifying Investment Affiliates or Special Qualifying
Investment Affiliates has received any written notice of
violation, alleged violation, non-compliance, liability or
potential liability regarding Environmental Laws with regard
to any of the Properties, nor does it have knowledge that
any such notice will be received or is being threatened.
(iv) To the knowledge of Borrower, Materials of
Environmental Concern have not been transported or disposed
of from the Properties of Borrower and its Subsidiaries,
Qualifying Investment Affiliates and Special Qualifying
Investment Affiliates in violation of, or in a manner or to
a location which could reasonably give rise to liability of
Borrower, any Subsidiary, or any Qualifying Investment
Affiliate or Special Qualifying Investment Affiliate under,
Environmental Laws, nor have any Materials of Environmental
Concern been generated, treated, stored or disposed of at,
on or under any of such Properties in violation of, or in a
manner that could give rise to liability of Borrower, any
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Subsidiary or any Qualifying Investment Affiliate or Special
Qualifying Affiliate under, any applicable Environmental Laws.
(v) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of
Borrower, threatened, under any Environmental Law to which
Borrower, any of its Subsidiaries, or any Qualifying
Investment Affiliate or Special Qualifying Investment
Affiliate, is named as a party with respect to the
Properties of such entity, nor are there any consent decrees
or other decrees, consent orders, administrative order or
other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with
respect to such Properties for which Borrower, its
Subsidiaries, any Qualifying Investment Affiliate or any
Special Qualifying Affiliate is or could be liable.
(vi) To the knowledge of Borrower, there has been no
release or threat of release of Materials of Environmental
Concern at or from the Properties of Borrower and its
Subsidiaries, Qualifying Investment Affiliates and Special
Qualifying Investment Affiliates, or arising from or related
to the operations of such entity in connection with the
Properties in violation of or in amounts or in a manner that
could give rise to liability under Environmental Laws.
6.20 LICENSES, ETC.
Borrower, its Subsidiaries, Qualifying Investment Affiliates or Special
Qualifying Investment Affiliates have obtained and hold in full force and
effect, all material trademarks, trade names, copyrights, licenses, permits,
certificates, authorizations, qualifications, accreditations, easements, rights
of way and other rights, consents and approvals which are necessary for the
operation of the Properties.
6.21 JUDGMENTS.
There are no judgments, decrees, or orders of any kind against
Borrower, its Subsidiaries, Qualifying Investment Affiliates or any Special
Qualifying Investment Affiliates unpaid of record which would have a Material
Adverse Effect.
6.22 PROPERTY MANAGER.
As of the date hereof, the manager of each Property is the Borrower or
a Qualifying Investment Affiliate.
6.23 UPDATED SCHEDULES.
The Borrower may at any time and from time to time update any Schedule
to this Agreement by delivery to the Administrative Agent of a revised Schedule
and, from and after the date of delivery of such updated Schedule to the
Administrative Agent, and its approval by the Required Lenders, the
representations and warranties of the Borrower hereunder shall be deemed to
reflect such revised Schedule.
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6.24 UNENCUMBERED ASSETS.
Schedule 2 hereto contains a complete and accurate description of
Unencumbered Assets as of the Closing Date and as supplemented from time to time
including the entity that owns each Unencumbered Asset. With respect to each
Property identified from time to time as an Unencumbered Asset, Borrower hereby
represents and warrants as follows except to the extent disclosed in writing to
the Lenders and approved by the Required Lenders (which approval shall not be
unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Asset is
located in an area identified by the Secretary of Housing and Urban Development
or any successor thereto as an area having special flood hazards pursuant to the
National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of
1973, as amended, or any successor law, or, if located within any such area,
Borrower or the respective Qualifying Investment Affiliate or Special Qualifying
Investment Affiliate has obtained and will maintain the insurance prescribed in
Section 6.17 hereof.
(b) To the Borrower's knowledge, Borrower or the respective
Qualifying Investment Affiliate or Special Qualifying Investment Affiliate has
obtained all material certificates, licenses and other approvals, governmental
and otherwise, necessary for the operation of the Unencumbered Asset and the
conduct of its business and all required zoning, building code, land use,
environmental and other similar permits or approvals which it is required to
maintain, all of which are in full force and effect as of the date hereof and
not subject to revocation, suspension, forfeiture or modification.
(c) To the Borrower's knowledge, the Unencumbered Asset and the
present use and occupancy thereof are in material compliance with all applicable
zoning ordinances (without reliance upon adjoining or other properties),
building codes, land use and Environmental Laws, laws relating to the disabled
including, but not limited to, the Americans with Disabilities Act to the extent
applicable, and other similar laws ("Applicable Laws"), except to the extent
such non-compliance could not reasonably be expected to have a Material Adverse
Effect.
(d) The Unencumbered Asset is served by all utilities required
for the current or contemplated use thereof. All utility service is provided by
public utilities and the Unencumbered Asset has accepted or is equipped to
accept such utility service.
(e) All public roads and streets necessary for service of and
access to the Unencumbered Asset for the current or contemplated use thereof
have been completed, are serviceable and all-weather and are physically and
legally open for use by the public.
(f) The Unencumbered Asset is served by public water and sewer
systems or, if the Unencumbered Asset is not serviced by a public water and
sewer system, such alternate systems are adequate and meet, in all material
respects, all requirements and regulations of, and otherwise complies in all
material respects with, all Applicable Laws with respect to such alternate
systems.
(g) Borrower is not aware of any material latent or patent
structural or other significant deficiency of the Unencumbered Asset. The
Unencumbered Asset is free of damage
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and waste that would materially and adversely affect the value of the
Unencumbered Asset, is in good repair and there is no deferred maintenance other
than ordinary wear and tear. The Unencumbered Asset is free from damage caused
by fire or other casualty. There is no pending or, to the actual knowledge of
Borrower threatened condemnation proceedings affecting the Unencumbered Asset,
or any part thereof.
(h) To Borrower's knowledge, all liquid and solid waste
disposal, septic and sewer systems located on the Unencumbered Asset are in a
good and safe condition and repair and to Borrower's knowledge, in material
compliance with all Applicable Laws with respect to such systems.
(i) All improvements on the Unencumbered Asset lie within
the boundaries and building restrictions of the legal description of record
of the Unencumbered Asset, no such improvements encroach upon easements
benefitting the Unencumbered Asset other than encroachments that do not
materially adversely affect the use or occupancy of the Unencumbered Asset
and no improvements on adjoining properties encroach upon the Unencumbered
Asset or easements benefitting the Unencumbered Asset other than
encroachments that do not materially adversely affect the use or occupancy of
the Unencumbered Asset. All amenities, access routes or other items that
materially benefit the Unencumbered Asset are under direct control of
Borrower or the respective Qualifying Investment Affiliate or Special
Qualifying Investment Affiliate, or constitute permanent easements that
benefit all or part of the Unencumbered Asset or are public property, and the
Unencumbered Asset, by virtue of such easements or otherwise, is contiguous
to a physically open, dedicated all weather public street, and has the
necessary permits for ingress and egress.
(j) There are no delinquent taxes, ground rents, water
charges, sewer rents, assessments, insurance premiums, leasehold payments, or
other outstanding charges affecting the Unencumbered Asset except to the
extent such items are being contested in good faith and as to which adequate
reserves have been provided.
(k) The Unencumbered Asset is assessed for real estate tax
purposes as one or more wholly independent tax lot or lots, separate from any
adjoining land or improvements not constituting a part of such lot or lots, and
no other land or improvements is assessed and taxed together with the
Unencumbered Asset or any portion thereof, or Borrower has complied with all
applicable material requirements of the applicable jurisdiction necessary to
have the Unencumbered Asset assessed as a separate tax parcel.
(l) With respect to those Unencumbered Assets in which
Borrower or any Qualifying Investment Affiliate or Special Qualifying
Investment Affiliate holds a leasehold estate under a Financeable Ground
Lease, with respect to each such Financeable Ground Lease (i) Borrower or the
respective Qualifying Investment Affiliate or Special Qualifying Investment
Affiliate is the owner of a valid and subsisting interest as tenant under the
Financeable Ground Lease; (ii) the Financeable Ground Lease is in full force
and effect, unmodified and not supplemented by any writing or otherwise;
(iii) all rent, additional rent and other charges reserved therein have been
paid to the extent they are payable to the date hereof; (iv) Borrower or the
respective Qualifying Investment Affiliate or Special Qualifying Investment
Affiliate enjoys the quiet and peaceful possession of the estate demised
thereby, subject to any sublease; (v) the Borrower or the respective
Qualifying Investment Affiliate or Special Qualifying
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Investment Affiliate is not in default under any of the terms thereof and
there are no circumstances which, with the passage of time or the giving of
notice or both, would constitute an event of default thereunder; (vi) the
lessor under the Financeable Ground Lease is not in default under any of the
terms or provisions thereof on the part of the lessor to be observed or
performed; (vii) the lessor under the Financeable Ground Lease has satisfied
all of its repair or construction obligations, if any, to date pursuant to
the terms of the Financeable Ground Lease; (viii) Schedule 2 lists all the
Financeable Ground Leases to which any of the Unencumbered Assets are subject
and all amendments and modifications thereto; and (ix) the lessor indicated
on Schedule 2 for each Financeable Ground Lease is the current lessor under
the related Financeable Ground Lease.
A breach of any of the representations and warranties contained in
this Section 6.24 with respect to a Property shall disqualify, unless
otherwise approved by the Required Lenders, such Property from being an
Unencumbered Asset but shall not constitute a Default (unless the elimination
of such Property as an Unencumbered Asset results in a Default under one of
the other provisions of this Agreement including without limitation Sections
7.21(iv) or 7.21(v)).
ARTICLE VII.
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
7.1 FINANCIAL REPORTING.
The Borrower will maintain, for itself and each Subsidiary, and shall
cause each Qualifying Investment Affiliate and Special Qualifying Investment
Affiliate to maintain, a system of accounting established and administered in
accordance with GAAP, and furnish to the Lenders:
(i) as soon as available, but in any event not later
than 45 days after the close of each fiscal quarter, for the
Borrower an unaudited consolidated balance sheet as of the
close of each such period and the related unaudited
consolidated statements of income and retained earnings and
of cash flows of the Borrower and its Subsidiaries for such
period and the portion of the fiscal year through the end of
such period, setting forth in each case in comparative form
the figures for the previous year, all certified by the
Borrower's chief financial officer or chief accounting officer;
(ii) As soon as available, but in any event not later
than 45 days after the close of each fiscal quarter, for the
Borrower and its Subsidiaries, related reports in form and
substance satisfactory to the Lenders, all certified by
Borrower's chief financial officer or chief accounting
officer, including a statement of Funds From Operations, a
description of Unencumbered Assets, a listing of capital
expenditures (in the level of detail as disclosed in
Borrower's most recent Form 10Q), a report listing and
describing all newly acquired Properties, including their
cash flow, cost and secured or unsecured Indebtedness
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assumed in connection with such acquisition, if any, summary
Property information for all Properties, including, without
limitation, their Property Operating Income, occupancy
rates, square footage, property type and date acquired or
built, and such other information as may be requested to
evaluate the quarterly compliance certificate delivered as
provided below;
(iii) As soon as publicly available but in no event
later than one Business Day after the date such reports are
to be filed with the Securities Exchange Commission, copies
of all Form 10Ks, 10Qs, 8Ks, and any other annual,
quarterly, monthly or other reports, copies of all
registration statements and any other public information
which the Borrower or any of its Subsidiaries files with the
Securities Exchange Commission and to the extent any of such
reports contains information required under the other
subsections of this Section 7.1, the information need not be
furnished separately under the other subsections;
(iv) As soon as available, but in any event not later
than 90 days after the close of each fiscal year of the
Borrower and its Subsidiaries, reports in form and substance
satisfactory to the Lenders, certified by the Borrower's
chief financial officer or chief accounting officer containing
Property Operating Income for each individual Property;
(v) Not later than forty-five (45) days after the end of
each of the first three fiscal quarters, and not later than
ninety (90) days after the end of the fiscal year, a
compliance certificate in substantially the form of Exhibit
E hereto signed by the Borrower's chief financial officer or
chief accounting officer confirming that Borrower is in
compliance with all of the covenants of the Loan Documents,
showing the calculations and computations necessary to
determine compliance with the financial covenants contained
in this Agreement (including such schedules and backup
information as may be necessary to demonstrate such
compliance) and stating that to such officer's best
knowledge, there is no other Default or Unmatured Default
exists, or if any Default or Unmatured Default exists,
stating the nature and status thereof;
(vi) (a) As soon as possible and in any event within 10
Business Days after the Borrower knows that any Reportable
Event has occurred with respect to any Plan, a statement,
signed by the chief financial officer of Borrower,
describing said Reportable Event and within 20 days after
such Reportable Event, a statement signed by such chief
financial officer describing the action which Borrower
proposes to take with respect thereto; and (b) within 10
Business Days of receipt, any notice from the Internal
Revenue Service, PBGC or Department of Labor with respect to
a Plan regarding any excise tax, proposed termination of a
Plan, prohibited transaction or fiduciary violation under
ERISA or the Code which could result in any liability to
Borrower or any member of the Controlled Group in excess of
$100,000; and (c) within 10 Business Days of filing, any
Form 5500 filed by Borrower with respect to a Plan, or any
member of the Controlled Group which includes a qualified
accountant's opinion.
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(vii) As soon as possible and in any event within 30
days after receipt by the Borrower, a copy of (a) any notice
or claim to the effect that the Borrower or any of its
Subsidiaries, Qualifying Investment Affiliates, or Special
Qualifying Investment Affiliates is or may be liable to any
Person as a result of the release by such entity, or any of
its Subsidiaries, or any other Person of any toxic or
hazardous waste or substance into the environment, and (b)
any notice alleging any violation of any federal, state or
local environmental, health or safety law or regulation by
the Borrower or any of its Subsidiaries or Investment
Affiliates, which, in either case, could be reasonably
likely to have a Material Adverse Effect;
(viii) Promptly upon the furnishing thereof to the
shareholders of the Borrower, copies of all financial
statements, reports and proxy statements so furnished;
(ix) Promptly upon the distribution thereof to the
press or the public, copies f all press releases;
(x) As soon as possible, and in any event within 10
days after the Borrower knows of any fire or other casualty
or any pending or threatened condemnation or eminent domain
proceeding with respect to all or any portion of any
Property or any property secured by a Qualified Mortgage, a
statement signed by the Chief Financial Officer of Borrower,
describing such fire, casualty or condemnation and the
action Borrower intends to take with respect thereto;
(xi) Not later than 45 days after the end of each
quarter, a report on the aging of receivables with respect
to each of the Properties (i.e. 0-29, 30-59, 60-89 and 90 or
more days past due) showing aggregate delinquencies for each
of the Properties (including a characterization of the type
of receivable) and trends for the prior four quarters;
(xii) Not later than 45 days after the end of each
quarter, an unaudited financial statement for each
Qualifying Investment Affiliate or Special Qualifying
Investment Affiliate that is not a Subsidiary that owns an
Unencumbered Asset; and
(xiii) Such other information (including, without
limitation, financial statements for the Borrower and
non-financial information) as the Administrative Agent or
any Lender may from time to time reasonably request.
7.2 USE OF PROCEEDS.
(i) The Borrower will use the proceeds of the Advances
and the Facility Letters of Credit for the general business
purposes of the Borrower, including working capital needs,
closing costs, and interim or other financing for
acquisitions of new Projects, construction of new
improvements or expansions of existing improvements on
Projects, and to repay outstanding Indebtedness; and
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(ii) The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Advances (x)
to purchase or carry any "margin stock" (as defined in
Regulation U) or (y) to fund any tender offer for all or
substantially all of another Person's outstanding Capital
Stock registered with the Securities and Exchange Commission
under the Securities Act of 1933, unless such Person shall
have consented to such tender offer prior to its
commencement and the Required Lenders shall have consented
to such use of the proceeds of such Advance.
7.3 NOTICE OF DEFAULT.
The Borrower will give, and will cause each of its Subsidiaries and
each Qualifying Investment Affiliate and Special Qualifying Investment Affiliate
to give, prompt notice in writing to the Lenders of the occurrence of any
Default or Unmatured Default and of any other development, financial or
otherwise, which could be reasonably likely to have a Material Adverse Effect.
7.4 CONDUCT OF BUSINESS.
The Borrower will do, and will cause each of its Subsidiaries,
Qualifying Investment Affiliates, and Special Qualifying Investment Affiliates
to do, all things necessary to remain duly incorporated and/or duly qualified,
validly existing and in good standing as a real estate investment trust,
corporation, general partnership, limited liability company or limited
partnership, as the case may be, in its jurisdiction of incorporation/formation,
except, with respect to any Subsidiary or any Qualifying Investment Affiliate or
Special Qualifying Investment Affiliate having less than $10,000,000 of Market
Capitalization, where the preservation of its corporate existence, in the good
faith business judgment of the Borrower, is no longer in the best interests of
the Borrower and the failure to preserve its corporate existence would not have
a Material Adverse Effect and the elimination of its Properties from the
calculation of financial covenant compliance would not cause a Default or an
Unmatured Default. The Borrower will maintain all requisite authority to conduct
its business in each jurisdiction in which the Properties are located and,
except where the failure to be so qualified would not have a Material Adverse
Effect, in each jurisdiction required to carry on and conduct its businesses in
substantially the same manner as it is presently conducted, and, specifically,
neither the Borrower nor its Subsidiaries nor the Qualifying Investment
Affiliates and Special Qualifying Investment Affiliates will undertake any
business other than the acquisition, development, ownership, management,
operation and leasing of warehouse/industrial properties and ancillary
businesses specifically related thereto, except that the Borrower and its
Subsidiaries, Qualifying Investment Affiliates and Special Qualifying Investment
Affiliates may invest in other assets subject to the following limitations with
respect to the specified categories of assets:
------------------------------------------------------------------------------
Categories of Assets Total Investment Limitations
------------------------------------------------------------------------------
(i) Unimproved Land and Developable 7% of Market Capitalization
Land (other than the Deer Run
Industrial Park)
------------------------------------------------------------------------------
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------------------------------------------------------------------------------
(ii) other property holdings (excluding 5% of Market Capitalization
cash, Cash Equivalents, the Non-industrial
Properties and Indebtedness of any
Subsidiary or Qualifying Investment
Affiliate to the Borrower and Indebtedness
of CDC or CRS to the Borrower or any
Wholly-owned Subsidiary incurred in
connection with the construction of
warehouse/industrial properties)
-------------------------------------------------------------------------------
(iii) stock holdings other than in 5% of Market Capitalization
Subsidiaries and Investment Affiliates
and CRS holdings in CDC
-------------------------------------------------------------------------------
(iv) mortgages other than Qualified 5% of Market Capitalization
Mortgages
-------------------------------------------------------------------------------
(v) joint ventures and partnerships 20% of Market Capitalization
(including investments in Investment
Affiliates)
-------------------------------------------------------------------------------
The total investment in all the foregoing investment categories in the aggregate
shall be less than or equal to thirty percent (30%) of Market Capitalization. In
addition to the foregoing restrictions, (a) investments in Unimproved Land which
is not adjacent to existing improvements and not under active planning for near
term development as evidenced to the reasonable satisfaction of Administrative
Agent shall not exceed 5% of Market Capitalization, (b) lessee's interests in
operating leases pursuant to which Borrower, its Subsidiaries or Investment
Affiliates operate any properties shall not exceed 10% of Market Capitalization,
(c) the total estimated cost of completion of assets under construction,
excluding Presold Assets Under Development and Preleased Assets Under
Development, shall not exceed 10% of Market Capitalization, and (e) the total
loans, advances, and stock holdings of Borrower, its Subsidiaries, the
Qualifying Investment Affiliates and Special Qualifying Investment Affiliates in
CDC shall not exceed 5% of Market Capitalization. For the purposes of this
Section 7.4, all investments shall be valued in accordance with GAAP.
7.5 TAXES.
The Borrower will pay, and will cause each of its Subsidiaries,
Qualifying Investment Affiliates and Special Qualifying Investment Affiliates to
pay, when due all taxes, assessments and governmental charges and levies upon
them of their income, profits or Properties, except those which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves have been set aside.
7.6 INSURANCE.
(i) The Borrower will, and will cause each of its
Subsidiaries, Qualifying Investment Affiliates and Special
Qualifying Investment Affiliates to, maintain with
financially sound and reputable insurance companies
insurance on all its Property in such amounts and covering
such risks as is consistent with sound business practice and
in compliance with the representation in Section 6.17,
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and the Borrower will furnish to the Administrative Agent or
any Lender upon request full information as to the insurance
carried.
(ii) The Borrower will promptly notify the
Administrative Agent if there has been a termination of any
insurance policy or a material change in coverage or of the
credit rating of the insurer providing such coverage.
7.7 COMPLIANCE WITH LAWS.
The Borrower will, and will cause each of its Subsidiaries, Qualifying
Investment Affiliates and Special Qualifying Investment Affiliates to, be in
material compliance with all laws, rules and regulations and with all final
orders, writs, judgments, injunctions, decrees or awards to which they may be
subject.
7.8 MAINTENANCE OF PROPERTIES.
The Borrower will, and will cause each of its Subsidiaries, Qualifying
Investment Affiliates and Special Qualifying Investment Affiliates to, do all
things necessary to maintain, preserve, protect and keep its Property in good
repair, working order and condition, and make all necessary and proper repairs,
renewals and replacements so that their businesses carried on in connection
therewith may be properly conducted at all times.
7.9 INSPECTION.
Upon reasonable notice, the Borrower will, and will cause each of its
Subsidiaries, Qualifying Investment Affiliates and Special Qualifying Investment
Affiliates to, permit the Lenders, by their respective representatives and
agents, to inspect any of the Properties, corporate books and financial records
of the Borrower and each of its Subsidiaries, Qualifying Investment Affiliates
and Special Qualifying Investment Affiliates, to examine and make copies of the
books of accounts and other financial records of the Borrower and each of its
Subsidiaries, Qualifying Investment Affiliates and Special Qualifying Investment
Affiliates, and to discuss the affairs, finances and accounts of the Borrower
and each of its Subsidiaries, Qualifying Investment Affiliates and Special
Qualifying Investment Affiliates, and to be advised as to the same by, their
respective officers at such reasonable times during normal business hours and
reasonable intervals as the Lenders may reasonably designate.
7.10 MAINTENANCE OF STATUS.
The Borrower shall at all times (i) maintain the listing of its common
shares of beneficial interest on the New York Stock Exchange and not take any
action that results in a proceeding to delist such common shares, and (ii)
maintain its status as a real estate investment trust in compliance with all
applicable provisions of the Code.
7.11 DIVIDENDS.
Provided there is not a continuing Default under Section 8.1 or Section
8.2, and there is not a continuing Default under Section 8.3 relating to a
breach of any of the covenants contained in Sections 7.20 and 7.21, the Borrower
shall be permitted to declare and pay dividends on their Capital Stock from time
to time in amounts determined by the Borrower, provided, however, that
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subject to the terms of the next sentence, in no event shall the Borrower
declare or pay dividends on their Capital Stock if dividends paid in any period
of four fiscal quarters, in the aggregate, would exceed 90% of Funds From
Operations for such period. Notwithstanding the foregoing, unless at the time of
distribution there exists a Default in the payment of principal, interest, or
the Commitment Fee, the Borrower shall be permitted to distribute whatever
amount of dividends is necessary to maintain its tax status as a real estate
investment trust.
7.12 MERGER; SALE OF ASSETS.
The Borrower will not, nor will it permit any of its Subsidiaries
Qualifying Investment Affiliates, or Special Qualifying Investment Affiliates
to, enter into any merger, consolidation, reorganization or liquidation or
transfer or otherwise dispose of all or a portion of their Property if such
disposition would constitute a "Restricted Disposition," except for (i) such
transactions that occur between Wholly-Owned Subsidiaries, (ii) transactions
where Borrower is the surviving entity and there is no change in business
conducted or loss of an investment grade rating on such entity's long-term
unsecured debt and no other Default results from such transaction, (iii) the
sale by a Special Qualifying Investment Affiliate of all of its assets pursuant
to a buy-sell agreement provided that Borrower remains in compliance with all
covenants concerning Unencumbered Assets contained herein, or (iv) transactions
that are approved in advance in writing by the Lenders. For purposes of this
Section 7.12, a "Restricted Disposition" shall mean any disposition of assets
(exclusive of Like-Kind Exchanges of one industrial/warehouse property for
another and dispositions of Non-industrial Properties and Presold Assets Under
Development) if such disposition is of assets that (i) when aggregated with all
other assets of the Borrower, its Subsidiaries, Qualifying Investment Affiliates
and Special Qualifying Investment Affiliates previously disposed of during the
fiscal year (exclusive of Like-Kind Exchanges of one industrial/warehouse
property for another and dispositions of Non-industrial Properties and Presold
Assets Under Development), comprise more than 10% of Market Capitalization for
the most recent available quarter or (ii) when aggregated with all other assets
of the Borrower, its Subsidiaries, Qualifying Investment Affiliates and Special
Qualifying Investment Affiliates previously disposed of (exclusive of Like-Kind
Exchanges of one industrial/warehouse property for another and dispositions of
Non-industrial Properties and Presold Assets Under Development) from the date
hereof to the date of such sale comprise 25% or more of Market Capitalization
for the most recent available quarter. For purposes of aggregating the assets
disposed, the Market Capitalization attributable to assets disposed during a
period shall be reduced by the Market Capitalization attributable to assets
acquired during the same period.
7.13 TRANSFERS OF UNENCUMBERED ASSETS.
Neither the Borrower nor any of its Qualifying Investment Affiliates
shall transfer or otherwise dispose of (other than the creation or incurrence of
Liens permitted under Section 7.16) an Unencumbered Asset (excluding its
Non-industrial Properties and Presold Assets Under Development) without the
prior written consent of the Required Lenders if such Unencumbered Asset,
together with any other Unencumbered Assets (excluding the Non-industrial
Properties and Presold Assets Under Development) which have been disposed of
during the period of four fiscal quarters ending with the quarter during which
such transfer occurs, have a value which exceeds 20% of the Value of
Unencumbered
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Assets (as determined at the beginning of such four quarter period and increased
to reflect the Value of Unencumbered Assets acquired during such four quarter
period) or if such transfer would result in a violation of the covenants
contained in Sections 7.20 and 7.21.
7.14 OWNERSHIP AND CONTROL OF BORROWER.
The Borrower's management (president, vice president, senior vice
president, secretary, treasurer, executive vice president, chief financial
officer or chief executive officer) and directors shall directly or indirectly
control the ownership (which shall include vested options) of a minimum 550,000
common shares of the Borrower adjusted for stock splits, provided that if
Borrower's management and directors fail to maintain such ownership, such
failure shall not constitute a Default unless such failure continues for six
months without approval by the Required Lenders of such lower level of
ownership.
7.15 SUBSIDIARIES, QUALIFYING INVESTMENT AFFILIATES AND SPECIAL
QUALIFYING INVESTMENT AFFILIATES.
In the event that Borrower shall, directly or indirectly, transfer or
otherwise dispose of the Capital Stock (other than intercompany transfers where
following such transfer the assets of the Subsidiary or Qualifying Investment
Affiliate still meet the requirements for being an Unencumbered Asset) or other
ownership interests in any Subsidiaries or Qualifying Investment Affiliates,
such transfer or disposal shall be treated as though the applicable Subsidiary
or Qualifying Investment Affiliate had disposed of its assets for purposes of
determining whether such disposition is a Restricted Disposition as defined in
Section 7.12 or whether such disposition requires a written consent of Lenders
pursuant to Section 7.13.
7.16 LIENS.
The Borrower will not, nor will it permit any of its Subsidiaries or
Qualifying Investment Affiliates to, create, incur, or suffer to exist any Lien
in, of or on the Property of the Borrower or any of their Subsidiaries or
Qualifying Investment Affiliates except:
(i) Liens for taxes, assessments or governmental charges
or levies on their Property if the same shall not at the
time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves
shall have been set aside on their books;
(ii) Liens which arise by operation of law, such as
carriers', warehousemen's, landlords', materialmen and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 30 days past due or which are
being contested in good faith by appropriate proceedings and
for which adequate reserves shall have been set aside on its
books;
(iii) Liens arising out of pledges or deposits under
workers' compensation laws, unemployment insurance, old age
pensions, or other social security or retirement benefits,
or similar legislation;
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(iv) Utility easements, building restrictions, zoning
restrictions, easements and such other encumbrances or charges
against real property as are of a nature generally existing
with respect to properties of a similar character and which do
not in any material way affect the marketability of the same or
interfere with the use thereof in the business of the Borrower
or its Subsidiaries or Qualifying Investment Affiliates;
(v) Liens of any Subsidiary or Investment Affiliate
in favor of the Borrower;
(vi) Liens existing on the date hereof and described
in Schedule 3 hereto; and
(vii) Liens arising in connection with any Indebtedness
permitted hereunder to the extent such Liens will not result in
a violation of any of the provisions of this Agreement.
Liens permitted pursuant to this Section 7.16 shall be deemed to be "Permitted
Liens".
7.17 AFFILIATES.
The Borrower will not, nor will it permit any of its Subsidiaries or
Qualifying Investment Affiliates or Special Qualifying Investment Affiliates to,
enter into any transaction (including, without limitation, the purchase or sale
of any Property or service) with, or make any payment or transfer to, any
Affiliate except in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's, Qualifying
Investment Affiliate's, or Special Qualifying Investment Affiliate's business
and upon fair and reasonable terms no less favorable to the Borrower or such
Subsidiary, Qualifying Investment Affiliate or Special Qualifying Investment
Affiliate than the Borrower or such Subsidiary, Qualifying Investment Affiliate
or Special Qualifying Investment Affiliate would obtain in a comparable
arms-length transaction.
7.18 INTEREST RATE HEDGING.
The Borrower will not enter into or remain liable upon, nor will it
permit any Subsidiary, Qualifying Investment Affiliate, or Special Qualifying
Investment Affiliate to enter into or remain liable upon, any agreements,
devices or arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward rates
applicable to such party's assets, liabilities or exchange transactions,
including, but not limited to, interest rate exchange agreements, forward
currency exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options unless such agreement, device or
arrangement was entered into by the Borrower, a Subsidiary, Qualifying
Investment Affiliate or Special Qualifying Investment Affiliate in the ordinary
course of its business for the purpose of hedging interest rate risk to the
Borrower, a Subsidiary, Qualifying Investment Affiliate, or Special Qualifying
Investment Affiliate.
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7.19 VARIABLE INTEREST INDEBTEDNESS.
The Borrower shall not at any time permit the outstanding principal
balance of Indebtedness of the Borrower and its Subsidiaries, Qualifying
Investment Affiliates, or Special Qualifying Investment Affiliates which bears
interest at an interest rate that is not fixed through the maturity date of such
Indebtedness ("Variable Rate Debt") to exceed $375,000,000, unless the amount in
excess of $375,000,000 is covered by interest rate caps or other interest rate
protection products reasonably satisfactory to the Required Lenders.
Notwithstanding the foregoing, Borrower shall be entitled to exclude up to
$75,000,000 of tax exempt bonds from the calculation of Variable Rate Debt.
7.20 CONSOLIDATED NET WORTH.
The Borrower as of the last day of any fiscal quarter, shall maintain a
Consolidated Net Worth of not less than the sum of (i) $525,000,000 plus (ii)
seventy-five percent (75%) of the aggregate proceeds received by the Borrower
(net of customary related fees and expenses) in connection with any offering of
stock in the Borrower after June 30, 2000.
7.21 INDEBTEDNESS AND CASH FLOW COVENANTS.
The Borrower shall not at any time permit:
(i) the ratio of EBITDA to Fully Diluted Debt Service
to be less than 2.00 to 1.0 for the quarter then ended;
(ii) the ratio of EBITDA to Fixed Charges to be less
than 1.75 for the quarter then ended;
(iii) Consolidated Total Indebtedness to exceed
fifty-five percent (55%) of Market Capitalization;
(iv) the Value of Unencumbered Assets to be less than
1.75 times the Consolidated Senior Unsecured Indebtedness;
(v) the ratio obtained by dividing: (a) the Property
Operating Income after deducting (without duplication) the
Capital Expenditure Reserve Amount and an assumed management
fee equal to 3% of gross revenues (excluding tenant
reimbursements) from all Unencumbered Assets qualifying for
inclusion in the calculation of Value of Unencumbered Assets
for such quarter by (b) that portion of Debt Service
attributable to Consolidated Unsecured Indebtedness plus
(without duplication) Borrower's pro rata share (based on
economic interest) of Debt Service for such quarter
attributable to unsecured indebtedness of Qualifying Investment
Affiliates and Special Qualifying Investment Affiliates that
own assets qualifying for inclusion in the calculation of
Value of Unencumbered Assets to be less than 2.00 to 1.0 for
the quarter then ended; and
(vi) Consolidated Secured Indebtedness to exceed
thirty percent (30%) of Market Capitalization.
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7.22 ENVIRONMENTAL MATTERS.
The Borrower will, and will cause each of its Subsidiaries, Qualifying
Investment Affiliates and Special Qualifying Investment Affiliates to:
(i) be in material compliance with, and use its
reasonable efforts to ensure material compliance by all tenants
and subtenants, if any, with, all applicable Environmental Laws
and obtain and be in material compliance with and maintain, and
use its reasonable efforts to ensure that all tenants and
subtenants obtain and be in material compliance with and
maintain, all material licenses, approvals, notifications,
registrations or permits required by applicable Environmental
Laws;
(ii) conduct and complete, or will use its reasonable
efforts to cause its tenants or subtenants to conduct and
complete, all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects
with all lawful orders and directives of all Governmental
Authorities applicable to Borrower, its Subsidiaries,
Qualifying Investment Affiliates, or Special Qualifying
Investment Affiliates or their respective Properties regarding
Environmental Laws, except to the extent that (a) the same are
being contested in good faith by appropriate proceedings and
the pendency of such proceedings could not be reasonably
expected to have a Material Adverse Effect, or (b) the Borrower
has determined in good faith that contesting the same is not in
the best interests of the Borrower and its Subsidiaries and the
failure to contest the same could not be reasonably expected to
have a Material Adverse Effect;
(iii) defend, indemnify and hold harmless the
Administrative Agent, and each Lender, and their respective
employees, agents, officers and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses arising out of, or in any way
relating to the violation of, noncompliance with or liability
under any Environmental Laws applicable to the operations of
the Borrower, its Subsidiaries, Qualifying Investment
Affiliates and Special Qualifying Investment Affiliates or the
Properties for which the Borrower, its Subsidiaries, Qualifying
Investment Affiliates or Special Qualifying Investment
Affiliates are liable or could reasonably be expected to be
liable, including, without limitation, reasonable attorney's
and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to
the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking
indemnification therefor. This indemnity shall continue in full
force and effect regardless of the termination of this
Agreement; and
(iv) prior to the acquisition of a new Property after
the Closing Date, perform or cause to be performed an
environmental investigation, which investigation shall at a
minimum comply with the specifications and procedures attached
hereto as Exhibit H. In connection with any such investigation,
Borrower shall cause to be prepared a report of such
investigation and make it
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available to the Administrative Agent, and any Lender may
request that Administrative Agent obtain a copy of such report.
Such report shall be reasonably satisfactory in form and
substance to the Administrative Agent.
7.23 NOTIFICATION OF RATING CHANGE.
The Borrower shall notify the Administrative Agent promptly (but no
later than ten days following the occurrence of any of the following events) if
there is any change in the rating assigned to Borrower's long term unsecured
debt (regardless of whether any such debt is outstanding) or Facility rating
from Xxxxx'x or S&P or any substitute rating agency of either of such ratings.
7.24 MAXIMUM REVENUE FROM SINGLE TENANT.
Borrower shall not permit the rent revenue exclusive of tenant
reimbursements received from a single tenant during any quarter (as annualized),
to exceed 5% of total annualized gross revenue (exclusive of tenant
reimbursements).
7.25 NEGATIVE PLEDGE.
Borrower agrees that throughout the term of this Facility, no "negative
pledge" on Unencumbered Assets shall be given to any other lender.
7.26 MANAGER.
The Properties (other than the Non-industrial Properties) shall at all
times be managed by the Borrower or a Qualifying Investment Affiliate.
7.27 ACCELERATION NOTICE.
Borrower agrees that it shall, within ten (10) days after receipt of
written notice that any Indebtedness aggregating $5,000,000 or more of Borrower
or any Subsidiary, Qualifying Investment Affiliate or Special Qualifying
Investment Affiliate has been accelerated, provide written notice to the
Administrative Agent of such acceleration.
7.28 LIEN SEARCHES; TITLE SEARCHES.
Borrower shall, upon the Administrative Agent's request therefor given
from time to time, but not more frequently than once during the term of this
Facility, unless a Default shall have occurred and be continuing or such Title
Search indicates a Lien other than a Permitted Lien or another state of facts
not reasonably satisfactory to the Administrative Agent and the Required
Lenders, pay for (a) reports of UCC, tax lien, judgment and litigation searches
with respect to Borrower and each Qualifying Investment Affiliate or Special
Qualifying Investment Affiliate that owns an Unencumbered Asset, and (b)
searches of title to each of the Properties which are Unencumbered Assets (each,
a "Title Search"). All Title Searches and lien searches required under this
Agreement shall be conducted by search firms designated by Administrative Agent
in each of the locations designated by the Administrative Agent.
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7.29 ADDITIONAL COVENANTS.
Borrower will not engage in or knowingly permit any illegal activities
at any Property.
7.30 CALCULATION OF FINANCIAL COVENANTS UPON PROPERTY BREACHES.
In the event of a breach of a representation or warranty under Article
VI or of a covenant under Section 7.5, 7.6, 7.7, 7.8, 7.16, 7.22 or 7.26 (which
relates to a Property and which does not have a Material Adverse Effect (a
"Property Breach")), or if there are environmental disclosures concerning a
Property contained in Schedule 5, Borrower shall be required to demonstrate
financial covenant compliance under applicable provisions of Article VII both
with and without the affected Property for as long as such breach or condition
shall exist.
ARTICLE VIII.
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
8.1 Nonpayment of any principal payment on any Note when due and
payable.
8.2 Nonpayment of (i) interest upon any Note, any Facility Fee,
Administrative Agent's Fee or Facility Letter of Credit Fee, under any of th
Loan Documents within five (5) Business Days after the same becomes due or
(ii) any other payment Obligation under any of the Loan Documents within five
(5) Business Days of Borrower's receipt of written notice.
8.3 The breach of any of the terms or provisions of Sections
7.1(iii), (iv) and (v), 7.2(ii), 7.6(i) (to the extent such breach relates to a
cancellation of an insurance policy or Borrower's failure to pay the required
premium to renew a policy), 7.6(ii), 7.10, 7.11, 7.12, 7.13, 7.14, 7.16, 7.18,
7.20, 7.21 or 7.25, or a breach of any of the terms or provisions of Section
7.1 (other than as set forth above) which remains uncured for ten (10) business
days.
8.4 Any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries to the Lenders or the
Administrative Agent under or in connection with this Agreement (other than
Section 6.24 and a Property Breach unless such breach causes a Default under
another provision of this Article VIII), any Loan, or any certificate or
information delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which made.
8.5 The breach (other than a breach which constitutes a Default
under Section 8.1, 8.2, 8.3 or 8.4 and other than a Property Breach) of any of
the other terms or provisions of this Agreement which is not remedied within
thirty (30) days or ninety (90) days, for a breach which is curable but cannot
be cured within 30 days but is being diligently cured, after the earlier to
occur of the breach or receipt of written notice from the Administrative Agent
or any Lender.
8.6 Failure of the Borrower, any Qualifying Investment Affiliate
or Special Qualifying Investment Affiliate (to the extent the Indebtedness is
recourse to Borrower or any Subsidiary) or any of its Subsidiaries to pay when
due (after applicable cure periods) any
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Indebtedness aggregating in excess of $5,000,000 for which liability is not
limited to specific pledged collateral, or $50,000,000 for which liability is
limited to specific pledged collateral.
8.7 The Borrower, any Qualifying Investment Affiliate or Special
Qualifying Investment Affiliate that is not a Subsidiary having a Market
Capitalization which is more than 3% of Market Capitalization, or any Subsidiary
having more than $10,000,000 of Market Capitalization shall (i) have an order
for relief entered with respect to it under the Federal bankruptcy laws as now
or hereafter in effect, (ii) make an assignment for the benefit of creditors,
(iii) apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for it or
any Substantial Portion of its Property, (iv) institute any proceeding seeking
an order for relief under the Federal bankruptcy laws as now or hereafter in
effect or seeking to adjudicate it as a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed against
it, (v) take any corporate action to authorize or effect any of the foregoing
actions set forth in this Section 8.7, (vi) fail to contest in good faith any
appointment or proceeding described in Section 8.8 or (vii) not pay, or admit in
writing its inability to pay, its debts generally as they become due.
8.8 A receiver, trustee, examiner, liquidator or similar official
shall be appointed for the Borrower, any Qualifying Investment Affiliate or
Special Qualifying Investment Affiliate that is not a Subsidiary having a Market
Capitalization which is more than 3% of Market Capitalization, or any Subsidiary
having more than $10,000,000 of Market Capitalization or any Substantial Portion
of its Property, or a proceeding described in Section 8.7(iv) shall be
instituted against the Borrower any Qualifying Investment Affiliate or Special
Qualifying Investment Affiliate or any such Subsidiary and such appointment
continues undischarged or such proceeding continues undismissed or unstayed for
a period of sixty (60) consecutive days.
8.9 Any court, government or governmental agency shall condemn,
seize or otherwise appropriate, or take custody or control of (each a
"Condemnation"), all or any portion of the Properties of the Borrower and its
Subsidiaries, Qualifying Investment Affiliates and Special Qualifying Investment
Affiliates which, when taken together with all other Property of the Borrower
and its Subsidiaries, Qualifying Investment Affiliates and Special Qualifying
Investment Affiliates so condemned, seized, appropriated, or taken custody or
control of, during the twelve-month period ending with the month in which any
such Condemnation occurs, constitutes a Substantial Portion of their Property.
8.10 The Borrower or any of its Subsidiaries or any Qualifying
Investment Affiliate or Special Qualifying Investment Affiliate shall fail
within sixty (60) days to pay, bond or otherwise discharge any judgments or
orders for the payment of money in an amount which, when added to all other
judgments or orders outstanding against the Borrower or any Subsidiary or any
Qualifying Investment Affiliate would exceed $10,000,000 in the aggregate, which
have not been stayed on appeal or otherwise appropriately contested in good
faith, unless the liability is insured against and the insurer has not
challenged coverage of such liability.
8.11 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan, the PBGC or other
party that it has incurred
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withdrawal liability or is in default of payments to such Multiemployer Plan in
an amount which, when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Borrower or any other member of the Controlled Group
as withdrawal liability (determined as of the date of such notification) or
amounts in default, exceeds $250,000 or requires payments exceeding $100,000
per annum.
8.12 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan or the PBGC or other
party that such Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, if as a result of such reorganization
or termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $250,000 per year.
8.13 (i) A Reportable Event shall occur with respect to a Plan, or
(ii) any Plan shall incur an accumulated funding deficiency (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived, or fail
to make a required installment payment on or before the due date under Section
412 of the Code or Section 302 of ERISA, or (iii) Borrower or a member of the
Controlled Group shall have engaged in a nonexempt prohibited transaction under
Section 4975 of the Code or Section 406 of ERISA, or (iv) Borrower or any member
of the Controlled Group shall fail to pay when due an amount which it shall have
become liable to pay to the PBGC, or any Plan, any Multiemployer Plan, or
(v) Borrower or any member of the Controlled Group shall have received a notice
from the PBGC of its intention to terminate a Plan or to appoint a trustee to
administer a Plan, or Multiemployer Plan, or a condition exists by reason of
which the PBGC would be entitled to obtain a decree adjudicating that a Plan
must be terminated, or (vi) any other event or condition shall occur or exist
with respect to any employee benefit plan (as defined in Section 3(3) of ERISA)
or Plan or any Multiemployer Plan, which could reasonably be expected to subject
Borrower or any member of the Controlled Group to any tax, penalty or other
liability or the imposition of any lien or security interest on Borrower or any
member of the Controlled Group, provided, however, that any event or
circumstance in Sections 8.13(i) through (vi) shall only be an Event of Default
if it would result in liability to Borrower in excess of $250,000 per year; or
(vii) the assets of Borrower become or are deemed to be assets of an employee
benefit plan (as defined in Section 3(3) of ERISA or a plan as defined in
Section 4975 of the Code). No Default under this Section 8.13 shall be deemed to
have been or be waived or corrected because of any disclosure by Borrower.
8.14 Failure to remediate within the time period required by law or
governmental order, (or within a reasonable time in light of the nature of the
problem if no specific time period is so established), environmental problems in
violation of applicable law (i) related to Properties of the Borrower and its
Subsidiaries and the Qualifying Investment Affiliates and Special Qualifying
Investment Affiliates if the affected Properties have an aggregate book value in
excess of $10,000,000 or (ii) where the estimated cost of remediation is in the
aggregate in excess of $500,000, in each case after all administrative hearings
and appeals have been concluded.
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8.15 The occurrence of any default under any Loan Document other
than this Agreement or the breach of any of the terms or provisions of any Loan
Document other than this Agreement, which default or breach continues beyond any
period of grace therein provided.
ARTICLE IX.
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
9.1 ACCELERATION.
If any Default described in Section 8.7 or 8.8 occurs with respect to
the Borrower or any Subsidiary or Qualifying Investment Affiliate or Special
Qualifying Investment Affiliate, the obligations of the Lenders to make Loans
and of the Issuing Bank to issue Facility Letters of Credit hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Administrative Agent
or any Lender. If any other Default occurs and is continuing, the Required
Lenders may terminate or suspend the obligations of the Lenders to make Loans
hereunder and to issue Facility Letters of Credit, or declare the Obligations to
be due and payable, or both, whereupon the Obligations shall become immediately
due and payable, upon written notice to the Borrower.
In addition to the foregoing, following the occurrence and during the
continuance of a Default and so long as any Facility Letter of Credit has not
been fully drawn and has not been cancelled or expired by its terms, upon demand
by the Administrative Agent or the Required Lenders, the Borrower shall
establish and deposit in the Letter of Credit Collateral Account cash in an
amount equal to the aggregate undrawn face amount of all outstanding Facility
Letters of Credit and all fees and other amounts due or which may become due
with respect thereto. The Borrower shall have no control over funds in the
Letter of Credit Collateral Account, which funds will be invested by the
Administrative Agent from time to time at its discretion in certificates of
deposit of Bank One, NA having a maturity not exceeding 30 days. Such funds
shall be promptly applied by the Administrative Agent to reimburse any Issuing
Bank for drafts drawn from time to time under the Facility Letters of Credit.
Such funds, if any, remaining in the Letter of Credit Collateral Account
following the payment of all Obligations in full shall, unless Administrative
Agent is otherwise directed by a court of competent jurisdiction, be promptly
paid over to the Borrower.
If, within forty-five (45) days after acceleration of the maturity of
the Obligations or termination of the obligations of the Lenders to make Loans
hereunder or to issue Facility Letters of Credit as a result of any Default
(other than any Default as described in Section 8.7 or 8.8 with respect to the
Borrower) and before any judgment or decree for the payment of the Obligations
shall have been obtained or entered, the Required Lenders (in their sole
discretion) may direct, the Administrative Agent shall, by notice to the
Borrower, rescind and annul such acceleration and/or termination.
9.2 AMENDMENTS, WAIVERS, DECISIONS.
Subject to the provisions of this Article IX and the right of the
Borrower, solely with the agreement of the Administrative Agent and such new
banks or existing Lenders as may provide new or increased Commitments, to
increase the Aggregate Commitment as described in Section
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2.24 above, the Required Lenders (or the Administrative Agent with the
consent or direction in writing of the Required Lenders) and the Borrower may
enter into agreements supplemental hereto for the purpose of adding or modifying
any provisions to the Loan Documents or changing in any manner the rights of the
Lenders or the Borrower hereunder, or waiving any Default hereunder; provided,
however, that no such supplemental agreement shall, without the consent of all
Lenders:
(i) Extend the Facility Termination Date or forgive
all or any portion of the principal amount of any Loan or
accrued interest thereon or the Facility Fee, reduce the
Applicable Margins on the underlying interest rate options or
otherwise modify or add to such interest rate options, or
extend the time of payment of any of the Obligations.
(ii) Reduce the percentage specified in the definition
of Required Lenders or change any provision that currently
requires an approval from the Required Lenders, all Lenders or
the specific Lender affected, to approval by a different
standard.
(iii) Increase the amount of the Aggregate Commitment
beyond $400,000,000.
(iv) Permit the Borrower to assign its rights under
this Agreement.
(v) Amend Section 2.2, 2.3, 3.8(a), 12.2, or this
Section 9.2.
(vi) Release or limit the liability of Borrower or any
guarantor with respect to the Obligations.
Notwithstanding the foregoing, no amendment of Section 7.21(iv) or
7.21(v) or any of the definitions included within such covenants shall be
effective without the consent of Lenders having at least 90.1% of the Aggregate
Commitment (not held by Defaulting Lenders who are not entitled to vote) or if
the Aggregate Commitment has been terminated, holding at least 90.1% of the
aggregate unpaid principal amount of the outstanding Advances (not held by
Defaulting Lenders who are not entitled to vote).
No amendment of any provision of this Agreement relating to the
Administrative Agent shall be effective without the written consent of the
Administrative Agent, no amendment increasing the Commitment of any Lender shall
be effective without the written consent of such Lender, and no amendment of any
provision of this Agreement relating to the Swing Line Lender or any Swing Line
Loans shall be effective without the written consent of the Swing Line Lender.
9.3 PRESERVATION OF RIGHTS.
No delay or omission of the Lenders or the Administrative Agent to
exercise any right under the Loan Documents shall impair such right or be
construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not
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preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Lenders required pursuant to Section 9.2, and then only to the
extent in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Administrative Agent and the Lenders until the Obligations have been paid
in full.
ARTICLE X.
GENERAL PROVISIONS
10.1 SURVIVAL OF REPRESENTATIONS.
All representations and warranties of the Borrower contained in this
Agreement shall survive delivery of the Notes and the making of the Loans herein
contemplated.
10.2 GOVERNMENTAL REGULATION.
Anything contained in this Agreement to the contrary notwithstanding,
no Lender shall be obligated to extend credit to the Borrower in violation of
any limitation or prohibition provided by any applicable statute or regulation.
10.3 TAXES.
Any taxes (excluding federal, state and local income or franchise or
other similar taxes on the overall net income of any Lender) or other similar
assessments or charges made by any governmental or revenue authority in respect
of the Loan Documents shall be paid by the Borrower, together with interest and
penalties, if any.
10.4 HEADINGS.
Section headings in the Loan Documents are for convenience of reference
only, and shall not govern the interpretation of any of the provisions of the
Loan Documents.
10.5 ENTIRE AGREEMENT.
The Loan Documents embody the entire agreement and understanding among
the Borrower, the Administrative Agent, and the Lenders and supersede all prior
commitments, agreements and understandings among the Borrower, the
Administrative Agent, and the Lenders relating to the subject matter thereof,
except for the agreement of the Borrower to pay certain fees to the
Administrative Agent and the agreement of the Administrative Agent to pay
certain fees to the Lenders.
10.6 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT.
The respective obligations of the Lenders hereunder are several and not
joint and no Lender shall be the partner or agent of any other (except to the
extent to which the Administrative Agent is authorized to act as such). The
failure of any Lender to perform any of
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its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns.
10.7 EXPENSES; INDEMNIFICATION.
The Borrower shall reimburse the Arranger and Administrative Agent on
demand for any costs, and reasonable out-of-pocket expenses (including, without
limitation, all reasonable fees for consultants and reasonable fees and expenses
for attorneys for the Arranger and Administrative Agent (without duplication),
which attorneys may be employees of the Arranger or Administrative Agent) paid
or incurred by the Arranger (whether in their capacity as Arranger, or, in the
case of Bank One, NA, in its capacity as Administrative Agent) in connection
with the preparation, negotiation, execution, delivery, amendment or
modification of the Loan Documents. The Borrower also agrees to reimburse the
Arranger, Administrative Agent, and the Lenders for any costs, internal charges
and reasonable out-of-pocket expenses (including, without limitation, all
reasonable fees and expenses for attorneys for the Arranger, Administrative
Agent and the Lenders, which attorneys may be employees of the Arranger or the
Lenders) paid or incurred by the Arranger or Administrative Agent (whether in
their capacity as Arranger, or, in the case of Bank One, NA, in its capacity as
Administrative Agent) or any Lender in connection with the collection and
enforcement of the Loan Documents (including, without limitation, any workout).
The Borrower further agrees to indemnify the Administrative Agent, the Arranger
and each Lender and their directors, officers and employees against all losses,
claims, damages, penalties, judgments, liabilities and reasonable expenses
(including, without limitation, all expenses of litigation or preparation
therefor whether or not such entity is a party thereto) which any of them may
pay or incur arising out of or relating to this Agreement, the other Loan
Documents, the Properties, the transactions contemplated hereby or the direct or
indirect application or proposed application of the proceeds of any Loan
hereunder, other than liability arising from the gross negligence or wilful
misconduct of the party being indemnified. The obligations of the Borrower under
this Section 10.7 shall survive for two years after the termination of this
Agreement.
10.8 NUMBERS OF DOCUMENTS.
All statements, notices, closing documents, and requests hereunder
shall be furnished to the Administrative Agent with sufficient counterparts so
that the Administrative Agent may furnish one to each of the Lenders.
10.9 ACCOUNTING.
Except as provided to the contrary herein, all accounting terms used
herein shall be interpreted and all accounting determinations hereunder shall be
made in accordance with GAAP, except that any calculation or determination which
is to be made on a consolidated basis shall be made for the Borrower and all its
Subsidiaries.
10.10 SEVERABILITY OF PROVISIONS.
Any provision in any Loan Document that is held to be inoperative,
unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the remaining
provisions in that jurisdiction or the operation, enforceability, or
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validity of that provision in any other jurisdiction, and to this end the
provisions of all Loan Documents are declared to be severable.
10.11 NONLIABILITY OF LENDERS, ARRANGER, ADMINISTRATIVE AGENT,
DOCUMENTATION AGENT, MANAGING AGENT AND SYNDICATION AGENT.
The relationship between the Borrower, on the one hand, and the
Lenders, the Arranger, the Administrative Agent, the Syndication Agent, the
Documentation Agent, and the Managing Agents on the other, shall be solely that
of borrower and lender. Neither the Administrative Agent, the Syndication Agent,
the Documentation Agent, the Arranger, the Managing Agents nor any Lender shall
have any fiduciary responsibilities to the Borrower. Neither the Administrative
Agent, the Syndication Agent, the Documentation Agent, the Arranger, the
Managing Agents nor any Lender undertakes any responsibility to the Borrower to
review or inform the Borrower of any matter in connection with any phase of the
Borrower's business or operations. None of the Arranger, the Syndication Agent,
the Documentation Agent, or the Managing Agents shall have any responsibilities
to the Borrower or Lenders under this Agreement except to the extent, if any,
expressly set forth herein.
10.12 PUBLICITY.
Each Lender and each Arranger shall have the right to do a tombstone
publicizing the transaction contemplated hereby upon the consent of the Borrower
which shall not be unreasonably withheld.
10.13 BROKERS.
Borrower and Administrative Agent each hereby represent and warrant
that no brokers or finders were used in connection with procuring the financing
contemplated hereby and Borrower hereby agrees to indemnify and save the
Administrative Agent, and each Lender harmless from and against any and all
liabilities, losses, costs and expenses (including attorneys' fees or court
costs) suffered or incurred by the Administrative Agent, or any Lender as a
result of any claim or assertion by any party claiming by, through or under
Borrower, its Subsidiaries or any Investment Affiliate that it is entitled to
compensation in connection with the financing contemplated hereby.
Administrative Agent hereby agrees to indemnify and save Borrower harmless from
and against any and all liabilities, losses, costs and expenses (including
attorneys' fees or court costs) suffered or incurred by Borrower as a result of
any claim or assertion by any party claiming by, through or under Administrative
Agent that it is entitled to compensation in connection with the financing
contemplated hereby.
10.14 CONFIDENTIALITY.
With respect to the financial statements and other information
delivered pursuant to Section 7.1, and any other information obtained by any
Lender or any assignee of any Lender pursuant to this Section 10.14 or
otherwise, each Lender and each assignee of any Lender agree that, to the extent
that such information therein contained has not theretofore otherwise been
disclosed in such a manner as to render such information no longer confidential,
such Lender and such assignee will employ reasonable procedures reasonably
designed to maintain the confidential nature of the information therein
contained; provided that anything herein contained to the contrary
notwithstanding, any Lender or its assignee may disclose or disseminate such
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information to: (a) its employees, agents, attorneys and accountants who would
ordinarily have access to such information in the normal course of the
performance of their duties; (b) such third parties as such Lender may deem
reasonably necessary in connection with or in response to (i) compliance with
any law, ordinance or governmental order, regulation, rule, policy, subpoena,
investigation, regulatory authority request or requests, or (ii) any order,
decree, judgment, subpoena, notice of discovery or similar ruling or pleading
issued, filed, served or purported on its face to be issued, filed or served by
or under authority of any court, tribunal, arbitration board of any governmental
or industry agency, commission, authority, board or similar entity or in
connection with any proceeding, case or matter pending (or on its face purported
to be pending) before any court, tribunal, arbitration board or any governmental
agency, commission, authority, board or similar entity; and (c) any prospective
assignee of or Participant in such Lender's interest, provided such prospective
assignee or Participant agrees in writing to be bound by these provisions.
10.15 CHOICE OF LAW.
THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS
CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
(AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO
FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
10.16 CONSENT TO JURISDICTION.
THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN
CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY OF THE
LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN
THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER
AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE
ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL
BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
10.17 WAIVER OF JURY TRIAL.
THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR
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CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
ARTICLE XI.
THE ADMINISTRATIVE AGENT AND AGREEMENTS AMONG LENDERS
11.1 APPOINTMENT.
Subject to the provisions of Section 11.11, Bank One, NA (having its
principal office in Chicago, Illinois) is hereby appointed Administrative Agent
hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Administrative Agent to act as the agent of such
Lender. The Administrative Agent agrees to act as such upon the express
conditions contained in this Article XI. The Administrative Agent shall not have
a fiduciary relationship in respect of the Borrower or any Lender by reason of
this Agreement. The Administrative Agent agrees to administer this Facility in
the same manner as it administers similar facilities for its own account.
11.2 POWERS.
The Administrative Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Administrative Agent by
the terms of each thereof, together with such powers as are reasonably
incidental thereto. The Administrative Agent shall have no implied duties to the
Lenders, or any obligation to the Lenders to take any action thereunder except
any action specifically provided by the Loan Documents to be taken by the
Administrative Agent.
11.3 GENERAL IMMUNITY.
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be liable to the Borrower, the Lenders or 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 and except for liability of
Administrative Agent for breach of an express agreement made by the
Administrative Agent herein to take or not take actions based on the approval or
direction of a requisite number of Lenders.
11.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC.
Neither the Administrative 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 borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of any obligor
under any Loan Document, including, without limitation, any agreement by an
obligor to furnish information directly to each Lender; (iii) the satisfaction
of any condition specified in Article V, except receipt of items required to be
delivered to the Administrative Agent; (iv) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith (provided that Administrative Agent shall be obligated to
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furnish copies of the Loan Documents to the Lenders); or (v) the value,
sufficiency, creation, perfection or priority of any interest in any collateral
security. The Administrative Agent shall have no duty to disclose to the Lenders
information that is not required to be furnished by the Borrower to the
Administrative Agent at such time, but is voluntarily furnished by the Borrower
to the Administrative Agent in its individual capacity.
11.5 ACTION ON INSTRUCTIONS OF LENDERS.
The Administrative 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 the Required Lenders
unless such action or inaction requires the consent of all the Lenders or an
individual Lender not included in the direction of the Required Lenders pursuant
to this Agreement, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders and on all holders of
Notes. The Administrative Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
11.6 EMPLOYMENT OF ADMINISTRATIVE AGENTS AND COUNSEL.
The Administrative Agent may execute any of its duties as
Administrative Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and so long as it exercises reasonable
care in the selection of such parties, the Administrative Agent shall not be
answerable to the Lenders, except as to money or securities received by it or
its authorized agents, for the default or misconduct of any such parties. The
Administrative 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.
11.7 RELIANCE ON DOCUMENTS; COUNSEL.
The Administrative Agent shall be entitled to rely upon any Note,
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 Administrative Agent, which counsel may be
employees of the Administrative Agent.
11.8 ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION.
The Lenders agree to reimburse and indemnify the Administrative Agent
(in its capacity as Administrative Agent but not as Lender) ratably in
proportion to their respective Commitments (i) for any amounts not reimbursed by
the Borrower for which the Administrative Agent is entitled to reimbursement by
the Borrower under the Loan Documents including reasonable out-of-pocket
expenses in connection with the preparation, execution, delivery of the Loan
Documents, (ii) for any other reasonable out-of-pocket expenses incurred by the
Administrative Agent on behalf of the Lenders, in connection with the
administration and enforcement of the Loan Documents and (iii) 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 the Administrative Agent
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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 the
Administrative Agent or an action relating to a dispute which is solely between
the Administrative Agent and one or more Lenders in which the other Lender
prevails, or an action taken or not taken by Administrative Agent contrary to
the express requirements contained herein pertaining to the requisite number of
Lenders required to approve or direct certain actions. The obligations of the
Lenders under this Section 11.8 shall survive payment of the Obligations and
termination of this Agreement.
11.9 RIGHTS AS A LENDER.
In the event the Administrative Agent is a Lender, the Administrative
Agent shall have the same rights and powers and the same duties and obligations
hereunder and under any other Loan Document as any Lender and may exercise the
same as though it were not the Administrative Agent, and the term "Lender" or
"Lenders" shall, at any time when the Administrative Agent is a Lender, unless
the context otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent and any Lender may accept deposits
from, lend money to, and generally engage in any kind of trust, debt, equity or
other transaction, in addition to those contemplated by this Agreement or any
other Loan Document, with the Borrower or any of its Subsidiaries in which the
Borrower or such Subsidiary is not restricted hereby from engaging with any
other Person.
11.10 LENDER CREDIT DECISION.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent, or any other Lender and based on the
financial statements prepared by the 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 the
Administrative 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.
11.11 SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, such resignation in either case
to be effective upon the appointment of a successor Administrative Agent or, if
no successor Administrative Agent has been appointed, sixty days after the
retiring Administrative Agent gives notice of its intention to resign. The
Administrative Agent may be removed at anytime with good cause by written notice
received by the Administrative Agent from the Required Lenders, such removal to
be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint
upon the confirmation of the Borrower if such successor is not a Lender, on
behalf of the Borrower and the Lenders, a successor Administrative Agent. In the
case of a resignation, if no successor Administrative Agent shall have been so
appointed by the Required Lenders within forty-five days after the resigning
Administrative Agent's giving notice of its intention to resign, then the
resigning Administrative Agent may
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appoint, on behalf of the Borrower and the Lenders, a successor Administrative
Agent upon the confirmation of the Borrower (if required). If the Administrative
Agent has resigned or has been removed and no successor Administrative Agent has
been appointed and confirmed (if required) within 60 days, the Lenders shall
perform all the duties of the Administrative Agent hereunder and the Borrower
shall make all payments in respect of the Obligations to the applicable Lender
and for all other purposes shall deal directly with the Lenders. No successor
Administrative Agent shall be deemed to be appointed hereunder until such
successor Administrative Agent has accepted the appointment. Any such successor
Administrative Agent shall be either a Lender or a commercial bank (or a
subsidiary thereof) having capital and retained earnings of at least
$500,000,000 that is generally in the business of making loans comparable to the
Loans made under this Facility, except that if the successor Administrative
Agent is a subsidiary of a bank, such capital and retained earnings requirement
shall apply only to the parent bank. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the resigning or removed
Administrative Agent. Upon the effectiveness of the resignation or removal of
the Administrative Agent, the resigning or removed Administrative Agent and the
successor Administrative Agent shall pro rate any agency fees, and the resigning
or removed Administrative Agent shall be discharged from its duties and
obligations hereunder and under the Loan Documents. After the effectiveness of
the resignation or removal of an Administrative Agent, the provisions of this
Article XI shall continue in effect for the benefit of such Administrative Agent
in respect of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent hereunder and under the other Loan Documents.
11.12 NOTICE OF DEFAULTS.
If a Lender becomes aware of a Default or Unmatured Default, such
Lender shall notify the Administrative Agent of such fact. Upon receipt of such
notice that a Default or Unmatured Default has occurred, the Administrative
Agent shall notify each of the Lenders of such fact.
11.13 REQUESTS FOR APPROVAL.
If the Administrative Agent requests in writing the consent or approval
of a Lender, such Lender shall respond and either approve or disapprove
definitively in writing to the Administrative Agent within ten Business Days (or
sooner if such notice specifies a shorter period, but in no event less than five
Business Days for responses based on Administrative Agent's good faith
determination that circumstances exist warranting its request for an earlier
response) after such written request from the Administrative Agent. If the
Lender does not so respond, that Lender shall be deemed to have approved the
request. Upon request, the Administrative Agent shall notify the Lenders which
Lenders, if any, failed to respond to a request for approval.
11.14 COPIES OF DOCUMENTS.
Administrative Agent shall promptly deliver to each of the Lenders
copies of all notices of default and other formal notices sent or received
according to Section 14.1 of this agreement. Administrative Agent shall deliver
to Lenders within 15 Business Days following receipt, copies of all financial
statements, certificates and notices received regarding the Borrower's unsecured
debt rating except to the extent such items are required to be furnished
directly to the Lenders by
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Borrower hereunder. Within fifteen Business Days after a request by a Lender to
the Administrative Agent for other documents furnished to the Administrative
Agent by the Borrower, the Administrative Agent shall provide copies of such
documents to such Lender except where this Agreement obligates Administrative
Agent to provide copies in a shorter period of time.
11.15 DEFAULTING LENDERS.
At such time as a Lender becomes a Defaulting Lender, such Defaulting
Lender's right to vote on matters which are subject to the consent or approval
of the Required Lenders, each affected Lender or all Lenders shall be
immediately suspended until such time as the Lender is no longer a Defaulting
Lender. If a Defaulting Lender has failed to fund its Percentage of any Advance
and until such time as such Defaulting Lender subsequently funds its Percentage
of such Advance, all Obligations owing to such Defaulting Lender hereunder shall
be subordinated in right of payment, as provided in the following sentence, to
the prior payment in full of all principal of, interest on and fees relating to
the Loans funded by the other Lenders in connection with any such Advance in
which the Defaulting Lender has not funded its Percentage (such principal,
interest and fees being referred to as "Senior Loans" for the purposes of this
section). All amounts paid by the Borrower and otherwise due to be applied to
the Obligations owing to such Defaulting Lender pursuant to the terms hereof
shall be distributed by the Administrative Agent to the other Lenders in
accordance with their respective Percentages (recalculated for the purposes
hereof to exclude the Defaulting Lender) until all Senior Loans have been paid
in full. At that point, the "Defaulting Lender" shall no longer be deemed a
Defaulting Lender. After the Senior Loans have been paid in full equitable
adjustments will be made in connection with future payments by the Borrower to
the extent a portion of the Senior Loans had been repaid with amounts that
otherwise would have been distributed to a Defaulting Lender but for the
operation of this Section 11.15. This provision governs only the relationship
among the Administrative Agent, each Defaulting Lender and the other Lenders;
nothing hereunder shall limit the obligation of the Borrower to repay all Loans
in accordance with the terms of this Agreement. The provisions of this section
shall apply and be effective regardless of whether a Default occurs and is
continuing, and notwithstanding (i) any other provision of this Agreement to the
contrary, (ii) any instruction of the Borrower as to its desired application of
payments or (iii) the suspension of such Defaulting Lender's right to vote on
matters which are subject to the consent or approval of the Required Lenders or
all Lenders.
ARTICLE XII.
RATABLE PAYMENTS
12.1 INTENTIONALLY DELETED.
12.2 RATABLE PAYMENTS.
If any Lender has payment made to it upon its Loans (other than
payments received pursuant to Sections 4.1, 4.2 or 4.4 and payments received in
connection with Competitive Bid Loans) in a greater proportion than that
received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Loans held by the other Lenders so that after such
purchase each Lender will hold its ratable proportion of Loans. If any Lender,
whether in
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connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their Loans. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
ARTICLE XIII.
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 SUCCESSORS AND ASSIGNS.
The terms and provisions of the Loan Documents shall be binding upon
and inure to the benefit of the Borrower and the Lenders and their successors
and permitted assigns, except that (i) the Borrower shall not have the right to
assign its rights or obligations under the Loan Documents and (ii) any
assignment by any Lender must be made in compliance with Section 13.3.
Notwithstanding clause (ii) of this Section 13.1, any Lender may at any time,
without the consent of the Borrower assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank; provided, however,
that no such assignment shall release the transferor Lender from its obligations
hereunder. The Administrative Agent may treat the payee of any Note as the owner
thereof for all purposes hereof unless and until such payee complies with
Section 13.3 in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Administrative
Agent. Any assignee or transferee of a Note agrees by acceptance thereof to be
bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the holder of any Note, shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Note or of
any Note or Notes issued in exchange therefor.
13.2 PARTICIPATIONS.
13.2.1. PERMITTED PARTICIPANTS; EFFECT. Any Lender, in the ordinary
course of its business and in accordance with applicable law, at any time, may
sell participating interests in any Loan owing to such Lender, any Note held by
such Lender, any Commitment of such Lender or any other interest of such Lender
under the Loan Documents. Any Person to whom such a participating interest is
sold is a "Participant". In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations under the
Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
such Lender shall remain the holder of any such Note for all purposes under the
Loan Documents, all amounts payable by the Borrower under this Agreement shall
be determined as if such Lender had not sold such participating interests, and
the Borrower and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents.
13.2.2. VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan or
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Commitment in which such Participant has an interest which forgives principal,
interest or fees or reduces the interest rate or fees payable with respect to
any such Loan or Commitment or postpones any date fixed for any
regularly-scheduled payment of principal of, or interest or fees on, any such
Loan or Commitment or releases any guarantor of any such Loan or releases any
substantial portion of collateral, if any, securing such Loan.
13.3 ASSIGNMENTS.
13.3.1. PERMITTED ASSIGNMENTS. Any Lender, in the ordinary course of
its business and in accordance with applicable law, at any time, may assign all
or any portion (greater than or equal to $5,000,000 per assignee) of its rights
and obligations under the Loan Documents. Notwithstanding the foregoing
provision, any assignment by a Lender to another Lender in the Facility or an
Affiliate thereof or an Affiliate of the assigning Lender shall not be subject
to either the $5,000,000 minimum assignment amount or the requirement set forth
below regarding Borrower's consent or the fee in Section 13.3.2(ii). Any Person
to whom such rights and obligations are assigned is a "Purchaser". Such
assignment shall be substantially in the form of Exhibit F hereto or in such
other form as may be agreed to by the parties thereto (the "Assignment"). So
long as no Default has occurred and is continuing, Borrower's consent shall be
required for any assignment provided that if such assignment is to an entity
that is a "Qualified Lender", such consent shall not be unreasonably denied or
delayed. "Qualified Lender" shall mean an institution with assets over
$5,000,000,000.00 that is generally in the business of making loans comparable
to the Loans made under this Facility and that maintains an office in the United
States. Administrative Agent may make an assignment reducing its Commitment
below $25,000,000 only if it first resigns its status as Administrative Agent or
it obtains the consent of Borrower or a Default has occurred; provided that if
such assignment reduces the Administrative Agent's Commitment below $10,000,000
it must also obtain the consent of any Lender which after such assignment would
have a Percentage greater than the new Percentage of the Lender making the
assignment. The consent of the Administrative Agent, which shall not be
unreasonably withheld, shall be required prior to an assignment becoming
effective with respect to a Purchaser which is not a Lender or an Affiliate
thereof. Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, amounts owing to it
in favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System), provided that no such
security interest or the exercise by the secured party of any of its rights
thereunder shall release Lender from its funding obligations hereunder and such
Lender shall retain all voting rights.
13.3.2. EFFECT; EFFECTIVE DATE. Upon (i) delivery to the
Administrative Agent and the Borrower of a notice of assignment,
substantially in the form attached as Exhibit "I" to Exhibit F hereto (a
"Notice of Assignment"), together with any consents required by Section
13.3.1, and (ii) payment of a $3,500 fee to the Administrative Agent for
processing such assignment, such assignment shall become effective on the
effective date specified in such Notice of Assignment. The Notice of
Assignment shall contain a representation by the Purchaser to the effect that
none of the consideration used to make the purchase of the Commitment and
Loans under the applicable assignment agreement are "plan assets" as defined
under ERISA and that the rights and interests of the Purchaser in and under
the Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and any other Loan Document executed by the
Lenders and
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shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by the Borrower, the Lenders or the Administrative
Agent shall be required to release the transferor Lender with respect to the
percentage of the Aggregate Commitment and Loans assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this
Section 13.3.2, the transferor Lender, the Administrative Agent and the
Borrower shall make appropriate arrangements so that replacement Notes are
issued to such transferor Lender, if applicable, and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their Commitment, as adjusted pursuant to such
assignment.
13.4 DESIGNATION OF LENDER TO MAKE COMPETITIVE BID LOANS.
Any Lender (each a "Designating Lender") may at any time designate one
or more Designated Lenders to fund Competitive Bid Loans which the Designating
Lender is required to fund subject to the terms of this Section 13.4 and the
provisions in Section 13.3 shall not apply to such designation. No Lender shall
be entitled to make more than two such designations. The parties to each such
designation shall execute and deliver to the Administrative Agent, for its
acceptance, a Designation Agreement in the form of Exhibit I. Upon its receipt
of an appropriately completed Designation Agreement executed by a Designating
Lender and a designee representing that it is a Designated Lender, the
Administrative Agent will accept such Designation Agreement and give prompt
notice thereof to the Borrower, whereupon, from and after the effective date
specified in the Designation Agreement, the Designated Lender shall become a
party to this Agreement with a right to make Competitive Bid Loans on behalf of
its Designating Lender pursuant to Section 2.14 after the Borrower has accepted
a Competitive Bid (or a portion thereof) of the Designating Lender. Each
Designating Lender shall serve as the agent for the Designated Lender and shall
on behalf of the Designated Lender give and receive all communications and
notices and take all actions hereunder, including without limitation votes,
approvals, waivers, consents and amendments under or relating to this Agreement
or the other Loan Documents. Any such notice, communications, vote approval,
waiver, consent or amendment shall be signed by the Designating Lender as agent
for the Designated Lender and shall not be signed by the Designated Lender. The
Borrower, the Administrative Agent and the Lenders may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same, and without
any specific designation that the Designating Lender is signing in an agency
capacity. This Section 13.4 shall survive the termination of this Agreement.
13.5 DISSEMINATION OF INFORMATION.
The Borrower authorizes each Lender to disclose to any Participant or
Purchaser or any other Person acquiring an interest in the Loan Documents by
operation of law (each a "Transferee") and any prospective Transferee any and
all information in such Lender's possession concerning the creditworthiness of
the Borrower and its Subsidiaries, provided that such Transferees agree to
maintain the confidentiality of any information that is confidential in the
manner set forth in Section 10.14.
13.6 TAX TREATMENT.
If any interest in any Loan Document is transferred to any Transferee
which is organized under the laws of any jurisdiction other than the United
States or any State thereof, the transferor
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Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 4.5.
13.7 POSSESSION OF LOAN DOCUMENTS AND REGISTER.
The Administrative Agent shall keep and maintain complete and accurate
files and records of all matters pertaining to the Loan. Upon reasonable prior
notice to the Administrative Agent by any Lender, the Administrative Agent will
make available to such Lender and their representatives and agents, the files
and records relating to the Facility for inspection and copying during normal
business hours. The Administrative Agent shall also maintain at its address
specified pursuant to Article XIV, a copy of each Assignment delivered to and
accepted by it and a listing of the names and addresses of the Lenders, the
amount of each Lender's Commitment and Percentage (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and Borrower, Administrative Agent, and the Lenders may treat
each person or entity whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection and copying by Borrower or any Lender during normal business
hours upon reasonable prior notice to the Administrative Agent.
ARTICLE XIV.
NOTICES
14.1 GIVING NOTICE.
Except as otherwise permitted by Section 2.17 with respect to borrowing
notices, all notices and other communications provided to any party hereto under
this Agreement or any other Loan Document shall be in writing or by telex or by
facsimile and addressed or delivered to such party at its address set forth
below its signature hereto or at such other address as may be designated by such
party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any notice,
if transmitted by telex or facsimile, shall be deemed given when transmitted
(answerback confirmed in the case of telexes).
14.2 CHANGE OF ADDRESS.
The Borrower, the Administrative Agent and any Lender may each change
the address for service of notice upon it by a notice in writing to the other
parties hereto.
14.3 ACCOUNTS.
The Administrative Agent shall deliver to each Lender and Borrower, and
each Lender shall deliver to Administrative Agent wiring instructions containing
account information for purposes of the payment of sums due under this
Agreement.
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ARTICLE XV.
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by telex or telephone, that it has taken such action.
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative
Agent have executed this Agreement as of the date first above written.
CENTERPOINT PROPERTIES TRUST, a Maryland real estate
investment trust
By: /s/ Rockford X. Xxxxxx
----------------------------------
Print Name: Rockford X. Xxxxxx
-------------------------------------
Title: Exec. Vice President & Treasurer
--------------------------------------
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Print Name: Xxxx X. Xxxxxx
-------------------------------------
Title: Chief Financial Officer
--------------------------------------
0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-1
COMMITMENT:
------------
$40,000,000 BANK ONE, NA,
Individually and as Administrative Agent
PERCENTAGE:
------------
By: /s/ Xxxxxxx Xxxxx
11.4286% -------------------------------------
Print Name: Xxxxxxx Xxxxx
Title: First Vice President
Corporate Real Estate
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Xxxxx 0000, 00xx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-2
COMMITMENT:
------------
$37,500,000 BANK OF AMERICA, N.A.
Individually and as Syndication Agent
PERCENTAGE:
------------ By: /s/ Xxxxxxx X. Xxxxxx
10.7143% ------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Notice Address:
Bank of America, NA
000 X. XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-3
COMMITMENT:
------------
$37,500,000 FIRST UNION NATIONAL BANK
Individually and as Documentation Agent
PERCENTAGE: By: /s/ Xxxxx Xxxxxxxx
------------ -----------------------------------
10.7143% Print Name: Xxxxx Xxxxxxxx
Title: Vice President
Notice Address:
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx, XX0
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-4
COMMITMENT:
-----------
$32,500,000 AMSOUTH BANK
Individually and as Managing Agent
PERCENTAGE: By: /s/ Xxxxx Xxxxxxx
---------- -----------------------------------
9.2857% Print Name: Xxxxx Xxxxxxx
Title: Vice President
Notice Address:
AmSouth Sonat Tower - 9th Fl.
0000 - 0xx Xxxxxx, Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-5
COMMITMENT:
-----------
$32,500,000 COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
Individually and as Managing Agent
By: /s/ E. Xxxxxx Xxxxx
PERCENTAGE: ----------------------------------------
------------ Print Name: E. Xxxxxx Xxxxx
---------------------------------
9.2857% Title: Assistant Vice President
---------------------------------------
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Print Name: Xxxxx X. Xxxxx
----------------------------------
Title: Vice President
-------------------------------------
Notice Address:
Two World Financial Center
Xxx Xxxx, XX 00000
Attention: E. Xxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-6
COMMITMENT:
------------
$32,500,000 U.S. BANK NATIONAL ASSOCIATION
Individually and as Managing Agent
PERCENTAGE: By: /s/ Xxxxxxx Xxxxxxx
---------- -----------------------------------
9.2857% Print Name: Xxxxxxx Xxxxxxx
Title: Commercial Banking Officer
Notice Address:
U.S. Bank National Association
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-7
COMMITMENT:
------------
$25,000,000 CITIZENS BANK OF RHODE ISLAND
PERCENTAGE: By: /s/ Xxxxx X. Xxxxxxxxxxxx
----------- -------------------------------------
7.1429% Print Name: Xxxxx X. Xxxxxxxxxxxx
Title:
-----------------------------------
Notice Address:
Citizens Bank of Rhode Island
One Citizens Xxxxx
Xxxx Xxxx XX0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-8
COMMITMENT:
------------
$25,000,000 LASALLE BANK, NA
PERCENTAGE: By: /s/ Xxxx Xxxx
----------- ---------------------------------------
7.1429% Print Name: Xxxx Xxxx
Title: SVP
-------------------------------------
Notice Address:
LaSalle Bank, NA
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-9
COMMITMENT:
-----------
$25,000,000 SOUTHTRUST BANK
PERCENTAGE: By: /s/ Xxxx X. Xxxxxxxxx
----------- ------------------------------------
7.1429% Name: Xxxx X. Xxxxxxxxx
Title: Group Vice President
Notice Address:
000 X. 00xx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, XX
Commercial Loan Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-10
COMMITMENT:
-----------
$17,500,000 FIRSTAR BANK
PERCENTAGE: By: /s/ Xxxxxxx Xxxxx
----------- ------------------------------------
5.00% Print Name: Xxxxxxx Xxxxx
Title: Senior Vice President
---------------------------------
Notice Address:
Firstar Bank
000 Xxxxxx Xxxxxx
XX XX-XX-00XX
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-11
COMMITMENT:
------------
$15,000,000 ERSTE BANK
PERCENTAGE: By: /s/ Xxxx Xxxxxxx
----------- --------------------------------------
4.2857% Print Name: Xxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: First Vice President
Notice Address:
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxx
Telephone: 212/000-0000
Facsimile: 212/984-5627
S-12
COMMITMENT:
------------
$10,000,000 COMERICA BANK
PERCENTAGE: By: /s/ Xxxxxx Xxxxx
----------- -------------------------------------
2.8571% Print Name: Xxxxxx Xxxxx
Title: Assistant Vice President
Notice Address:
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-13
COMMITMENT:
-----------
$10,000,000 THE NORTHERN TRUST COMPANY
PERCENTAGE: By: /s/ Xxx Xxxxxxx
----------- --------------------------------------
2.8571% Print Name: Xxx Xxxxxxx
Title: Vice President
Notice Address:
The Northern Trust Company
00 Xxxxx XxXxxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-14
COMMITMENT:
-----------
$10,000,000 KEYBANK NATIONAL ASSOCIATION
PERCENTAGE: By: /s/ Xxxxx Xxxxxx
------------ -------------------------------------
2.8571% Print Name: Xxxxx Xxxxxx
Title: Assistant Vice President
Notice Address:
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-15
