EXHIBIT 10.3
CREDIT AGREEMENT
among
BRANDYWINE REALTY TRUST
and
BRANDYWINE OPERATING PARTNERSHIP, L.P.
as Borrowers
and
THE SUBSIDIARIES OF THE BORROWERS
as Guarantors
and
THE LENDERS IDENTIFIED HEREIN
and
NATIONSBANC XXXXXXXXXX SECURITIES LLC
as Lead Arranger and Book Manager
and
NATIONSBANC MORTGAGE CAPITAL CORP.
as Administrative Agent
DATED AS OF SEPTEMBER 28, 1998
TABLE OF CONTENTS
Page
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SECTION 1 DEFINITIONS AND ACCOUNTING TERMS.......................................................................1
1.2 Computation of Time Periods and Other Definition Provisions.........................................19
1.3 Accounting Terms....................................................................................19
1.4 Joint Venture Investments...........................................................................19
SECTION 2 CREDIT FACILITY.......................................................................................20
2.1 Loans...............................................................................................20
2.3 Joint and Several Liability of the Borrowers........................................................22
2.4 Appointment of BOP..................................................................................24
2.5 Non-Recourse........................................................................................24
SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT..........................................24
3.1 Interest...........................................................................................24
3.2 Place and Manner of Payments.......................................................................25
3.5 Payment in full at Maturity........................................................................26
3.6 Computations of Interest and Fees..................................................................26
3.7 Pro Rata Treatment.................................................................................27
3.8 Sharing of Payments................................................................................27
3.9 Capital Adequacy...................................................................................28
3.10 Inability To Determine Interest Rate...............................................................28
3.11 Illegality.........................................................................................29
3.12 Requirements of Law................................................................................29
3.13 Taxes..............................................................................................30
3.14 Compensation.......................................................................................32
3.15 Mitigation; Mandatory Assignment...................................................................33
SECTION 4 GUARANTY..............................................................................................33
4.1 Guaranty of Payment.................................................................................33
4.2 Obligations Unconditional...........................................................................33
4.3 Modifications.......................................................................................34
4.4 Waiver of Rights....................................................................................35
4.5 Reinstatement.......................................................................................35
4.6 Remedies............................................................................................35
4.7 Limitation of Guaranty..............................................................................36
4.8 Rights of Contribution..............................................................................36
SECTION 5 CONDITIONS PRECEDENT..................................................................................36
5.1 Closing Conditions..................................................................................36
5.2 Conditions to All Extensions of Credit..............................................................40
SECTION 6 REPRESENTATIONS AND WARRANTIES........................................................................41
6.1 Financial Condition.................................................................................41
6.2 No Material Change..................................................................................41
6.3 Organization and Good Standing......................................................................41
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6.4 Due Authorization..................................................................................41
6.5 No Conflicts.......................................................................................42
6.6 Consents...........................................................................................42
6.7 Enforceable Obligations............................................................................42
6.8 No Default.........................................................................................42
6.9 Ownership..........................................................................................42
6.10 Indebtedness.......................................................................................43
6.11 Litigation.........................................................................................43
6.12 Taxes..............................................................................................43
6.13 Compliance with Law................................................................................43
6.14 Compliance with ERISA..............................................................................43
6.15 Organization Structure/Subsidiaries................................................................44
6.16 Use of Proceeds; Margin Stock......................................................................45
6.17 Government Regulation..............................................................................45
6.18 Environmental Matters..............................................................................45
6.19 Solvency...........................................................................................46
6.20 Investments........................................................................................47
6.21 Location of Properties.............................................................................47
6.22 Disclosure.........................................................................................47
6.23 Licenses, etc......................................................................................47
6.24 No Burdensome Restrictions.........................................................................47
6.25 Year 2000 Compliance...............................................................................47
6.26 Excluded Material Subsidiaries.....................................................................47
SECTION 7 AFFIRMATIVE COVENANTS.................................................................................48
7.1 Information Covenants..............................................................................48
7.2 Financial Covenants................................................................................52
7.3 Preservation of Existence..........................................................................53
7.4 Books and Records..................................................................................53
7.5 Compliance with Law................................................................................53
7.6 Payment of Taxes and Other Indebtedness............................................................53
7.7 Insurance..........................................................................................54
7.8 Maintenance of Assets..............................................................................54
7.9 Performance of Obligations.........................................................................54
7.10 Use of Proceeds....................................................................................54
7.11 Audits/Inspections.................................................................................55
7.12 Additional Credit Parties..........................................................................55
7.13 Interest Rate Protection Agreements................................................................55
7.14 [Intentionally Omitted]............................................................................55
7.15 Construction.......................................................................................55
7.16 Acquisitions.......................................................................................56
SECTION 8 NEGATIVE COVENANTS....................................................................................56
8.1 Indebtedness........................................................................................56
8.2 Liens...............................................................................................56
8.3 Nature of Business..................................................................................57
8.4 Consolidation and Merger............................................................................57
8.5 Sale or Lease of Assets.............................................................................57
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8.6 Advances, Investments and Loans....................................................................57
8.7 Restricted Payments................................................................................58
8.8 Transactions with Affiliates.......................................................................58
8.9 Fiscal Year; Organizational Documents..............................................................58
8.10 Limitations........................................................................................58
8.11 Other Negative Pledges.............................................................................59
8.12 Construction and Development.......................................................................59
SECTION 9 EVENTS OF DEFAULT.....................................................................................59
9.1 Events of Default...................................................................................59
9.2 Acceleration; Remedies..............................................................................62
9.3 Allocation of Payments After Event of Default.......................................................63
SECTION 10 AGENCY PROVISIONS....................................................................................64
10.1 Appointment........................................................................................64
10.2 Delegation of Duties...............................................................................64
10.3 Exculpatory Provisions.............................................................................64
10.4 Reliance on Communications.........................................................................65
10.5 Notice of Default..................................................................................65
10.6 Non-Reliance on Administrative Agent and Other Lenders.............................................66
10.7 Indemnification....................................................................................66
10.8 Administrative Agent in Its Individual Capacity....................................................67
10.9 Successor Agent....................................................................................67
SECTION 11 MISCELLANEOUS........................................................................................67
11.1 Notices...........................................................................................67
11.2 Right of Set-Off..................................................................................68
11.3 Benefit of Agreement..............................................................................68
11.4 No Waiver; Remedies Cumulative....................................................................70
11.5 Payment of Expenses; Indemnification..............................................................70
11.6 Amendments, Waivers and Consents..................................................................71
11.7 Counterparts/Telecopy.............................................................................72
11.8 Headings..........................................................................................72
11.9 Defaulting Lender.................................................................................72
11.10 Survival of Indemnification and Representations and Warranties....................................73
11.11 Governing Law; Jurisdiction.......................................................................73
11.12 Waiver of Jury Trial..............................................................................73
11.13 Time..............................................................................................74
11.14 Severability......................................................................................74
11.15 Entirety..........................................................................................74
11.16 Binding Effect....................................................................................74
11.17 Confidentiality...................................................................................75
11.18 [Intentionally Omitted]...........................................................................75
11.19 Further Assurances................................................................................75
11.20 Release of Guarantors.............................................................................75
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SCHEDULES
---------
Schedule 1.1(a) Commitment Percentages
Schedule 1.1(b) Project Xxxx Properties
Schedule 1.1(c) Excluded Material Subsidiaries
Schedule 6.15 Organization Structure/Subsidiaries
Schedule 6.21 Properties
Schedule 8.2 Existing Liens
Schedule 8.5 Preapproved Transactions
Schedule 11.1 Notices
EXHIBITS
--------
Exhibit 2.1(b) Form of Notice of Borrowing
Exhibit 2.1(e) Form of Notice of Continuation/Conversion
Exhibit 2.1(g) Form of Note
Exhibit 7.1(c) Form of Officer's Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3 Form of Assignment Agreement
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Credit Agreement") is entered into as of
September 28, 1998 among BRANDYWINE REALTY TRUST ("BRT"), a Maryland real
estate investment trust and BRANDYWINE OPERATING PARTNERSHIP, L.P. ("BOP"), a
Delaware limited partnership (collectively the "Borrowers"), certain
Subsidiaries of the Borrowers as Guarantors, the Lenders (as defined herein),
NATIONSBANC XXXXXXXXXX SECURITIES LLC as Lead Arranger and Book Manager and
NATIONSBANC MORTGAGE CAPITAL CORP., as Administrative Agent for the Lenders
(the "Administrative Agent").
RECITALS
WHEREAS, the Borrowers desire to borrow up to $150 million from the
Lenders on a short term basis;
WHEREAS, the Guarantors have agreed to unconditionally guarantee all
the obligations of the Borrowers hereunder; and
WHEREAS, the Lenders party hereto have agreed to make the requested
bridge facility available to the Borrowers on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Additional Fee Letter" means that certain fee letter, dated
as of the Closing Date, between the Borrowers and the Administrative
Agent, as amended, modified, supplemented or replaced from time to
time.
"Adjusted Base Rate" means the Base Rate plus .25% per annum.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus
2.0% per annum.
"Adjusted NOI" means NOI less (a) an annual sum of $.50 per
square foot for all Properties and (b) all interest income of the
Combined Parties for the applicable period.
"Adjusted Total Assets" means Total Assets less the Project
Xxxx Properties held by Excluded Material Subsidiaries.
"Administrative Agent" means NationsBanc Mortgage Capital
Corp. (or any successor thereto) or any successor administrative
agent appointed pursuant to Section 10.9.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited
to all directors and officers of such Person), controlled by or under
direct or indirect common control with such Person. A Person shall be
deemed to control a corporation, partnership, limited liability
company or real estate investment trust if such Person possesses,
directly or indirectly, the power (i) to vote 10% or more of the
securities having ordinary voting power for the election of directors
of such corporation, limited liability company or real estate
investment trust or to vote 10% or more of the partnership interests
of such partnership or (ii) to direct or cause direction of the
management and policies of such corporation or partnership, whether
through the ownership of voting securities, as managing or general
partner, by contract or otherwise.
"Agency Services Address" means NationsBanc Mortgage Capital
Corp., 0000 Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attn.: Xxxxxxx Xxxxxxxx-Xxxxxxx, or such other address as may be
identified by written notice from the Administrative Agent to the
Borrowers.
"Annualized Adjusted NOI" means Adjusted NOI for the most
recent fiscal quarter multiplied times four.
"Annualized Capitalized Adjusted NOI" means Annualized
Adjusted NOI divided by the Capitalization Rate.
"Annualized Capitalized Modified Adjusted NOI" means
Annualized Modified Adjusted NOI divided by the Capitalization Rate.
"Annualized Modified Adjusted NOI" means an amount equal to
(a) Adjusted NOI for the prior fiscal quarter for all Properties
owned during such entire fiscal quarter multiplied times four plus
(b) NOI for all Properties acquired during such fiscal quarter
multiplied by a fraction equal to 365/the number of days such
Property was owned by a Combined Party.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of
the United States Code, as amended, modified, succeeded or replaced
from time to time.
"Base Rate" means, for any day, the rate per annum equal to
the greater of (a) the Federal Funds Rate in effect on such day plus
1/2 of 1% or (b) the Prime Rate in effect on
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such day. Any change in the Base Rate due to a change in the Prime Rate
or the Federal Funds Rate shall be effective on the effective date of
such change in the Prime Rate or the Federal Funds Rate, respectively.
"Base Rate Loan" means a Loan bearing interest based at a
rate determined by reference to the Base Rate.
"BOP" means Brandywine Operating Partnership, L.P., a
Delaware limited partnership, together with any successors and
permitted assigns.
"Borrowers" means BRT and BOP and "Borrower" means either
one of them.
"BRT" means Brandywine Realty Trust, a Maryland real estate
investment trust, together with any successors and permitted assigns.
"Business Day" means any day other than a Saturday, a
Sunday, a legal holiday or a day on which banking institutions are
authorized or required by law or other governmental action to close
in Bethesda, Maryland, Charlotte, North Carolina or New York, New
York; provided that in the case of Eurodollar Loans, such day is also
a day on which dealings between banks are carried on in U.S. dollar
deposits in the London interbank market.
"Capital Expenditures" means all expenditures of the
Borrowers and their Subsidiaries which, in accordance with GAAP,
would be classified as Capital Expenditures, including, without
limitation, Capital Leases.
"Capital Lease" means, as applied to any Person, any lease
of any property (whether real, personal or mixed) by that Person as
lessee which, in accordance with GAAP, is or should be accounted for
as a capital lease on the balance sheet of that Person.
"Capitalization Rate" means, as of the Closing Date, 9.5%;
however, the Capitalization Rate shall be reviewed annually (but not
more often than annually) by the Lenders (beginning with the date one
year after the Closing Date) and shall be subject to adjustment by
the Required Lenders, in their sole discretion, based upon market
conditions for comparable property types; provided that the
Capitalization Rate cannot be adjusted by more than 1.25% annually.
"Cash Equivalents" means (a) securities issued or directly
and fully guaranteed or insured by the United States of America or
any agency or instrumentality thereof (provided that the full faith
and credit of the United States of America is pledged in support
thereof) having maturities of not more than twelve months from the
date of acquisition, (b) U.S. dollar denominated time and demand
deposits and certificates of deposit of (i) any Lender or any of its
Affiliates, (ii) any domestic commercial bank having capital and
surplus in excess of $500,000,000 or (iii) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent
thereof or from Xxxxx'x is at least P-1 or the equivalent thereof
(any such bank being an "Approved Bank"), in each case with
maturities of not more than 270 days from the date of acquisition,
(c) commercial paper and variable
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or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed
by, any domestic corporation rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by Moody's
and maturing within six months of the date of acquisition, (d)
repurchase agreements with a bank or trust company (including any of
the Lenders) or securities dealer having capital and surplus in excess
of $500,000,000 for direct obligations issued by or fully guaranteed by
the United States of America in which a Credit Party shall have a
perfected first priority security interest (subject to no other Liens)
and having, on the date of purchase thereof, a fair market value of at
least 100% of the amount of the repurchase obligations and (e)
Investments, classified in accordance with GAAP as current assets, in
money market investment programs registered under the Investment
Company Act of 1940, as amended, which are administered by financial
institutions having capital of at least $500,000,000 and the portfolios
of which are limited to Investments of the character described in the
foregoing subdivisions (a) through (d).
"Change of Control" means any of the following events:
(a) any "person" or "group" (within the meaning of Section
13(d) or 14(d) of the Exchange Act) has become, directly or
indirectly, the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a Person shall be deemed to
have "beneficial ownership" of all shares that any such Person has
the right to acquire, whether such right is exercisable immediately
or only after the passage of time), by way of merger, consolidation
or otherwise, of 20% or more of the voting power of BRT on a
fully-diluted basis, after giving effect to the conversion and
exercise of all outstanding warrants, options and other securities of
BRT convertible into or exercisable for voting power of BRT (whether
or not such securities are then currently convertible or
exercisable); or
(b) BRT fails to directly own at least 75% of the aggregate
ownership interests in BOP.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute thereto, as interpreted by the rules and
regulations issued thereunder, in each case as in effect from time to
time. References to sections of the Code shall be construed also to
refer to any successor sections.
"Committed Amount" means ONE HUNDRED FIFTY MILLION DOLLARS
($150,000,000).
"Commitment Percentage" means, for each Lender, the
percentage identified as its Commitment Percentage on Schedule
1.1(a), as such percentage may be modified in connection with any
assignment made in accordance with the provisions of Section 11.3.
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"Commitments" means the commitment of each Lender with
respect to the Committed Amount.
"Combined Parties" means the Credit Parties and their
Subsidiaries and all joint ventures or partnerships to which a Credit
Party or one of its Subsidiaries is a party.
"Credit Documents" means this Credit Agreement, the Notes,
and all other related agreements and documents issued or delivered
hereunder or thereunder or pursuant hereto or thereto.
"Credit Exposure" has the meaning set forth in the
definition of Required Lenders in this Section 1.1.
"Credit Parties" means the Borrowers and the Guarantors and
"Credit Party" means any one of them.
"Debt Payments" means, as of the date of determination, for
the Combined Parties, the sum of (a) Interest Expense plus (b) all
payments of principal and any required prepayments on Funded Debt of
the Combined Parties (other than balloon payments), for the
applicable period, ending on the date of determination (including the
principal component of payments due on Capital Leases during the
applicable period ending on the date of determination) plus (c) any
letter of credit fees.
"Debt Service Coverage Ratio" means the ratio of (a)
Annualized Modified Adjusted NOI to (b) the Market Funded Debt
Payments.
"Default" means any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of
Default.
"Defaulting Lender" means, at any time, any Lender that, (a)
has failed to make a Loan or purchase a Participation Interest
required pursuant to the terms of this Credit Agreement (but only for
so long as such Loan is not made or such Participation Interest is
not purchased), (b) has failed to pay to the Administrative Agent or
any Lender an amount owed by such Lender pursuant to the terms of
this Credit Agreement (but only for so long as such amount has not
been repaid) or (c) has been deemed insolvent or has become subject
to a bankruptcy or insolvency proceeding or to a receiver, trustee or
similar official.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Effective Date" means the date, as specified by the
Administrative Agent, on which the conditions set forth in Section
5.1 shall have been fulfilled (or waived in the sole discretion of
the Lenders) and on which the initial Loans shall have been made
and/or the initial Letters of Credit shall have been issued.
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"Eligible Assignee" means (a) any Lender or any Affiliate or
subsidiary of a Lender and (b) any other commercial bank, financial
institution, institutional lender or "accredited investor" (as
defined in Regulation D of the Securities and Exchange Commission)
with (i) total assets of at least $25 billion, (ii) a long term
unsecured debt rating of BBB+ or better from S&P or its equivalent
and (iii) an office in the United States. Neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental Claim" means any investigation, written
notice, violation, written demand, written allegation, action, suit,
injunction, judgment, order, consent decree, penalty, fine, lien,
proceeding, or written claim whether administrative, judicial or
private in nature arising (a) pursuant to, or in connection with, an
actual or alleged violation of, any Environmental Law, (b) in
connection with any Hazardous Material, (c) from any assessment,
abatement, removal, remedial, corrective, or other response action in
connection with an Environmental Law or other order of a Governmental
Authority or (d) from any actual or alleged damage, injury, threat,
or harm to health, safety, natural resources, or the environment.
"Environmental Laws" means any current or future legal
requirement of any Governmental Authority pertaining to (a) the
protection of health, safety, and the indoor or outdoor environment,
(b) the conservation, management, or use of natural resources and
wildlife, (c) the protection or use of surface water and groundwater
or (d) the management, manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, release,
threatened release, abatement, removal, remediation or handling of,
or exposure to, any hazardous or toxic substance or material or (e)
pollution (including any release to land surface water and
groundwater) and includes, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986,
42 USC 9601 et seq., Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of 1976 and Hazardous and
Solid Waste Amendment of 1984, 42 USC 6901 et seq., Federal Water
Pollution Control Act, as amended by the Clean Water Act of 1977, 33
USC 1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et
seq., Toxic Substances Control Act of 1976, 15 USC 2601 et seq.,
Hazardous Materials Transportation Act, 49 USC App. 1801 et seq.,
Occupational Safety and Health Act of 1970, as amended, 29 USC 651 et
seq., Oil Pollution Act of 1990, 33 USC 2701 et seq., Emergency
Planning and Community Right-to-Know Act of 1986, 42 USC 11001 et
seq., National Environmental Policy Act of 1969, 42 USC 4321 et seq.,
Safe Drinking Water Act of 1974, as amended, 42 USC 300(f) et seq.,
any analogous implementing or successor law, and any amendment, rule,
regulation, order, or directive issued thereunder.
"Equity Issuance" means any issuance by a Credit Party to
any Person (other than another Credit Party) of shares of its capital
stock, common shares of beneficial interest or other equity
interests, including pursuant to the exercise of options or warrants
or pursuant to the conversion of any debt securities to equity;
provided that the definition of Equity Issuance as used herein shall
not include (a) issuances of equity to employees of a Credit Party to
the extent such issuances do not exceed $1,000,000 in any one
instance or $5,000,000, in the aggregate, during the term of this
Credit Agreement or (b) issuances of
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common stock for the sole purpose of conversion or redemption of
convertible preferred stock or perpetual preferred stock.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted
by the rules and regulations thereunder, all as the same may be in
effect from time to time. References to sections of ERISA shall be
construed also to refer to any successor sections.
"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with a Borrower or any of
its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA,
or is a member of a group which includes a Borrower and which is
treated as a single employer under Sections 414(b) or (c) of the
Code.
"ERISA Event" means (i) with respect to any Plan, the
occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (ii) the
withdrawal of a Borrower, any Subsidiary of a Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which
it was a substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan;
(iii) the distribution of a notice of intent to terminate or the
actual termination of a Plan pursuant to Section 4041(a)(2) or 4041A
of ERISA; (iv) the institution of proceedings to terminate or the
actual termination of a Plan by the PBGC under Section 4042 of ERISA;
(v) any event or condition which might constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan; (vi) the complete or partial
withdrawal of a Borrower, any Subsidiary of a Borrower or any ERISA
Affiliate from a Multiemployer Plan; (vii) the conditions for
imposition of a lien under Section 302(f) of ERISA exist with respect
to any Plan; or (viii) the adoption of an amendment to any Plan
requiring the provision of security to such Plan pursuant to Section
307 of ERISA.
"Eurodollar Loan" means a Loan bearing interest based at a
rate determined by reference to the Adjusted Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
determined pursuant to the following formula:
Eurodollar Rate = London Interbank Offered Rate
---------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means, for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as such regulation may be amended
from time to time, or any successor regulation, as the maximum
reserve requirement (including, without limitation, any basic,
supplemental, emergency, special, or marginal reserves) applicable
with respect to Eurodollar liabilities as that term is defined in
Regulation D (or against any other category of liabilities that
includes deposits by reference to which the
7
interest rate of Eurodollar Loans is determined) with respect to member
banks of the Federal Reserve System, whether or not any Lender has any
Eurodollar liabilities subject to such reserve requirement at that
time. Eurodollar Loans shall be deemed to constitute Eurodollar
liabilities and as such shall be deemed subject to reserve requirements
without benefits of credits for proration, exceptions or offsets that
may be available from time to time to a Lender. The Adjusted Eurodollar
Rate shall be adjusted automatically on and as of the effective date of
any change in the Eurodollar Reserve Percentage.
"Event of Default" means any of the events or circumstances
described in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, modified, succeeded or replaced from time to time, and the
rules and regulations promulgated thereunder.
"Excluded Material Subsidiaries" means the Material
Subsidiaries set forth on Schedule 1.1(c).
"Existing Bridge Facility" means that certain Promissory
Note, dated May 7, 1998, executed by the Borrowers in favor of
NationsBank, N.A., in the face amount of $150 million, and all
documents and instruments executed and delivered in connection
therewith.
"Extension of Credit" means, as to any Lender, the making of
a Loan by such Lender (or a participation therein by a Lender).
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day and (b) if no such rate is so
published on such next preceding Business Day, the Federal Funds Rate
for such day shall be the average rate quoted to the Administrative
Agent on such day on such transactions as determined by the
Administrative Agent.
"Fee Letter" means that certain letter agreement, dated as
of July 30, 1998, between the Administrative Agent and BRT, as
amended, modified, supplemented or replaced from time to time.
"Fixed Charge Coverage Ratio" means, for any period, the
ratio of (a) Adjusted NOI for such period to (b) the sum of Debt
Payments for such period plus all dividends on preferred stock for
such period plus Letter of Credit Fees payable pursuant to Section
3.4(b)(i) of the Senior Credit Agreement for such period.
8
"Funded Debt" means, without duplication, the sum of (a) all
Indebtedness of the Combined Parties for borrowed money, (b) all
purchase money Indebtedness of the Combined Parties, (c) the
principal portion of all obligations of the Combined Parties under
Capital Leases, (d) all obligations, contingent or otherwise,
relative to the face amount of all letters of credit (other than
letters of credit supporting trade payables in the ordinary course of
business), whether or not drawn, and banker's acceptances issued for
the account of a Combined Party (it being understood that, to the
extent an undrawn letter of credit supports another obligation
consisting of Indebtedness, in calculating aggregated Funded Debt
only such other obligation shall be included), (e) all Guaranty
Obligations of the Combined Parties with respect to Funded Debt of
another Person, (f) all Funded Debt of another entity secured by a
Lien on any property of the Combined Parties whether or not such
Funded Debt has been assumed by a Combined Party, (g) all Funded Debt
of any partnership or unincorporated joint venture to the extent a
Combined Party is legally obligated or has a reasonable expectation
of being liable with respect thereto, net of any assets of such
partnership or joint venture, (h) the principal balance outstanding
under any synthetic lease, tax retention operating lease, off-balance
sheet loan or similar off-balance sheet financing product of a
Combined Party where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease
in accordance with GAAP, (i) all obligations of the Combined Parties
in respect of interest rate protection agreements, foreign currency
exchange agreements or other interest or exchange rate or commodity
price hedging agreements and (j) all take out loan commitments to the
extent such take out commitment is not supported by a financial
commitment from a third party containing standard terms and
conditions. The calculation of Funded Debt of the Combined Parties
shall be subject to Section 1.4.
"Funds From Operations", when used with respect to any
Person, shall have the meaning given to such term in, and shall be
calculated in accordance with, standards promulgated by the National
Association of Real Estate Investment Trusts in effect from time to
time.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to Section
1.3.
"Governmental Authority" means any Federal, state, local or
provincial court or governmental agency, authority, instrumentality
or regulatory body.
"Guarantors" means (a) the Material Subsidiaries of the
Borrowers, as of the Closing Date, other than the Excluded Material
Subsidiaries and (b) such other Persons who may from time to time
execute a Joinder Agreement (or otherwise consent in writing to
becoming a Guarantor hereunder), as required by Section 7.12 or
otherwise, in each case together with their successors and assigns.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Indebtedness of
any other Person in any manner, whether direct or indirect, and
including
9
without limitation any obligation, whether or not contingent, (a) to
purchase any such Indebtedness or other obligation or any property
constituting security therefor, (b) to advance or provide funds or
other support for the payment or purchase of such indebtedness or
obligation or to maintain working capital, solvency or other balance
sheet condition of such other Person (including, without limitation,
maintenance agreements, comfort letters, take or pay arrangements, put
agreements or similar agreements or arrangements) for the benefit of
the holder of Indebtedness of such other Person, (c) to lease or
purchase property, securities or services primarily for the purpose of
assuring the owner of such Indebtedness or (d) to otherwise assure or
hold harmless the owner of such Indebtedness or obligation against loss
in respect thereof. The amount of any Guaranty Obligation hereunder
shall (subject to any limitations set forth therein) be deemed to be an
amount equal to the outstanding principal amount (or maximum principal
amount, if larger) of the Indebtedness in respect of which such
Guaranty Obligation is made.
"Hazardous Materials" means any substance, material or waste
defined or regulated in or under any Environmental Laws.
"Incentive Stock Plan" means the BRT 1997 Long-Term
Incentive Plan, as amended from time to time, and any other equity
incentive plan hereafter established by BRT pursuant to which awards
of equity interests in BRT may be made to employees of BRT or a
Subsidiary.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, or upon which interest payments are customarily
made (c) all obligations of such Person under conditional sale or
other title retention agreements relating to property purchased by
such Person to the extent of the value of such property (other than
customary reservations or retentions of title under agreements with
suppliers entered into in the ordinary course of business), (d) all
obligations, other than intercompany items, of such Person issued or
assumed as the deferred purchase price of property or services
purchased by such Person which would appear as liabilities on a
balance sheet of such Person, (e) all Indebtedness of others secured
by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on, or
payable out of the proceeds of production from, property owned or
acquired by such Person, whether or not the obligations secured
thereby have been assumed, (f) all Guaranty Obligations of such
Person, (g) the principal portion of all obligations of such Person
under (i) Capital Leases and (ii) any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet
financing product of such Person where such transaction is considered
borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP, (h) all obligations of such
Person in respect of interest rate protection agreements, foreign
currency exchange agreements, or other interest or exchange rate or
commodity price hedging agreements, (i) the maximum amount of all
performance and standby letters of credit issued or bankers'
acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (j) all preferred stock issued by such Person and
required by the terms thereof to be redeemed, or for which mandatory
sinking fund
10
payments are due, by a fixed date; provided that Indebtedness shall
not include outstanding convertible preferred stock which carries a
defined term if its conversion or redemption occurs solely through
the issuance of additional equity or from the proceeds of an equity
offering, (k) all obligations evidenced by take out commitments, (l)
the aggregate amount of uncollected accounts receivables of such
Person subject at such time to a sale of receivables (or similar
transaction) regardless of whether such transaction is effected
without recourse to such Person or in a manner that would not be
reflected on the balance sheet of such Person in accordance with
GAAP and (m) all obligations of such Person to repurchase any
securities which repurchase obligation is related to the issuance
thereof, including, without limitation, obligations commonly known
as residual equity appreciation potential shares. Subject to the
terms of Section 1.4, the Indebtedness of any Person shall include
the Indebtedness of any partnership or unincorporated joint venture
in which such Person is legally obligated or has a reasonable
expectation of being liable with respect thereto.
"Interest Coverage Ratio" means, for any period, the ratio
of (a) Adjusted NOI for such period to (b) Interest Expense for such
period.
"Interest Expense" means, for any period, with respect to
the Credit Parties and their Subsidiaries on a consolidated basis,
all net interest expense, whether paid or accrued (including that
portion applicable to Capital Leases in accordance with GAAP) plus
capitalized interest.
"Interest Payment Date" means (a) as to Base Rate Loans, the
last Business Day of each month and the Maturity Date, (b) as to
Eurodollar Loans, the last day of the applicable Interest Period and
the Maturity Date.
"Interest Period" means, as to Eurodollar Loans, a period of
one, two, three or six months' duration as the Borrowers may elect,
commencing, in each case, on the date of the borrowing (including
continuations and conversions thereof); provided, however, (a) if any
Interest Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
(except that where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day),
(b) no Interest Period shall extend beyond the Maturity Date, and (c)
where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the
Interest Period is to end, such Interest Period shall end on the last
Business Day of such calendar month.
"Investment" in any Person means (a) the acquisition
(whether for cash, property, services, assumption of Indebtedness,
securities or otherwise) of assets, shares of capital stock, bonds,
notes, debentures, partnership, joint ventures or other ownership
interests or other securities of such other Person or (b) any deposit
with, or advance, loan or other extension of credit to, such Person
(other than deposits made in connection with the purchase of
equipment or other assets in the ordinary course of business) or (c)
any other capital contribution to or investment in such Person,
including, without limitation, any Guaranty Obligation (including any
support for a letter of credit issued on behalf of such Person)
incurred for the benefit of such Person.
11
"Joinder Agreement" means a Joinder Agreement substantially
in the form of Exhibit 7.12.
"Lender" means any of the Persons identified as a "Lender"
on the signature pages hereto, and any Person which may become a
Lender by way of assignment in accordance with the terms hereof,
together with their successors and permitted assigns.
"Leverage Ratio" means the ratio of (a) Funded Debt to (b)
the sum of Annualized Capitalized Modified Adjusted NOI plus all
unrestricted cash of the Combined Parties plus all Cash Equivalents
of the Combined Parties plus all tenant security deposits held by the
Combined Parties plus all amounts invested by the Combined Parties in
construction-in-process plus all mortgage note receivables of the
Combined Parties plus all net cash investments in opportunity funds
of the Combined Parties.
"Lien" means any mortgage, pledge, hypothecation,
assignment, deposit arrangement, security interest, encumbrance, lien
(statutory or otherwise), preference, priority or charge of any kind,
including, without limitation, any agreement to give any of the
foregoing, any conditional sale or other title retention agreement,
and any lease in the nature thereof.
"Loans" means the loans made to the Borrowers pursuant to
Section 2.1.
"London Interbank Offered Rate" means, for any Eurodollar
Loan for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%) appearing on
Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Telerate
Page 3750, the applicable rate shall be the arithmetic mean of all
such rates. If for any reason such rate is not available, the term
"London Interbank Offered Rate" shall mean, for any Eurodollar Loan
for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates.
"Market Funded Debt Payments" means the scheduled debt
payments that would have been due during a twelve month period with
respect to the Funded Debt of the Combined Parties as of the last day
of the prior fiscal quarter assuming a principal mortgage
amortization of 25 years and assuming the Market Interest Rate as in
effect on the date that the Market Funded Debt Payments are
calculated.
12
"Market Interest Rate" means an interest rate equal to the
greater of (a) the prior 30 day average of the most recent seven year
U.S. Treasury Note plus 2.00% per annum or (b) 8.50% per annum.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, condition (financial or
otherwise) or prospects of a Combined Party, (b) the ability of a
Credit Party to perform its respective obligations under this Credit
Agreement or any of the other Credit Documents, or (c) the validity
or enforceability of this Credit Agreement, any of the other Credit
Documents, or the rights and remedies of the Lenders hereunder or
thereunder taken as a whole.
"Material Subsidiary" means a Subsidiary of a Credit Party
in which such Credit Party owns, directly or indirectly, more than
65% of the capital stock, partnership interests or other equity
interests.
"Maturity Date" means March 31, 1999.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan (other than a
Multiemployer Plan) in which a Credit Party or any ERISA Affiliate
and at least one employer other than a Credit Party or any ERISA
Affiliate are contributing sponsors.
"Net Cash Proceeds" means the gross cash proceeds received
from an Equity Issuance net of actual transaction costs payable to
third parties.
"Net Income" means, for any period, the net income for such
period of the Combined Parties, as determined in accordance with
GAAP.
"Net Worth" means, as of any date, the net worth of Credit
Parties and their Subsidiaries on a consolidated basis, as determined
in accordance with GAAP.
"NMS" means NationsBanc Xxxxxxxxxx Securities LLC or any
successor thereto.
"NOI" means an amount equal to (a) Net Income for such
period (excluding the effect of any extraordinary or other non
recurring gains or losses or other non cash losses outside the
ordinary course of business) plus (b) an amount which in the
determination of Net Income for such period has been deducted for (i)
proceeds to minority interests, (ii) income taxes, (iii) depreciation
and amortization and (iv) Interest Expense, less (c) to the extent
not previously deducted in calculating Net Income for such period,
the greater of (i) actual management fee expenditures of the Combined
Parties or (ii) 3% of the total real estate revenue of the Combined
Parties.
13
"Non-Excluded Taxes" has the meaning set forth in
Section 3.13.
"Note" or "Notes" means the promissory notes of the
Borrowers in favor of each of the Lenders evidencing the Loans
provided pursuant to Section 2.1, individually or collectively, as
appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time and as
evidenced in the form of Exhibit 2.1(g).
"Notice of Borrowing" means a request by the Borrowers for a
Loan, in the form of Exhibit 2.1(b).
"Notice of Continuation/Conversion" means a request by the
Borrowers to continue an existing Eurodollar Loan to a new Interest
Period or to convert a Eurodollar Loan to a Base Rate Loan or to
convert a Base Rate Loan to a Eurodollar Loan, in the form of Exhibit
2.1(e).
"Obligations" means, without duplication, all of the
obligations of the Credit Parties to the Lenders and the
Administrative Agent, whenever arising, under this Credit Agreement,
the Notes, or any of the other Credit Documents to which a Credit
Party is a party.
"Participation Interest" means the Extension of Credit by a
Lender by way of a purchase of a participation in any Loans as
provided in Section 3.8.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereof.
"Permitted Investments" means Investments which are (a) cash
or Cash Equivalents, (b) accounts receivable created, acquired or
made in the ordinary course of business and payable or dischargeable
in accordance with customary trade terms, (c) Investments by one
Credit Party in another Credit Party, (d) the acquisition of new
Properties; provided that the Credit Parties may not invest in
undeveloped land in excess of 5% of Total Assets, in the aggregate,
except for such undeveloped land that is adjacent to or contiguous
with other assets being acquired or assets already owned or such land
is part of a construction project approved by the Required Lenders,
has all necessary local permits and approvals and construction will
commence within six months of acquisition, (e) xxxxxxx money and
similar deposits in respect of Properties made in the ordinary course
of business, (f) Investments, as of the Effective Date, in the
Subsidiaries of the Credit Parties that own the Project Xxxx
Properties; provided that no additional Investments in such
Subsidiaries may occur after the Effective Date except as permitted
by clauses (g) and (h) below, (g) in addition to the Investments in
clause (f) above, Investments in Subsidiaries which are not Credit
Parties and Investments in joint ventures (whether or not
Subsidiaries) not to exceed, in the aggregate at any one time, 15% of
Adjusted Total Assets, (h) Investments not otherwise described in or
covered by the other subclauses of this definition (including,
without limitation, Investments in Persons that are not Subsidiaries
or joint ventures (whether or not
14
Subsidiaries)), loans to officers, directors and employees and
repurchases of its capital stock (including the repurchase of stock
that is retired, cancelled or terminated) or other ownership interests
(including options, warrants and stock appreciation rights) by a
Borrower or any Subsidiary); provided that (i) such Investments do not
exceed, in the aggregate at any one time, 10% of Adjusted Total Assets
and (ii) such Investments, together with the Investments referred to in
the previous subclause (g), do not exceed (in the aggregate at any one
time) 20% of Adjusted Total Assets.
"Permitted Liens" means (a) Liens securing Obligations, (b)
Liens for taxes not yet due or Liens for taxes being contested in
good faith by appropriate proceedings for which adequate reserves
determined in accordance with GAAP have been established (and as to
which the property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof), (c) Liens in respect
of property imposed by law arising in the ordinary course of business
such as materialmens', mechanics', warehousemens', carriers',
landlords' and other nonconsensual statutory Liens which are not yet
due and payable or which are being contested in good faith by
appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which the
property subject to any such Lien is not yet subject to foreclosure,
sale or loss on account thereof); (d) Liens arising from good faith
deposits in connection with or to secure performance of tenders,
bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations incurred in the ordinary course
of business (other than obligations in respect of the payment of
borrowed money), (e) Liens arising from good faith deposits in
connection with or to secure performance of statutory obligations and
surety and appeal bonds, (f) easements, rights-of-way, restrictions
(including zoning restrictions), matters of plat, minor defects or
irregularities in title and other similar charges or encumbrances
not, in any material respect, impairing the use of the encumbered
property for its intended purposes, (g) judgment Liens that would not
constitute an Event of Default, (h) Liens arising by virtue of any
statutory or common law provision relating to bankers' liens, rights
of setoff or similar rights as to deposit accounts or other funds
maintained with a creditor depository institution, (i) Liens on the
Properties as indicated on Schedule 8.5 if such Lien is incurred on
or before March 31, 1999 (j) Liens in connection with Indebtedness
permitted by Section 8.1(d); provided that if such Lien is created
with respect to a Property that was previously unencumbered (other
than such Liens permitted pursuant to clause (i) above), (A) the
Borrowers shall give the Administrative Agent prior written notice of
the creation of such Lien and (B) after giving effect to such Lien,
(x) the Credit Parties shall be in compliance on a Pro Forma Basis
with the financial covenants set forth in Section 7.2 and (y) no
Default or Event of Default shall exist (and the Borrowers shall
deliver a certificate to that effect) and (k) Liens existing on the
date hereof and identified on Schedule 8.2; provided that no such
Lien shall extend to any property other than the property subject
thereto on the Closing Date.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated), or any Governmental
Authority.
15
"Plan" means any employee benefit plan (as defined in
Section 3(3) of ERISA) which is covered by ERISA and with respect to
which a Borrower or any ERISA Affiliate is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed
to be) an "employer" within the meaning of Section 3(5) of ERISA.
"Prime Rate" means the per annum rate of interest
established from time to time by the Administrative Agent at its
principal office in Charlotte, North Carolina (or such other
principal office of the Administrative Agent as communicated in
writing to the Borrowers and the Lenders) as its Prime Rate. Any
change in the interest rate resulting from a change in the Prime Rate
shall become effective as of 12:01 a.m. of the Business Day on which
each change in the Prime Rate is announced by the Administrative
Agent. The Prime Rate is a reference rate used by the Administrative
Agent in determining interest rates on certain loans and is not
intended to be the lowest rate of interest charged on any extension
of credit to any debtor.
"Pro Forma Basis" means with respect to (a) the sale of a
Property or the sale of an equity interest in a Credit Party or (b)
the creation of a Lien on a Property, that such sale or creation of
Lien shall be deemed to have occurred as of the first day of the four
fiscal quarter period ending as of the last day of the most recent
fiscal quarter for which the Lenders have received the financial
information required by Section 7.1(b).
"Project Xxxx Properties" means the Properties set forth on
Schedule 1.1(b).
"Properties" means all real properties owned by the Credit
Parties and their Subsidiaries whether directly or through a joint
venture investment.
"Regulation D, U, or X" means Regulation D, U or X,
respectively, of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion
thereof.
"REIT" means a real estate investment trust as defined in
Sections 856-860 of the Code.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
notice requirement has been waived by regulation.
"Required Lenders" means the Administrative Agent together
with the Lenders whose aggregate Credit Exposure (as hereinafter
defined) constitutes at least 66 2/3% of the Credit Exposure of all
Lenders at such time; provided, however, that if any Lender shall be
a Defaulting Lender at such time then there shall be excluded from
the determination of Required Lenders the aggregate principal amount
of Credit Exposure of such Lender at such time. For purposes of the
preceding sentence, the term "Credit Exposure" as applied to each
Lender shall mean (a) at any time prior to the termination of the
Commitments, the sum of the Commitment Percentage of such Lender
multiplied by the Committed Amount and (b) at any time after the
termination of the Commitments, the sum of the principal balance of
the outstanding Loans of such Lender.
16
"Requirement of Law" means, as to any Person, the articles
or certificate of incorporation and by-laws or other organizational
or governing documents of such Person, and any law, treaty, rule or
regulation or final, non-appealable determination of an arbitrator or
a court or other Governmental Authority, in each case applicable to
or binding upon such Person or to which any of its material property
is subject.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., or any successor or assignee of the business of
such division in the business of rating securities.
"Secured Debt" means all Funded Debt of the Combined Parties
that is subject to a Lien in favor of the creditor holding such
Funded Debt; provided that any Funded Debt owed to the Lenders
hereunder shall be considered to be Unsecured Debt even if a Lien has
been granted in favor of the Lenders.
"Secured Debt Ratio" means the ratio of (a) Secured Debt to
(b) Annualized Capitalized Modified Adjusted NOI plus, to the extent
Secured Debt includes Funded Debt on construction-in-process, total
construction costs with respect to such construction-in-process.
"Securities Act" means the Securities Act of 1933, as
amended, modified, succeeded or replaced from time to time, and the
rules and regulations promulgated thereunder.
"Senior Credit Agreement" means that certain Second Amended
and Restated Credit Agreement, dated as of the date hereof, among the
Borrowers, the Guarantors, NationsBank, N.A., as Administrative
Agent, and the lenders party thereto.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan or a
Multiple Employer Plan.
"Solvent" means, with respect to any Person as of a
particular date, that on such date (a) such Person is able to pay its
debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (b) such
Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature in their ordinary course, (c) such
Person is not engaged in a business or a transaction, and is not
about to engage in a business or a transaction, for which such
Person's assets would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry
in which such Person is engaged or is to engage, (d) the fair value
of the assets of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities,
of such Person and (e) the present fair saleable value of the assets
of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become
absolute and matured. In computing the amount of contingent
liabilities at any time, it is intended that such liabilities will be
computed at the amount which, in light of all
17
the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
"Subsidiary" means, as to any Person, (a) any corporation
more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the
time, any class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is
at the time owned by such Person directly or indirectly through
Subsidiaries, and (b) any partnership, association, joint venture,
limited liability company, trust or other entity in which such Person
directly or indirectly through Subsidiaries has more than a 50%
equity interest at any time.
"Termination Event" means (a) with respect to any Single
Employer Plan, the occurrence of a Reportable Event or the
substantial cessation of operations (within the meaning of Section
4062(e) of ERISA); (b) the withdrawal of any Credit Party or any of
its Subsidiaries or any ERISA Affiliate from a Multiple Employer Plan
during a plan year in which it was a substantial employer (as such
term is defined in Section 4001(a)(2) of ERISA), or the termination
of a Multiple Employer Plan; (c) the distribution of a notice of
intent to terminate or the actual termination of a Plan pursuant to
Section 4041(a)(2) or 4041A of ERISA; (d) the institution of
proceedings to terminate or the actual termination of a Plan by the
PBGC under Section 4042 of ERISA; (e) any event or condition which
might reasonably constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer,
any Plan; or (f) the complete or partial withdrawal of any Credit
Party or any of its Subsidiaries or any ERISA Affiliate from a
Multiemployer Plan.
"Total Assets" means all assets of the Credit Parties and
their Subsidiaries on a consolidated basis, as determined in
accordance with GAAP.
"Unencumbered Cash Flow Ratio" means the ratio of (a)
Annualized Modified Adjusted NOI with respect to Unsecured Properties
to (b) Market Funded Debt Payments on Unsecured Debt.
"Unsecured Debt" means the sum of all Funded Debt of the
Combined Parties that was incurred, and continues to be outstanding,
without granting a Lien to the creditor holding such Funded Debt;
provided that all Funded Debt of the Combined Parties owing to the
Lenders under this Credit Agreement shall be considered to be
Unsecured Debt even if a Lien has been granted in favor of the
Lenders.
"Unsecured Debt Ratio" means the ratio of (a) Annualized
Capitalized Modified Adjusted NOI with respect to all Unsecured
Properties to (b) Unsecured Debt.
"Unsecured Properties" means all Properties that are not
subject to a Lien other than nonconsensual Permitted Liens and (b)
Liens in favor of the Lenders.
18
"Year 2000 Problem" means any risk that any computer
hardware, software or other equipment used by a Credit Party or any
of its Subsidiaries (or by any of its suppliers or vendors that is
material to its business) will not function as effectively and
reliably on and after January 1, 2000 as it does prior to January 1,
2000, to the extent such risk would cause or be reasonably expected
to cause a Material Adverse Effect.
1.2 Computation of Time Periods and Other Definition Provisions.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding." References in this Credit Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or
Exhibits of or to this Credit Agreement unless otherwise specifically
provided.
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall be prepared, in accordance with GAAP applied on a
consistent basis. All financial statements delivered to the Lenders hereunder
shall be accompanied by a statement from the Borrowers that GAAP has not
changed since the most recent financial statements delivered by the Borrowers
to the Lenders or if GAAP has changed describing such changes in detail and
explaining how such changes affect the financial statements. All calculations
made for the purposes of determining compliance with this Credit Agreement
shall (except as otherwise expressly provided herein) be made by application
of GAAP applied on a basis consistent with the most recent annual or quarterly
financial statements delivered pursuant to Section 7.1 (or, prior to the
delivery of the first financial statements pursuant to Section 7.1, consistent
with the financial statements described in Section 5.1(f)); provided, however,
if (a) the Borrowers shall object to determining such compliance on such basis
at the time of delivery of such financial statements due to any change in GAAP
or the rules promulgated with respect thereto or (b) the Administrative Agent
or the Required Lenders shall so object in writing within 60 days after
delivery of such financial statements (or after the Lenders have been informed
of the change in GAAP affecting such financial statements, if later), then
such calculations shall be made on a basis consistent with the most recent
financial statements delivered by the Borrowers to the Lenders as to which no
such objection shall have been made.
1.4 Joint Venture Investments.
With respect to any ownership of a Property by a Credit Party or one
of its Subsidiaries through a joint venture (a) NOI, Adjusted NOI, Annualized
Adjusted NOI, Annualized Capitalized Adjusted NOI, Annualized Modified
Adjusted NOI and Annualized Capitalized Modified Adjusted NOI shall be
calculated in accordance with such Credit Party's (or Subsidiary's) ownership
interest in the net cash flow of such joint venture and (b) Indebtedness and
Funded Debt shall be calculated as follows: (i) if the Indebtedness of such
joint venture is recourse to such Credit Party (or Subsidiary), then the
amount of such Indebtedness or Funded Debt that is recourse to such Credit
Party (or Subsidiary), and (ii) if the Indebtedness of such joint venture is
not recourse to such Credit Party (or Subsidiary), then such Credit Party's
(or Subsidiary's) pro rata interest in such Indebtedness or Funded Debt.
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SECTION 2
CREDIT FACILITY
2.1 Loans.
(a) Loan Commitment. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make loans (each a
"Loan" and collectively the "Loans") to the Borrowers, in Dollars, at
any time and from time to time, during the period from and including
the Effective Date to but not including the Maturity Date or such
earlier date if the Committed Amount has been terminated as provided
herein; provided, however, that (i) the sum of the aggregate
principal amount of Loans advanced hereunder shall not exceed the
Committed Amount and (ii) with respect to each individual Lender, the
Lender's pro rata share of outstanding Loans shall not exceed such
Lender's Commitment Percentage of the Committed Amount.
(b) Method of Borrowing for Loans. By no later than 11:00
a.m. (i) one Business Day prior to the date of the requested
borrowing of Loans that will be Base Rate Loans or (ii) three
Business Days prior to the date of the requested borrowing of Loans
that will be Eurodollar Loans, the Borrowers shall submit an
irrevocable written Notice of Borrowing in the form of Exhibit 2.1(b)
to the Administrative Agent setting forth (A) the amount requested,
(B) whether such Loans shall be Base Rate Loans or Eurodollar Loans,
(C) with respect to Loans that will be Eurodollar Loans, the Interest
Period applicable thereto; provided, however, that prior to December
31, 1998, or such earlier date as agreed to by the Administrative
Agent, the Borrowers may not, without the consent of the
Administrative Agent, request any Interest Period for Eurodollar
Loans other than a one-month Interest Period, (D) the purpose of the
proceeds of the Loans and (E) certification that the Borrowers have
complied in all respects with Section 5.2.
(c) Funding of Loans. Upon receipt of a Notice of Borrowing,
the Administrative Agent shall promptly inform the Lenders as to the
terms thereof. Each Lender shall make its Loan Commitment Percentage
of the requested Loans available to the Administrative Agent by 1:00
p.m. on the date specified in the Notice of Borrowing by deposit, in
Dollars, of immediately available funds at the offices of the
Administrative Agent at its principal office in Charlotte, North
Carolina or at such other address as the Administrative Agent may
designate in writing. The amount of the requested Loans will then be
made available to the Borrowers by the Administrative Agent by
crediting the account of the Borrowers on the books of such office of
the Administrative Agent, to the extent the amount of such Loans are
made available to the Administrative Agent.
No Lender shall be responsible for the failure or delay by
any other Lender in its obligation to make Loans hereunder; provided,
however, that the failure of any Lender to
20
fulfill its obligations hereunder shall not relieve any other Lender
of its obligations hereunder. Unless the Administrative Agent shall
have been notified by any Lender prior to the date of any such Loan
that such Lender does not intend to make available to the
Administrative Agent its portion of the Loans to be made on such
date, the Administrative Agent may assume that such Lender has made
such amount available to the Administrative Agent on the date of such
Loans, and the Administrative Agent in reliance upon such assumption,
may (in its sole discretion but without any obligation to do so) make
available to the Borrowers a corresponding amount. If such
corresponding amount is not in fact made available to the
Administrative Agent, the Administrative Agent shall be able to
recover such corresponding amount from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent will
promptly notify the Borrowers, and the Borrowers shall immediately
pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover from the
Lender or the Borrowers, as the case may be, interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent
to the Borrowers to the date such corresponding amount is recovered
by the Administrative Agent at a per annum rate equal to (i) from the
Borrowers at the applicable rate for such Loan pursuant to the Notice
of Borrowing and (ii) from a Lender at the Federal Funds Rate.
(d) [Intentionally Omitted]
(e) Continuations and Conversions. The Borrowers shall have
the option, on any Business Day, to continue existing Eurodollar
Loans for a subsequent Interest Period, to convert Base Rate Loans
into Eurodollar Loans, or to convert Eurodollar Loans into Base Rate
Loans; provided, however, that (i) each such continuation or
conversion must be requested by the Borrowers pursuant to a written
Notice of Continuation/Conversion, in the form of Exhibit 2.1(e), in
compliance with the terms set forth below, (ii) except as provided in
Section 3.11, Eurodollar Loans may only be continued or converted on
the last day of the Interest Period applicable thereto, (iii)
Eurodollar Loans may not be continued nor may Base Rate Loans be
converted into Eurodollar Loans during the existence and continuation
of a Default or Event of Default and (iv) any request to continue a
Eurodollar Loan that fails to comply with the terms hereof or any
failure to request a continuation of a Eurodollar Loan at the end of
an Interest Period shall result in a conversion of such Eurodollar
Loan to a Base Rate Loan on the last day of the applicable Interest
Period. Each continuation or conversion must be requested by the
Borrowers no later than 11:00 a.m. (A) one Business Day prior to the
date for a requested conversion of a Eurodollar Loan to a Base Rate
Loan or (B) three Business Days prior to the date for a requested
continuation of a Eurodollar Loan or conversion of a Base Rate Loan
to a Eurodollar Loan, in each case pursuant to a written Notice of
Continuation/Conversion submitted to the Administrative Agent which
shall set forth (x) whether the Borrowers wish to continue or convert
such Loans and (y) if the request is to continue a Eurodollar Loan or
convert a Loan to a Eurodollar Loan, the Interest Period applicable
thereto; provided that prior to December 31, 1998, the Borrowers may
not, without the consent of the Administrative Agent, request any
Interest Period for Eurodollar Loans other than a one-month Interest
Period.
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(f) Minimum Amounts/Restrictions on Loans. Each request for
a borrowing, conversion or continuation shall be subject to the
requirements that (i) each Eurodollar Loan shall be in a minimum
amount of $1,000,000 and in integral multiples of $100,000 in excess
thereof, (ii) each Base Rate Loan shall be in a minimum amount of
$500,000 (and integral multiples of $100,000 in excess thereof) or
the remaining amount available under the Committed Amount, (iii) no
more than six Loans shall be made during any one month and (iv) no
more than eight Eurodollar Loans shall be outstanding at any one
time. For the purposes of this Section, all Eurodollar Loans with the
same Interest Periods beginning on the same date shall be considered
as one Eurodollar Loan, but Eurodollar Loans with different Interest
Periods, even if they begin on the same date, shall be considered as
separate Eurodollar Loans.
(g) Notes. The Loans made by each Lender shall be evidenced
by a duly executed promissory note of the Borrowers to each Lender in
the face amount of its Loan Commitment Percentage of the Committed
Amount in substantially the form of Exhibit 2.1(g).
2.2 [Intentionally Omitted]
2.3 Joint and Several Liability of the Borrowers.
(a) Each of the Borrowers is accepting joint and several
liability hereunder in consideration of the financial accommodation
to be provided by the Lenders under this Credit Agreement, for the
mutual benefit, directly and indirectly, of each of the Borrowers and
in consideration of the undertakings of each of the Borrowers to
accept joint and several liability for the obligations of each of
them.
(b) Each of the Borrowers jointly and severally hereby
irrevocably and unconditionally accepts, not merely as a surety but
also as a co-debtor, joint and several liability with the other
Borrowers with respect to the payment and performance of all of the
Obligations arising under this Credit Agreement and the other Credit
Documents, it being the intention of the parties hereto that all the
Obligations shall be the joint and several obligations of each of the
Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall
fail to make any payment with respect to any of the obligations
hereunder as and when due or to perform any of such obligations in
accordance with the terms thereof, then in each such event, the other
Borrowers will make such payment with respect to, or perform, such
obligation.
(d) The obligations of each Borrower under the provisions of
this Section 2.3 constitute full recourse obligations of such
Borrower, enforceable against it to the full extent of its properties
and assets.
(e) Except as otherwise expressly provided herein, to the
extent permitted by law, each Borrower hereby waives notice of
acceptance of its joint and several liability,
22
notice of occurrence of any Default or Event of Default (except to
the extent notice is expressly required to be given pursuant to the
terms of this Credit Agreement), or of any demand for any payment
under this Credit Agreement, notice of any action at any time taken
or omitted by the Administrative Agent or the Lenders under or in
respect of any of the Obligations hereunder, any requirement of
diligence and, generally, all demands, notices and other formalities
of every kind in connection with this Credit Agreement. Each Borrower
hereby assents to, and waives notice of, any extension or
postponement of the time for the payment of any of the Obligations
hereunder, the acceptance of any partial payment thereon, any waiver,
consent or other action or acquiescence by the Administrative Agent
or the Lenders at any time or times in respect of any default by any
Borrower in the performance or satisfaction of any term, covenant,
condition or provision of this Credit Agreement, any and all other
indulgences whatsoever by the Administrative Agent or the Lenders in
respect of any of the Obligations hereunder, and the taking,
addition, substitution or release, in whole or in part, at any time
or times, of any security for any of such Obligations or the
addition, substitution or release, in whole or in part, of any
Borrower. Without limiting the generality of the foregoing, each
Borrower assents to any other action or delay in acting or any
failure to act on the part of the Administrative Agent or the
Lenders, including, without limitation, any failure strictly or
diligently to assert any right or to pursue any remedy or to comply
fully with applicable laws or regulations thereunder which might, but
for the provisions of this Section 2.3, afford grounds for
terminating, discharging or relieving such Borrower, in whole or in
part, from any of its obligations under this Section 2.3, it being
the intention of each Borrower that, so long as any of the
Obligations hereunder remain unsatisfied, the obligations of such
Borrower under this Section 2.3 shall not be discharged except by
performance and then only to the extent of such performance. The
obligations of each Borrower under this Section 2.3 shall not be
diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar
proceeding with respect to any reconstruction or similar proceeding
with respect to any Borrower or a Lender. The joint and several
liability of the Borrowers hereunder shall continue in full force and
effect notwithstanding any absorption, merger, amalgamation or any
other change whatsoever in the name, membership, constitution or
place of formation of any Borrower or any of the Lenders.
(f) The provisions of this Section 2.3 are made for the
benefit of the Lenders and their successors and assigns, and may be
enforced by them from time to time against any of the Borrowers as
often as occasion therefor may arise and without requirement on the
part of the Lenders first to xxxxxxxx any of its claims or to
exercise any of its rights against the other Borrower or to exhaust
any remedies available to it against the other Borrower or to resort
to any other source or means of obtaining payment of any of the
Obligations hereunder or to elect any other remedy. The provisions of
this Section 2.3 shall remain in effect until all the Obligations
hereunder shall have been paid in full or otherwise fully satisfied.
If at any time, any payment, or any part thereof, made in respect of
any of the Obligations, is rescinded or must otherwise be restored or
returned by the Lenders upon the insolvency, bankruptcy or
reorganization of any of the Borrowers, or otherwise, the provisions
of this Section 2.3 will forthwith be reinstated and in effect as
though such payment had not been made.
23
(g) Notwithstanding any provision to the contrary contained
herein or in any of the other Credit Documents, to the extent the
obligations of any Borrower shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because
of any applicable state or federal law relating to fraudulent
conveyances or transfers) then the obligations of such Borrower
hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including, without
limitation, the Bankruptcy Code).
2.4 Appointment of BOP.
BRT hereby appoints BOP to act as its agent for all purposes under
this Credit Agreement (including, without limitation, with respect to all
matters related to the borrowing and repayment of Loans) and agrees that (i)
BOP may execute such documents on behalf of BRT as BOP deems appropriate in
its sole discretion and BRT shall be obligated by all of the terms of any such
document executed on its behalf, (ii) any notice or communication delivered by
the Administrative Agent or the Lender to BOP shall be deemed delivered to BRT
and (iii) the Administrative Agent or the Lender may accept, and be permitted
to rely on, any document, instrument or agreement executed by BOP on behalf of
BRT.
2.5 Non-Recourse.
Notwithstanding anything herein to the contrary, no recourse shall be
had against Brandywine Realty Services Partnership or any past, present or
future shareholder, officer, director or trustee of BRT for any obligation of
the Credit Parties under the Credit Documents, or for any claim based thereon
or otherwise in respect thereof; provided, however, that this Section 2.5
shall not restrict or limit any claim against any such Person arising out of
or occurring with respect to fraud or any intentional misrepresentation or any
act or omission that is willful or wanton or constitutes gross negligence or
willful misconduct.
SECTION 3
GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT
3.1 Interest.
(a) Interest Rate. All Base Rate Loans shall accrue interest
at the Adjusted Base Rate. All Eurodollar Loans shall accrue interest
at the Adjusted Eurodollar Rate.
(b) Default Rate of Interest. Upon the occurrence, and
during the continuance, of an Event of Default, the principal of and,
to the extent permitted by law, interest on the Loans and any other
amounts owing hereunder or under the other Credit Documents
(including without limitation fees and expenses) shall bear interest,
payable on demand, at a per annum rate equal to four percent
24
(4%) plus the rate which would otherwise be applicable (or if no rate
is applicable, then the rate for Base Rate Loans plus four percent (4%)
per annum); provided that unless the Loans have been accelerated,
interest, including the default rate of interest, shall only be due and
payable on the Interest Payment Dates.
(c) Interest Payments. Interest on Loans shall be due and
payable in arrears on each Interest Payment Date. If an Interest
Payment Date falls on a date which is not a Business Day, such
Interest Payment Date shall be deemed to be the succeeding Business
Day, except that in the case of Eurodollar Loans where the succeeding
Business Day falls in the succeeding calendar month, then on the
preceding Business Day.
3.2 Place and Manner of Payments.
All payments of principal, interest, fees, expenses and other amounts
to be made by a Borrower under this Agreement shall be received not later than
2:00 p.m. on the date when due, in Dollars and in immediately available funds,
by the Administrative Agent at its offices in Charlotte, North Carolina or the
Issuing Lender at its applicable address. Payments received after such time
shall be deemed to have been received on the next Business Day. The Borrowers
shall, at the time it makes any payment under this Agreement, specify to the
Administrative Agent or Issuing Lender, as applicable, the Loans, Letters of
Credit, fees or other amounts payable by the Borrowers hereunder to which such
payment is to be applied (and in the event that it fails to specify, or if
such application would be inconsistent with the terms hereof, the
Administrative Agent shall, subject to Section 3.7, distribute such payment to
the Lenders in such manner as the Administrative Agent may deem appropriate).
The Administrative Agent will distribute any such payment to the Lenders on
the day received if such payment is received prior to 2:00 p.m.; otherwise the
Administrative Agent will distribute such payment to the Lenders on the next
succeeding Business Day. Whenever any payment hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day (subject to accrual of interest
and fees for the period of such extension), except that in the case of
Eurodollar Loans, if the extension would cause the payment to be made in the
next following calendar month, then such payment shall instead be made on the
next preceding Business Day.
3.3 Voluntary Prepayments.
The Borrowers shall have the right to prepay Loans in whole or in
part from time to time without premium or penalty; provided, however, that (a)
Eurodollar Loans may only be prepaid on three Business Days' prior written
notice to the Administrative Agent and any prepayment of Eurodollar Loans will
be subject to Section 3.14 and (b) each such partial prepayment of Loans shall
be in the minimum principal amount of $1,000,000 and integral multiples of
$100,000 in excess thereof.
3.4 Fees.
The Borrowers agree to timely pay to the Administrative Agent the
fees as set forth in the Additional Fee Letter.
25
3.5 Payment in full at Maturity.
On the Maturity Date, the entire outstanding principal
balance of all Loans, together with accrued but unpaid interest and all other
sums owing with respect thereto, shall be due and payable in full, unless
accelerated sooner pursuant to Section 9.2.
3.6 Computations of Interest and Fees.
(a) Except for Base Rate Loans which shall be calculated on
the basis of a 365 or 366 day year as the case may be, all
computations of interest and fees hereunder shall be made on the
basis of the actual number of days elapsed over a year of 360 days.
Interest shall accrue from and include the date of borrowing (or
continuation or conversion) but exclude the date of payment.
(b) It is the intent of the Lenders and the Credit Parties
to conform to and contract in strict compliance with applicable usury
law from time to time in effect. All agreements between the Lenders
and the Credit Parties are hereby limited by the provisions of this
paragraph which shall override and control all such agreements,
whether now existing or hereafter arising and whether written or
oral. In no way, nor in any event or contingency (including but not
limited to prepayment or acceleration of the maturity of any
obligation), shall the interest taken, reserved, contracted for,
charged, or received under this Credit Agreement, under the Notes or
otherwise, exceed the maximum nonusurious amount permissible under
applicable law. If, from any possible construction of any of the
Credit Documents or any other document, interest would otherwise be
payable in excess of the maximum nonusurious amount, any such
construction shall be subject to the provisions of this paragraph and
such interest shall be automatically reduced to the maximum
nonusurious amount permitted under applicable law, without the
necessity of execution of any amendment or new document. If any
Lender shall ever receive anything of value which is characterized as
interest on the Loans under applicable law and which would, apart
from this provision, be in excess of the maximum lawful amount, an
amount equal to the amount which would have been excessive interest
shall, without penalty, be applied to the reduction of the principal
amount owing on the Loans and not to the payment of interest, or
refunded to the Credit Parties or the other payor thereof if and to
the extent such amount which would have been excessive exceeds such
unpaid principal amount of the Loans. The right to demand payment of
the Loans or any other indebtedness evidenced by any of the Credit
Documents does not include the right to receive any interest which
has not otherwise accrued on the date of such demand, and the Lenders
do not intend to charge or receive any unearned interest in the event
of such demand. All interest paid or agreed to be paid to the Lenders
with respect to the Loans shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread
throughout the full stated term (including any renewal or extension)
of the Loans so that the amount of interest on account of such
indebtedness does not exceed the maximum nonusurious amount permitted
by applicable law.
26
3.7 Pro Rata Treatment.
Each Loan borrowing, each payment or prepayment of principal
of any Loan, and each conversion or continuation of any Loan, shall (except as
otherwise provided in Section 3.11) be allocated pro rata among the Lenders in
accordance with the respective Commitment Percentages of such Lenders (or, if
the Commitments of such Lenders have expired or been terminated, in accordance
with the respective principal amounts of the outstanding Loans and
Participation Interests of such Lenders); provided that, if any Lender shall
have failed to pay its applicable pro rata share of any Loan, then any amount
to which such Lender would otherwise be entitled pursuant to this Section 3.7
shall instead be payable to the Administrative Agent until the share of such
Loan not funded by such Lender has been repaid; provided further, that in the
event any amount paid to any Lender pursuant to this Section 3.7 is rescinded
or must otherwise be returned by the Administrative Agent, each Lender shall,
upon the request of the Administrative Agent, repay to the Administrative
Agent the amount so paid to such Lender, with interest for the period
commencing on the date such payment is returned by the Administrative Agent
until the date the Administrative Agent receives such repayment at a rate per
annum equal to, during the period to but excluding the date two Business Days
after such request, the Federal Funds Rate, and thereafter, at the Base Rate
plus two percent (2%) per annum.
3.8 Sharing of Payments.
The Lenders agree among themselves that, except to the extent
otherwise provided herein, in the event that any Lender shall obtain payment
in respect of any Loan or any other obligation owing to such Lender under this
Credit Agreement through the exercise of a right of setoff, banker's lien or
counterclaim, or pursuant to a secured claim under Section 506 of the
Bankruptcy Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, in excess
of its pro rata share of such payment as provided for in this Credit
Agreement, such Lender shall promptly pay in cash or purchase from the other
Lenders a participation in such Loans and other obligations in such amounts,
and make such other adjustments from time to time, as shall be equitable to
the end that all Lenders share such payment in accordance with their
respective ratable shares as provided for in this Credit Agreement. The
Lenders further agree among themselves that if payment to a Lender obtained by
such Lender through the exercise of a right of setoff, banker's lien,
counterclaim or other event as aforesaid shall be rescinded or must otherwise
be restored, each Lender which shall have shared the benefit of such payment
shall, by payment in cash or a repurchase of a participation theretofore sold,
return its share of that benefit (together with its share of any accrued
interest payable with respect thereto) to each Lender whose payment shall have
been rescinded or otherwise restored. The Credit Parties agree that any Lender
so purchasing such a participation may, to the fullest extent permitted by
law, exercise all rights of payment, including setoff, banker's lien or
counterclaim, with respect to such participation as fully as if such Lender
were a holder of such Loan or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Credit
Agreement, if any Lender shall fail to remit to the Administrative Agent or
any other Lender an amount payable by such Lender to the Administrative Agent
or such other Lender pursuant to this Credit Agreement on the date when such
amount is due, such payments shall be made together with interest thereon for
each date from the date such amount is due until the date such amount is paid
to the Administrative Agent or such
27
other Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.8 applies, such Lender
shall, to the extent practicable, exercise its rights in respect of such secured
claim in a manner consistent with the rights of the Lenders under this Section
3.8 to share in the benefits of any recovery on such secured claim.
3.9 Capital Adequacy.
If, after the date hereof, any Lender has determined that the
adoption or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or
administration of, any applicable law, rule or regulation regarding capital
adequacy, or compliance by such Lender, or its parent corporation, with any
request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on such Lender's (or
parent corporation's) capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender, or its parent
corporation, could have achieved but for such adoption, effectiveness, change
or compliance (taking into consideration such Lender's (or parent
corporation's) policies with respect to capital adequacy), then, upon notice
from such Lender to the Borrowers and the Administrative Agent, the Borrowers
shall be obligated to pay to such Lender such additional amount or amounts as
will compensate such Lender on an after-tax basis (after taking into account
applicable deductions and credits in respect of the amount indemnified) for
such reduction. Each determination by any such Lender of amounts owing under
this Section shall, absent manifest error, be conclusive and binding on the
parties hereto. This covenant shall survive the termination of this Credit
Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.10 Inability To Determine Interest Rate.
If prior to the first day of any Interest Period, the Administrative
Agent shall have determined in good faith (which determination shall be
conclusive and binding upon the Borrowers) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Adjusted Eurodollar Rate for such Interest Period, the
Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrowers and the Lenders as soon as practicable thereafter, and will also
give prompt written notice to the Borrowers when such conditions no longer
exist. If such notice is given (a) any Eurodollar Loans requested to be made
on the first day of such Interest Period shall be made as Base Rate Loans and
(b) any Loans that were to have been converted on the first day of such
Interest Period to or continued as Eurodollar Loans shall be converted to or
continued as Base Rate Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made or continued
as such, nor shall the Borrowers have the right to convert Base Rate Loans to
Eurodollar Loans.
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3.11 Illegality.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application
thereof occurring after the Closing Date shall make it unlawful for any Lender
to make or maintain Eurodollar Loans as contemplated by this Credit Agreement,
(a) such Lender shall promptly give written notice of such circumstances to
the Borrowers and the Administrative Agent (which notice shall be promptly
withdrawn whenever such circumstances no longer exist), (b) the commitment of
such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as
such and convert a Base Rate Loan to Eurodollar Loans shall forthwith be
canceled and, until such time as it shall no longer be unlawful for such
Lender to make or maintain Eurodollar Loans, such Lender shall then have a
commitment only to make a Base Rate Loan when a Eurodollar Loan is requested
and (c) such Lender's Loans then outstanding as Eurodollar Loans, if any,
shall be converted automatically to Base Rate Loans on the respective last
days of the then current Interest Periods with respect to such Loans or within
such earlier period as required by law. If any such conversion of a Eurodollar
Loan occurs on a day which is not the last day of the then current Interest
Period with respect thereto, the Borrowers shall pay to such Lender such
amounts, if any, as may be required pursuant to Section 3.14; provided that no
such payments shall be required if the conversion of a Eurodollar Loan occurs
within 30 days of the last day of the Interest Period of such Eurodollar Loan.
3.12 Requirements of Law.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender, or compliance
by any Lender with any request or directive (whether or not having the force
of law) from any central bank or other Governmental Authority, in each case
made subsequent to the Closing Date (or, if later, the date on which such
Lender becomes a Lender):
(a) shall subject such Lender to any tax of any kind
whatsoever with respect to any Eurodollar Loans made by it or its
obligation to make Eurodollar Loans, or change the basis of taxation
of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 3.13 (including Non-Excluded
Taxes imposed solely by reason of any failure of such Lender to
comply with its obligations under Section 3.13(b)) and changes in
taxes measured by or imposed upon the overall net income, or
franchise tax (imposed in lieu of such net income tax), of such
Lender or its applicable lending office, branch, or any affiliate
thereof);
(b) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against
assets held by, deposits or other liabilities in or for the account
of, advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Adjusted Eurodollar
Rate hereunder; or
(c) shall impose on such Lender any other condition
(excluding any tax of any kind whatsoever);
29
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or issuing or participating
in Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the Borrowers from such
Lender, through the Administrative Agent, in accordance herewith, the
Borrowers shall be obligated to promptly pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender on an after-tax basis
(after taking into account applicable deductions and credits in respect of the
amount indemnified) for such increased cost or reduced amount receivable,
provided that, in any such case, the Borrowers may elect to convert the
Eurodollar Loans made by such Lender hereunder to Base Rate Loans by giving
the Administrative Agent at least one Business Day's notice of such election,
in which case the Borrowers shall promptly pay to such Lender, upon demand,
without duplication, such amounts, if any, as may be required pursuant to
Section 3.14. If any Lender becomes entitled to claim any additional amounts
pursuant to this Section 3.12, it shall provide prompt notice thereof to the
Borrowers, through the Administrative Agent, certifying (x) that one of the
events described in this Section 3.12 has occurred and describing in
reasonable detail the nature of such event, (y) as to the increased cost or
reduced amount resulting from such event and (z) as to the additional amount
demanded by such Lender and a reasonably detailed explanation of the
calculation thereof. Such a certificate as to any additional amounts payable
pursuant to this Section 3.12 submitted by such Lender, through the
Administrative Agent, to the Borrowers shall be conclusive and binding on the
parties hereto in the absence of manifest error. This covenant shall survive
the termination of this Credit Agreement and the payment of the Loans and all
other amounts payable hereunder.
3.13 Taxes.
(a) Except as provided below in this Section 3.13, all
payments made by the Borrowers under this Credit Agreement and any
Notes shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp
or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld
or assessed by any court, or governmental body, agency or other
official, excluding taxes measured by or imposed upon the overall net
income of any Lender or its applicable lending office, or any branch
or affiliate thereof, and all franchise taxes, branch taxes, taxes on
doing business or taxes on the overall capital or net worth of any
Lender or its applicable lending office, or any branch or affiliate
thereof, in each case imposed in lieu of net income taxes: (i) by the
jurisdiction under the laws of which such Lender, applicable lending
office, branch or affiliate is organized or is located, or in which
its principal executive office is located, or any nation within which
such jurisdiction is located or any political subdivision thereof; or
(ii) by reason of any connection between the jurisdiction imposing
such tax and such Lender, applicable lending office, branch or
affiliate other than a connection arising solely from such Lender
having executed, delivered or performed its obligations, or received
payment under or enforced, this Credit Agreement or any Notes. If any
such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be
withheld from any amounts payable to the Administrative Agent or any
Lender hereunder or under any Notes, (A) the amounts so payable to
the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender
(after payment of all Non-Excluded Taxes) interest on any such other
amounts
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payable hereunder at the rates or in the amounts specified in
this Credit Agreement and any Notes, provided, however, that the
Borrowers shall be entitled to deduct and withhold any Non-Excluded
Taxes and shall not be required to increase any such amounts payable
to any Lender that is not organized under the laws of the United
States of America or a state thereof if such Lender fails to comply
with the requirements of paragraph (b) of this Section 3.13 whenever
any Non-Excluded Taxes are payable by the Borrowers, and (B) as
promptly as possible after requested the Borrowers shall send to the
Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official
receipt received by the Borrowers showing payment thereof. If the
Borrowers fail to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative
Agent the required receipts or other required documentary evidence,
the Borrowers shall indemnify the Administrative Agent and any Lender
for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any
such failure. The agreements in this subsection shall survive the
termination of this Credit Agreement and the payment of the Loans and
all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof shall:
(i) (A) on or before the date of any payment by
the Borrowers under this Credit Agreement or Notes to such
Lender, deliver to the Borrowers and the Administrative
Agent (x) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, certifying that it is
entitled to receive payments under this Credit Agreement and
any Notes without deduction or withholding of any United
States federal income taxes and (y) an Internal Revenue
Service Form W-8 or W-9, or successor applicable form, as
the case may be, certifying that it is entitled to an
exemption from United States backup withholding tax;
(B) deliver to the Borrowers and the
Administrative Agent two further copies of any such form or
certification on or before the date that any such form or
certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrowers; and
(C) obtain such extensions of time for
filing and complete such forms or certifications as may
reasonably be requested by the Borrowers or the
Administrative Agent; or
(ii) in the case of any such Lender that is
not a "bank" within the meaning of Section 881(c)(3)(A) of
the Internal Revenue Code, (A) represent to the Borrowers
(for the benefit of the Borrowers and the Administrative
Agent) that it is not a bank within the meaning of Section
881(c)(3)(A) of the Internal Revenue Code, (B) agree to
furnish to the Borrowers, on or before the date of any
payment by the Borrowers, with a copy to the Administrative
Agent, two accurate and complete
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original signed copies of Internal Revenue Service Form W-8,
or successor applicable form certifying to such Lender's
legal entitlement at the date of such certificate to an
exemption from U.S. withholding tax under the provisions of
Section 881(c) of the Internal Revenue Code with respect to
payments to be made under this Credit Agreement and any
Notes (and to deliver to the Borrowers and the
Administrative Agent two further copies of such form on or
before the date it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Borrowers or
the Administrative Agent for filing and completing such
forms), and (C) agree, to the extent legally entitled to do
so, upon reasonable request by the Borrowers, to provide to
the Borrowers (for the benefit of the Borrowers and the
Administrative Agent) such other forms as may be reasonably
required in order to establish the legal entitlement of such
Lender to an exemption from withholding with respect to
payments under this Credit Agreement and any Notes.
Notwithstanding the above, if any change in treaty, law or regulation
has occurred after the date such Person becomes a Lender hereunder
which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect
to it and such Lender so advises the Borrowers and the Administrative
Agent then such Lender shall be exempt from such requirements. Each
Person that shall become a Lender or a participant of a Lender
pursuant to Section 11.3 shall, upon the effectiveness of the related
transfer, be required to provide all of the forms, certifications and
statements required pursuant to this subsection (b); provided that in
the case of a participant of a Lender, the obligations of such
participant of a Lender pursuant to this subsection (b) shall be
determined as if the participant of a Lender were a Lender except
that such participant of a Lender shall furnish all such required
forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
3.14 Compensation.
Except as expressly set forth in Section 3.3(c), the Borrowers
promise to indemnify each Lender and to hold each Lender harmless from any
loss or expense which such Lender may sustain or incur as a consequence of (a)
default by the Borrowers in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Borrowers have given a notice
requesting the same in accordance with the provisions of this Credit
Agreement, (b) default by the Borrowers in making any prepayment of a
Eurodollar Loan after the Borrowers have given a notice thereof in accordance
with the provisions of this Credit Agreement and (c) the making of a
prepayment of Eurodollar Loans on a day which is not the last day of an
Interest Period with respect thereto. Such indemnification shall be calculated
by the Administrative Agent and may include an amount equal to (i) the amount
of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day
of the applicable Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such
Eurodollar Loans provided for herein minus (ii) the amount of interest which
would have accrued to such Lender on
32
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank Eurodollar market. The agreements in this Section
shall survive the termination of this Credit Agreement and the payment of the
Loans and all other amounts payable hereunder. Notwithstanding the foregoing,
any prepayment of a Eurodollar Loan made hereunder (as a result of a mandatory
requirement of this Credit Agreement) within thirty (30) days of the end of the
Interest Period with respect to such Eurodollar Loan, shall not be subject to
this Section 3.14.
3.15 Mitigation; Mandatory Assignment.
Each Lender shall use reasonable efforts to avoid or mitigate any
increased cost or suspension of the availability of an interest rate under
Sections 3.9 through 3.14 inclusive to the greatest extent practicable
(including transferring the Loans to another lending office or affiliate of a
Lender) unless, in the opinion of such Lender, such efforts would be likely to
have an adverse effect upon it. In the event a Lender makes a request to the
Borrowers for additional payments in accordance with Sections 3.9, 3.10, 3.11,
3.12, 3.13 or 3.14 or a Lender becomes a Defaulting Lender, then, provided
that no Default or Event of Default has occurred and is continuing at such
time, the Borrowers may, at their own expense (such expense to include any
transfer fee payable to the Administrative Agent under Section 11.3(b) and any
expense pursuant to Section 3.14), and in their sole discretion, require such
Lender to transfer and assign in whole (but not in part), without recourse (in
accordance with and subject to the terms and conditions of Section 11.3(b)),
all of its interests, rights and obligations under this Credit Agreement to an
assignee which shall assume such assigned obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (a) such
assignment shall not conflict with any law, rule or regulation or order of any
court or other governmental authority and (b) the Borrowers or such assignee
shall have paid to the assigning Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the portion
of the Loans hereunder held by such assigning Lender and all other amounts
owed to such assigning Lender hereunder, including amounts owed pursuant to
Sections 3.9 through 3.14.
SECTION 4
GUARANTY
4.1 Guaranty of Payment.
Subject to Section 4.7 below, each of the Guarantors hereby, jointly
and severally, unconditionally guarantees to each Lender, the prompt payment
of the Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration or otherwise). This Guaranty is a
guaranty of payment and not of collection and is a continuing guaranty and
shall apply to all Obligations whenever arising.
4.2 Obligations Unconditional.
The obligations of the Guarantors hereunder are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Credit Documents or any
33
other agreement or instrument referred to therein, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor. Each Guarantor agrees that this Guaranty may be enforced by
the Lenders without the necessity at any time of resorting to or exhausting any
other security or collateral and without the necessity at any time of having
recourse to the Notes or any other of the Credit Documents or any collateral,
if any, hereafter securing the Obligations or otherwise and each Guarantor
hereby waives the right to require the Lenders to proceed against the
Borrowers or any other Person (including a co-guarantor) or to require the
Lenders to pursue any other remedy or enforce any other right. Each Guarantor
further agrees that it shall have no right of subrogation, indemnity,
reimbursement or contribution against the Borrowers or any other Guarantor of
the Obligations for amounts paid under this Guaranty until such time as the
Lenders have been paid in full, all Commitments under the Credit Agreement
have been terminated and no Person or Governmental Authority shall have any
right to request any return or reimbursement of funds from the Lenders in
connection with monies received under the Credit Documents. Each Guarantor
further agrees that nothing contained herein shall prevent the Lenders from
suing on the Notes or any of the other Credit Documents or foreclosing its
security interest in or Lien on any collateral, if any, securing the
Obligations or from exercising any other rights available to it under this
Credit Agreement, the Notes, any other of the Credit Documents, or any other
instrument of security, if any, and the exercise of any of the aforesaid
rights and the completion of any foreclosure proceedings shall not constitute
a discharge of any of any Guarantor's obligations hereunder; it being the
purpose and intent of each Guarantor that its obligations hereunder shall be
absolute, independent and unconditional under any and all circumstances.
Neither any Guarantor's obligations under this Guaranty nor any remedy for the
enforcement thereof shall be impaired, modified, changed or released in any
manner whatsoever by an impairment, modification, change, release or
limitation of the liability of the Borrowers or by reason of the bankruptcy or
insolvency of the Borrowers. Each Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Obligations and notice
of or proof of reliance of by the Administrative Agent or any Lender upon this
Guarantee or acceptance of this Guarantee. The Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guarantee. All
dealings between the Borrowers and any of the Guarantors, on the one hand, and
the Administrative Agent and the Lenders, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon this
Guarantee. The Guarantors further agree to all rights of set-off as set forth
in Section 11.2.
4.3 Modifications.
Each Guarantor agrees that (a) all or any part of the security now or
hereafter held for the Credit Party Obligations, if any, may be exchanged,
compromised or surrendered from time to time; (b) the Lenders shall not have
any obligation to protect, perfect, secure or insure any such security
interests, liens or encumbrances now or hereafter held, if any, for the
Obligations or the properties subject thereto; (c) the time or place of
payment of the Obligations may be changed or extended, in whole or in part, to
a time certain or otherwise, and may be renewed or accelerated, in whole or in
part; (d) the Borrowers and any other party liable for payment under the
Credit Documents may be granted indulgences generally; (e) any of the
provisions of the Notes or any of the other Credit Documents may be modified,
amended or waived; (f) any party (including any co-guarantor) liable
34
for the payment thereof may be granted indulgences or be released; and (g) any
deposit balance for the credit of the Borrowers or any other party liable for
the payment of the Obligations or liable upon any security therefor may be
released, in whole or in part, at, before or after the stated, extended or
accelerated maturity of the Obligations, all without notice to or further
assent by such Guarantor, which shall remain bound thereon, notwithstanding
any such exchange, compromise, surrender, extension, renewal, acceleration,
modification, indulgence or release.
4.4 Waiver of Rights.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Guaranty by the Lenders and
of all extensions of credit to the Borrowers by the Lenders; (b) presentment
and demand for payment or performance of any of the Obligations; (c) protest
and notice of dishonor or of default (except as specifically required in the
Credit Agreement) with respect to the Obligations or with respect to any
security therefor; (d) notice of the Lenders obtaining, amending, substituting
for, releasing, waiving or modifying any security interest, lien or
encumbrance, if any, hereafter securing the Obligations, or the Lenders'
subordinating, compromising, discharging or releasing such security interests,
liens or encumbrances, if any; and (e) all other notices to which such
Guarantor might otherwise be entitled.
4.5 Reinstatement.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment
by or on behalf of any Person in respect of the Obligations is rescinded or
must be otherwise restored by any holder of any of the Obligations, whether as
a result of any proceedings in bankruptcy or reorganization or otherwise, and
each Guarantor agrees that it will indemnify the Administrative Agent and each
Lender on demand for all reasonable costs and expenses (including, without
limitation, reasonable fees of counsel) incurred by the Administrative Agent
or such Lender in connection with such rescission or restoration, including
any such costs and expenses incurred in defending against any claim alleging
that such payment constituted a preference, fraudulent transfer or similar
payment under any bankruptcy, insolvency or similar law.
4.6 Remedies.
The Guarantors agree that, as between the Guarantors, on the one
hand, and the Administrative Agent and the Lenders, on the other hand, the
Obligations may be declared to be forthwith due and payable as provided in
Section 9 (and shall be deemed to have become automatically due and payable in
the circumstances provided in Section 9) notwithstanding any stay, injunction
or other prohibition preventing such declaration (or preventing such
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or such Obligations being
deemed to have become automatically due and payable), such Obligations
(whether or not due and payable by any other Person) shall forthwith become
due and payable by the Guarantors.
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4.7 Limitation of Guaranty.
Notwithstanding any provision to the contrary contained herein or in
any of the other Credit Documents, to the extent the obligations of any
Guarantor shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers) then the obligations of such
Guarantor hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including, without
limitation, the Bankruptcy Code).
4.8 Rights of Contribution.
The Credit Parties agree among themselves that, in connection with
payments made hereunder, each Credit Party shall have contribution rights
against the other Credit Parties as permitted under applicable law. Such
contribution rights shall be subordinate and subject in right of payment to
the obligations of the Credit Parties under the Credit Documents and no Credit
Party shall exercise such rights of contribution until all Credit Party
Obligations have been paid in full and the Commitments terminated.
SECTION 5
CONDITIONS PRECEDENT
5.1 Closing Conditions.
The obligation of the Lenders to enter into this Credit Agreement and
make the initial Extensions of Credit is subject to satisfaction of the
following conditions:
(a) Executed Credit Documents. Receipt by the Administrative
Agent of duly executed copies of: (i) this Credit Agreement; (ii) the
Notes; and (iii) all other Credit Documents required to be delivered
on or before the Effective Date, each in form and substance
reasonably acceptable to the Administrative Agent in its sole
discretion.
(b) Partnership Documents. With respect to each Credit Party
that is a partnership, receipt by the Administrative Agent of the
following:
(i) Authorization. Authorization of the general
partner(s) of such Credit Party, as of the Closing Date,
approving and adopting the Credit Documents to be executed
by such Credit Party and authorizing the execution and
delivery thereof.
(ii) Partnership Agreements. Certified copies of
the partnership agreement of such Credit Party, together
with all amendments thereto.
(iii) Certificates of Good Standing or Existence.
Certificate of good standing or existence for such Credit
Party issued as of a recent date by its state of
36
organization and each other state where the failure to qualify
or be in good standing could have a Material Adverse Effect.
(iv) Incumbency. An incumbency certificate of the
general partner(s) of such Credit Party, certified by a
secretary or assistant secretary of such general partner to
be true and correct as of the Closing Date.
(c) Corporate Documents. With respect to each Credit Party
that is a corporation, receipt by the Administrative Agent
of the following:
(i) Charter Documents. Copies of the articles or
certificates of incorporation or other charter documents of
each such Credit Party certified to be true and complete as
of a recent date by the appropriate Governmental Authority
of the state or other jurisdiction of its incorporation and
certified by a secretary or assistant secretary of such
Credit Party to be true and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws of each such
Credit Party certified by a secretary or assistant secretary
of such Credit Party to be true and correct as of the
Effective Date.
(iii) Resolutions. Copies of resolutions approving
and adopting the Credit Documents to which it is a party,
the transactions contemplated therein and authorizing
execution and delivery thereof, certified by a secretary or
assistant secretary of such Credit Party to be true and
correct and in full force and effect as of the Effective
Date.
(iv) Good Standing. Copies of (A) certificates of
good standing, existence or their equivalent with respect to
such Credit Party certified as of a recent date by the
appropriate Governmental Authorities of the state or other
jurisdiction of incorporation and each other jurisdiction in
which the failure to so qualify and be in good standing
could have a Material Adverse Effect and (B) to the extent
available, a certificate indicating payment of all corporate
franchise taxes certified as of a recent date by the
appropriate governmental taxing authorities.
(v) Incumbency. An incumbency certificate of such
Credit Party certified by a secretary or assistant secretary
of such Credit Party to be true and correct as of the
Effective Date.
(d) Limited Liability Company Documents. With respect to
each Credit Party that is a limited liability company, receipt by the
Administrative Agent of the following:
(i) Certificate of Formation. A copy of the
certificate of formation of such Credit Party certified to
be true and complete by the appropriate Governmental
Authority of the state or jurisdiction of its formation and
certified by the sole member of such Credit Party to be true
and correct as of the Closing Date.
37
(ii) LLC Agreement. A copy of the LLC Agreement of
such Credit Party certified by the sole member of such
Credit Party to be true and correct as of the Closing Date.
(iii) Resolutions. Copies of resolutions approving
and adopting the Credit Documents to which it is a party,
the transactions contemplated therein and authorizing
execution and delivery thereof.
(iv) Good Standing. Copies of certificates of good
standing, existence of their equivalent with respect to such
Credit Party certified as of a recent date by the
appropriate Governmental Authorities of the state or other
jurisdiction of formation and each other jurisdiction in
which the failure to so qualify and be in good standing
could have a Material Adverse Effect.
(e) Trust Documents. With respect to each Credit Party that
is a REIT, receipt by the Administrative Agent of the following:
(i) Declaration of Trust. A copy of the Declaration
of Trust of such Credit Party certified to be true and
complete by the appropriate Governmental Authority of the
state or jurisdiction of its formation and certified by the
trustee of such Credit Party to be true and correct as of
the Closing Date.
(ii) Bylaws. A copy of the Bylaws of such Credit
Party certified by the trustee of such Credit Party to be
true and complete as of the Closing Date.
(iii) Resolutions. Copies of the resolutions of the
Board of Trustees of such Credit Party approving and
adopting the Credit Documents to which it is a party, the
transactions contemplated therein and authorizing execution
and delivery thereof.
(iv) Good Standing. Copies of certificates of good
standing, existence of their equivalent with respect to such
Credit Party certified as of a recent date by the
appropriate Governmental Authorities of the state or other
jurisdiction of formation and each other jurisdiction in
which the failure to so qualify and be in good standing
could have a Material Adverse Effect.
(f) Financial Statements. Receipt and approval by the
Lenders of: (i) the consolidated financial statements of the Credit
Parties and their Subsidiaries for each of the three years ending
December 31, 1995, 1996 and 1997, to the extent available, including
balance sheets and income and cash flow statements, audited by
nationally recognized independent public accountants and containing
an unqualified opinion of such firm that such statements present
fairly, in all material respects, the consolidated financial position
and results of operations of such Person, and are prepared in
conformity with GAAP, and (ii) interim consolidated financial
statements of the Credit Parties and their Subsidiaries for the six
months ending June 30, 1998, including balance sheets and income and
cash flow statements, accompanied by a certificate of the chief
financial officer of BRT to the effect
38
that such annual Financial Statements fairly present in all material
respects the financial condition of the Credit Parties and their
Subsidiaries and have been prepared in accordance with GAAP, subject to
changes resulting from audit and normal year-end audit adjustments.
(g) Financial Projections and Other Information. Receipt and
approval by the Lenders of (i) financial projections for the Combined
Parties, (ii) summary financial projections for each Property, for
the calendar year ending 1998, in a form acceptable to the Lenders,
and such other financial information as the Lenders may require and
(iii) pro forma financial statements of the Credit Parties and their
Subsidiaries, including a balance sheet, an income statement and a
cash flow statement, giving effect to the acquisition of the Project
Xxxx Properties, together with a certificate showing compliance with
the financial covenants in Section 7.2 after giving effect to such
acquisition.
(h) Opinion of Counsel. Receipt by the Administrative Agent
of opinions (which shall cover, among other things, authority,
legality, validity, binding effect and enforceability), satisfactory
to the Administrative Agent, addressed to the Administrative Agent on
behalf of the Lenders and dated as of the Closing Date, from legal
counsel to the Credit Parties.
(i) Material Adverse Effect. There shall not have occurred a
change since June 30, 1998 that has had or could reasonably be
expected to have a Material Adverse Effect.
(j) Litigation. There shall not exist any pending or
threatened action, suit, investigation or proceeding against a Credit
Party or any of their Subsidiaries that would have or would
reasonably be expected to have a Material Adverse Effect.
(k) Officer's Certificates. The Administrative Agent shall
have received a certificate on behalf of the Credit Parties as of the
Closing Date stating that (i) the Credit Parties and each of their
Subsidiaries are in compliance with all existing material financial
obligations, (ii) no action, suit, investigation or proceeding is
pending or threatened in any court or before any arbitrator or
governmental instrumentality that purports to effect a Credit Party
or any transaction contemplated by the Credit Documents, if such
action, suit, investigation or proceeding could have or could be
reasonably expected to have a Material Adverse Effect, (iii) the
financial statements and information delivered pursuant to Section
5.1(f) and (g) were prepared in good faith and using reasonable
assumptions and (iv) immediately after giving effect to this Credit
Agreement, the other Credit Documents and all the transactions
contemplated therein to occur on such date, (A) each of the Credit
Parties is Solvent, (B) no Default or Event of Default exists, (C)
all representations and warranties contained herein and in the other
Credit Documents are true and correct in all material respects, and
(D) the Credit Parties and their Subsidiaries are in compliance as of
June 30, 1998 (on a pro forma basis giving effect to the acquisition
of the Project Xxxx Properties) with each of the financial covenants
set forth in Section 7.2.
(l) Fees and Expenses. Payment by the Borrowers of all fees
and expenses owed by them to the Lenders and the Administrative
Agent, including, without limitation, payment to the Administrative
Agent of the fees set forth herein and in the Fee Letter.
39
(m) Consents and Approvals. All governmental, shareholder,
partner and third-party consents and approvals necessary or, in the
opinion of the Administrative Agent, desirable in connection with the
Loans and the transactions contemplated under the Credit Documents
shall have been duly obtained and shall be in full force and effect,
and a copy of each such consent or approval shall have been delivered
to the Administrative Agent.
(n) Due Diligence. Completion by the Lenders of all due
diligence with respect to the Combined Parties, including, but not
limited to, a review of all existing Indebtedness of the Combined
Parties and all Properties, including, but not limited to, the
Project Xxxx Properties.
(o) Senior Credit Agreement. Receipt by the Administrative
Agent of satisfactory evidence that the Borrowers have entered into
(or are simultaneously entering into) the Senior Credit Agreement on
terms acceptable to the Administrative Agent
(p) Acquisition. Receipt by the Administrative Agent of
evidence that the Borrowers have acquired (or are simultaneously
acquiring), on terms acceptable to the Administrative Agent, the
Project Xxxx Properties for a price not to exceed $620 million.
(q) Other. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably and timely
requested by any Lender, including, but not limited to, information
regarding litigation, tax, accounting, labor, insurance, pension
liabilities (actual or contingent), real estate leases, material
contracts, debt agreements, property ownership and contingent
liabilities of the Credit Parties and their Subsidiaries.
5.2 Conditions to All Extensions of Credit.
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make Loans unless:
(a) Delivery of Notice. The Borrowers shall have delivered a
Notice of Borrowing, duly executed and completed, by the time
specified in Section 2.1.
(b) Representations and Warranties. The representations and
warranties made by the Credit Parties in any Credit Document are true
and correct in all material respects at and as if made as of such
date except to the extent they expressly relate to an earlier date.
(c) No Default. No Default or Event of Default shall exist
or be continuing either prior to or after giving effect thereto.
(d) Availability. Immediately after giving effect to the
making of the requested Loan, the aggregate amount of Loans advanced
hereunder shall be less than or equal to $150,000,000.
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The delivery of each Notice of Borrowing shall constitute a representation and
warranty by the Borrowers of the correctness of the matters specified in
subsections (b), (c), and (d) above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Administrative Agent and
each Lender that:
6.1 Financial Condition.
The financial statements delivered to the Lenders pursuant to Section
5.1(d) and Section 7.1(a) and (b): (a) have been prepared in accordance with
GAAP and (b) present fairly the consolidated financial condition, results of
operations and cash flows of the Credit Parties and their Subsidiaries as of
such date and for such periods. Since June 30, 1998, there has been no sale,
transfer or other disposition by any Credit Party or any of their Subsidiaries
of any material part of the business or property of the Credit Parties and
their Subsidiaries, taken as a whole, and no purchase or other acquisition by
any of them of any business or property (including any capital stock of any
other Person) material in relation to the consolidated financial condition of
the Credit Parties and their Subsidiaries, taken as a whole, in each case,
which, is not (i) reflected in the most recent financial statements delivered
to the Lenders pursuant to Section 5.1(f) and Section 7.1 or in the notes
thereto or (ii) otherwise permitted by the terms of this Credit Agreement and
communicated to the Administrative Agent.
6.2 No Material Change.
Since the later of June 30, 1998 or the date of the last Loan made
under this Credit Agreement, there has been no development or event relating
to or affecting a Combined Party which has had or would be reasonably expected
to have a Material Adverse Effect.
6.3 Organization and Good Standing.
Each Credit Party (a) is either a partnership, a corporation, a
limited liability company or a REIT duly organized, validly existing and in
good standing under the laws of the State (or other jurisdiction) of its
organization or formation, (b) is duly qualified and in good standing as a
foreign partnership, a foreign corporation, a foreign limited liability
company or a foreign REIT and authorized to do business in every other
jurisdiction unless the failure to be so qualified, in good standing or
authorized would not have or would not be expected to have a Material Adverse
Effect and (c) has the power and authority to own its properties and to carry
on its business as now conducted and as proposed to be conducted.
6.4 Due Authorization.
Each Credit Party (a) has the power and authority to execute, deliver
and perform this Credit Agreement and the other Credit Documents to which it
is a party and to incur the obligations herein
41
and therein provided for and (b) is duly authorized to, and has been authorized
by all necessary action, to execute, deliver and perform this Credit Agreement
and the other Credit Documents to which it is a party.
6.5 No Conflicts.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor the performance of
or compliance with the terms and provisions thereof by a Credit Party will (a)
violate or conflict with any provision of its organizational documents, (b)
violate, contravene or materially conflict with any Requirement of Law or any
other law, regulation (including, without limitation, Regulation U or
Regulation X), order, writ, judgment, injunction, decree or permit applicable
to it, (c) violate, contravene or conflict with contractual provisions of, or
cause an event of default under, any indenture, loan agreement, mortgage, deed
of trust, contract or other agreement or instrument to which it is a party or
by which it may be bound, the violation of which would have or would be
reasonably expected to have a Material Adverse Effect, or (d) result in or
require the creation of any Lien upon or with respect to its properties.
6.6 Consents.
Except for consents, approvals and authorizations which have been
obtained, no consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental Authority or
third party in respect of any Credit Party is required in connection with the
execution, delivery or performance of this Credit Agreement or any of the
other Credit Documents by such Credit Party.
6.7 Enforceable Obligations.
This Credit Agreement and the other Credit Documents have been duly
executed and delivered and constitute legal, valid and binding obligations of
each Credit Party enforceable against such Credit Party in accordance with
their respective terms, except as may be limited by bankruptcy or insolvency
laws or similar laws affecting creditors' rights generally or by general
equitable principles.
6.8 No Default.
No Combined Party is in default in any respect under any contract,
lease, loan agreement, indenture, mortgage, security agreement or other
agreement or obligation to which it is a party or by which any of its
properties is bound which default would have or would be reasonably expected
to have a Material Adverse Effect. No Default or Event of Default has occurred
or exists except as previously disclosed in writing to the Lenders.
6.9 Ownership.
Each Combined Party is the owner of, and has good and marketable
title to, all of its respective assets and none of such assets is subject to
any Lien other than Permitted Liens.
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6.10 Indebtedness.
The Combined Parties have no Indebtedness except as otherwise
permitted by this Credit Agreement.
6.11 Litigation.
There are no actions, suits or legal, equitable, arbitration or
administrative proceedings, pending or, to the knowledge of any Credit Party,
threatened against, a Combined Party which would have or would be reasonably
expected to have a Material Adverse Effect.
6.12 Taxes.
Each Credit Party, and each of its Subsidiaries, has filed, or caused
to be filed, all tax returns (federal, state, local and foreign) required to
be filed and has paid (a) all amounts of taxes shown thereon to be due
(including interest and penalties) and (b) all other taxes, fees, assessments
and other governmental charges (including mortgage recording taxes,
documentary stamp taxes and intangibles taxes) owing by it, except for such
taxes (i) which are not yet delinquent or (ii) that are being contested in
good faith and by proper proceedings, and against which adequate reserves are
being maintained in accordance with GAAP. No Credit Party is aware of any
proposed tax assessments against it or any of its Subsidiaries.
6.13 Compliance with Law.
Each Combined Party is in compliance with all Requirements of Law and
all other laws, rules, regulations, orders and decrees (including without
limitation Environmental Laws) applicable to it, or to its properties, unless
such failure to comply would not have or would not be reasonably expected to
have a Material Adverse Effect. No Requirement of Law would be reasonably
expected to cause a Material Adverse Effect.
6.14 Compliance with ERISA.
Except as would not result in or be reasonably expected to result in
a Material Adverse Effect:
(a) During the five-year period prior to the date on which
this representation is made or deemed made: (i) no ERISA Event has
occurred, and, to the best of each Credit Party's, each Subsidiary of
a Credit Party's and each ERISA Affiliate's knowledge, no event or
condition has occurred or exists as a result of which any ERISA Event
could reasonably be expected to occur, with respect to any Plan; (ii)
no "accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or not
waived, has occurred with respect to any Plan; (iii) each Plan has
been maintained, operated, and funded in compliance with its own
terms and in material compliance with the provisions of ERISA, the
Code, and any other applicable federal or state laws; and (iv) no
Lien in favor or the PBGC or a Plan has arisen or is reasonably
likely to arise on account of any Plan.
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(b) The actuarial present value of all "benefit liabilities"
(as defined in Section 4001(a)(16) of ERISA), whether or not vested,
under each Single Employer Plan, as of the last annual valuation date
prior to the date on which this representation is made or deemed made
(determined, in each case, in accordance with Financial Accounting
Standards Board Statement 87, utilizing the actuarial assumptions
used in such Plan's most recent actuarial valuation report), did not
exceed as of such valuation date the fair market value of the assets
of such Plan.
(c) No Credit Party, Subsidiary of a Credit Party or ERISA
Affiliate has incurred, or, to the best of each such party's
knowledge, is reasonably expected to incur, any withdrawal liability
under ERISA to any Multiemployer Plan or Multiple Employer Plan. No
Credit Party, Subsidiary of a Credit Party or ERISA Affiliate would
become subject to any withdrawal liability under ERISA if any such
party were to withdraw completely from all Multiemployer Plans and
Multiple Employer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed
made. No Credit Party, Subsidiary of a Credit Party or ERISA
Affiliate has received any notification that any Multiemployer Plan
is in reorganization (within the meaning of Section 4241 of ERISA),
is insolvent (within the meaning of Section 4245 of ERISA), or has
been terminated (within the meaning of Title IV of ERISA), and no
Multiemployer Plan is, to the best of each such party's knowledge,
reasonably expected to be in reorganization, insolvent, or
terminated.
(d) No prohibited transaction (within the meaning of Section
406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility has occurred with respect to a Plan which has
subjected or may subject any Credit Party, any Subsidiary of a Credit
Party or any ERISA Affiliate to any liability under Sections 406,
409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under
any agreement or other instrument pursuant to which any Credit Party,
any Subsidiary of a Credit Party or any ERISA Affiliate has agreed or
is required to indemnify any person against any such liability.
(e) No Credit Party, Subsidiary of a Credit Party nor any of
their ERISA Affiliates has material liability with respect to
"expected post-retirement benefit obligations" within the meaning of
the Financial Accounting Standards Board Statement 106. Each Plan
which is a welfare plan (as defined in Section 3(1) of ERISA) to
which Sections 601-609 of ERISA and Section 4980B of the Code apply
has been administered in compliance in all material respects with
such sections.
6.15 Organization Structure/Subsidiaries.
As of the Closing Date, (a) Schedule 6.15 is a complete and accurate
organization chart of the Combined Parties, and (b) no Credit Party has any
Subsidiaries or owns an interest, directly or indirectly, in any joint
venture, except as set forth on Schedule 6.15. The outstanding equity interest
of all Subsidiaries of the Credit Parties are validly issued, fully paid and
non-assessable and
44
are owned by the Credit Parties free and clear of all Liens. Schedule 6.15 shall
be updated as of the end of each fiscal quarter as set forth in Section 7.1(c).
6.16 Use of Proceeds; Margin Stock.
The proceeds of the Loans hereunder will be used solely for the
purposes specified in Section 7.10. None of the proceeds of the Loans will be
used in a manner that would violate Regulation U, Regulation X, or Regulation
T. No proceeds of the Loans hereunder will be used for the acquisition of
another Person unless the board of directors (or other comparable governing
body) or stockholders (or other equity owners), as appropriate, of such Person
has approved such acquisition.
6.17 Government Regulation.
No Credit Party, nor any of its Subsidiaries, is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Investment Company Act of 1940 or the Interstate Commerce Act,
each as amended. In addition, no Credit Party, nor any of its Subsidiaries, is
(a) an "investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, or controlled by such a company,
or (b) a "holding company," or a "Subsidiary company" of a "holding company,"
or an "affiliate" of a "holding company" or of a "Subsidiary" or a "holding
company," within the meaning of the Public Utility Holding Company Act of
1935, as amended. No director, executive officer or principal shareholder of a
Credit Party or any of its Subsidiaries is a director, executive officer or
principal shareholder of any Lender. For the purposes hereof the terms
"director," "executive officer" and "principal shareholder" (when used with
reference to any Lender) have the respective meanings assigned thereto in
Regulation O issued by the Board of Governors of the Federal Reserve System.
6.18 Environmental Matters.
(a) Except as would not have or be reasonably expected to
have a Material Adverse Effect:
(i) Each of the Properties and all operations
at the Properties are in material compliance with all
applicable Environmental Laws, and there is no violation of
any Environmental Law with respect to the Properties or the
businesses operated by a Credit Party or any of its
Subsidiaries (the "Businesses"), and there are no conditions
relating to the Businesses or Properties that would be
reasonably expected to give rise to liability under any
applicable Environmental Laws.
(ii) No Credit Party, nor any of its
Subsidiaries, has received any written notice of, or inquiry
from any Governmental Authority regarding, any violation,
alleged violation, non-compliance, liability or potential
liability regarding Hazardous Materials or compliance with
Environmental Laws with regard to any of the Properties or
the Businesses, nor does any Credit Party or any of its
Subsidiaries have knowledge that any such notice is being
threatened.
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(iii) Hazardous Materials have not been
transported or disposed of from the Properties, or
generated, treated, stored or disposed of at, on or under
any of the Properties or any other location, in each case
by, or on behalf or with the permission of, any Credit Party
or any of its Subsidiaries in a manner that would reasonably
be expected to give rise to liability under any applicable
Environmental Law.
(iv) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of any
Credit Party or any of its Subsidiaries, threatened, under
any Environmental Law to which any Credit Party or any of
its Subsidiaries is or will be named as a party, nor are
there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other
administrative or judicial requirements outstanding under
any Environmental Law with respect to any Credit Party or
any of its Subsidiaries, the Properties or the Businesses,
in any amount reportable under the federal Comprehensive
Environmental Response, Compensation and Liability Act or
any analogous state law, except releases in compliance with
any Environmental Laws.
(v) There has been no release or threat of
release of Hazardous Materials at or from the Properties, or
arising from or related to the operations (including,
without limitation, disposal) of a Credit Party or any of
its Subsidiaries in connection with the Properties or
otherwise in connection with the Businesses except in
compliance with Environmental Laws.
(vi) None of the Properties contains, or to
the best of our knowledge has previously contained, any
Hazardous Materials at, on or under the Properties in
amounts or concentrations that, if released, constitute or
constituted a violation of, or could give rise to liability
under, Environmental Laws.
(vii) No Credit Party, nor any of its
Subsidiaries, has assumed any liability of any Person (other
than another Borrower) under any Environmental Law.
(b) Each Credit Party, and each of its Subsidiaries, has
adopted procedures that are designed to (i) ensure that each such
party, any of its operations and each of the properties owned or
leased by such party remains in compliance with applicable
Environmental Laws and (ii) minimize any liabilities or potential
liabilities that each such party, any of its operations and each of
the properties owned or leased by each such party may have under
applicable Environmental Laws.
6.19 Solvency.
Each Credit Party, is and, after consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.
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6.20 Investments.
All Investments of the Credit Parties and their Subsidiaries are
Permitted Investments.
6.21 Location of Properties.
As of the Closing Date, set forth on Schedule 6.21 is (a) a list of
all Properties (with street address, county and state where located) and the
owner of such Property (b) a list of all Unsecured Properties. Schedule 6.21
shall be updated as of the end of each fiscal quarter as set forth in Section
7.1(c).
6.22 Disclosure.
Neither this Credit Agreement nor any financial statements delivered
to the Lenders nor any other document, certificate or statement furnished to
the Lenders by or on behalf of any Credit Party in connection with the
transactions contemplated hereby contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements contained therein or herein not misleading in light of the
circumstances in which made; provided, however, that the Credit Parties make
no representation or warranty regarding the information delivered pursuant to
Section 7.1(i).
6.23 Licenses, etc.
The Combined Parties have obtained, and hold in full force and
effect, all franchises, licenses, permits, certificates, authorizations,
qualifications, accreditations, easements, rights of way and other rights,
consents and approvals which are necessary for the operation of their
respective businesses as presently conducted, except where the failure to
obtain the same would not have or would not reasonably be expected to have a
Material Adverse Effect.
6.24 No Burdensome Restrictions.
No Combined Party is a party to any agreement or instrument or
subject to any other obligation or any charter or corporate restriction or any
provision of any applicable law, rule or regulation which, individually or in
the aggregate, would have or would be reasonably expected to have a Material
Adverse Effect.
6.25 Year 2000 Compliance.
Each Credit Party reasonably believes that the Year 2000 Problem has
been appropriately addressed by it and the Year 2000 Problem will not exist
with respect to it or any other Combined Party on and after January 1, 2000,
to the extent such Year 2000 Problem would cause or be reasonably expected to
cause a Material Adverse Effect.
6.26 Excluded Material Subsidiaries.
With respect to the Excluded Material Subsidiaries:
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(a) Brandywine Holdings I, Inc. holds a nominal interest in
BOP to ensure that BOP will at all times have at least two partners,
and has no other activity and owns no other assets.
(b) Brandywine Holdings II and Brandywine Holdings III have
no assets or activity and are in the process of being dissolved.
(c) Brandywine Realty Services Corporation ("BRSCO")
provides services to BOP and is Subsidiaries, as well as third
parties, but does not own any Properties. Although BOP owns ninety
five percent of the financial interest in BRSCO through ownership of
preferred and common interests, substantially all of the common
equity in BRSCO is held by a partnership in which neither BOP nor BRT
has any ownership.
(d) Each of the remaining Excluded Materials Subsidiaries is
an entity which is subject to provisions in its charter documents
that require it to be a "bankruptcy remote" or "single purpose"
entity and therefore prohibit it from, among other things,
guaranteeing or becoming jointly and severally liable for the
Indebtedness of others.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans, together with interest and
fees and other obligations then due and payable hereunder, have been paid in
full and the Commitments shall have terminated:
7.1 Information Covenants.
The Borrowers will furnish, or cause to be furnished, to the
Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and
in any event within 90 days after the close of each fiscal year of
the Credit Parties, a consolidated balance sheet and income statement
of the Credit Parties and their Subsidiaries as of the end of such
fiscal year, together with related consolidated statements of
operations and retained earnings and of cash flows for such fiscal
year, setting forth in comparative form consolidated figures for the
preceding fiscal year, all such financial information described above
to be in reasonable form and detail and audited by independent
certified public accountants of recognized national standing
reasonably acceptable to the Administrative Agent and whose opinion
shall be to the effect that such financial statements have been
prepared in accordance with GAAP (except for changes with which such
accountants concur) and shall not be limited as to the scope of the
audit or qualified in any manner.
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(b) Quarterly Financial Statements. As soon as available,
and in any event within 45 days after the close of each fiscal
quarter of the Credit Parties, a consolidated balance sheet and
income statement of the Credit Parties and their Subsidiaries, as of
the end of such fiscal quarter, together with related consolidated
statements of operations and retained earnings and of cash flows for
such fiscal quarter in each case setting forth in comparative form
consolidated figures for (A) the corresponding period of the
preceding fiscal year and (B) management's proposed budget for such
period, all such financial information described above to be in
reasonable form and detail and reasonably acceptable to the
Administrative Agent, and accompanied by a certificate of the chief
financial officer of BOP to the effect that such quarterly financial
statements fairly present in all material respects the financial
condition of the Credit Parties and their Subsidiaries and have been
prepared in accordance with GAAP, subject to changes resulting from
audit and normal year-end audit adjustments.
(c) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b)
above, a certificate of the chief financial officer of BRT,
substantially in the form of Exhibit 7.1(c), (i) demonstrating
compliance with the financial covenants contained in Section 7.2 by
calculation thereof as of the end of each such fiscal period, (ii)
stating that no Default or Event of Default exists, or if any Default
or Event of Default does exist, specifying the nature and extent
thereof and what action the Borrowers propose to take with respect
thereto, (iii) providing information regarding (A) Investments in a
manner to demonstrate compliance with Section 8.6, (B) construction
and development projects in a manner to demonstrate compliance with
Section 8.12 and (C) dividends and redemption of shares in a manner
to demonstrate compliance with Section 8.7 and (iv) updating Schedule
6.15 and Schedule 6.21 as appropriate.
(d) Accountant's Certificate. Within the period for delivery
of the annual financial statements provided in Section 7.1(a), a
certificate of the accountants conducting the annual audit stating
that they have reviewed this Credit Agreement and stating further
whether, in the course of their audit, they have become aware of any
Default or Event of Default and, if any such Default or Event of
Default exists, specifying the nature and extent thereof.
(e) Annual Information and Projections. Within 30 days after
the end of each fiscal year of the Credit Parties, all such financial
information regarding the Credit Parties and their Subsidiaries and
specifically regarding the Properties, as the Administrative Agent
shall reasonably request, including, but not limited to, partnership
and joint venture agreements, property cash flow projections,
property budgets, actual and budgeted capital expenditures, operating
statements (current year and immediately preceding year, if the
Property existed as a Property in the immediately preceding year),
mortgage information, rent rolls, lease expiration reports, leasing
status reports, note payable summary, bullet note summary, equity
funding requirements, contingent liability summary, line of credit
summary, line of credit collateral summary, wrap note or note
receivable summary, schedule of outstanding letters of credit,
summary of cash and cash equivalents, projection of management and
leasing fees and overhead budgets.
49
(f) Auditor's Reports. Promptly upon receipt thereof, a copy
of any "management letter" submitted by independent accountants to
any Credit Party or any of its Subsidiaries in connection with any
annual, interim or special audit of the books of such Credit Party or
any of its Subsidiaries.
(g) Reports. Promptly upon transmission or receipt thereof,
(i) copies of any filings and registrations with, and reports to or
from, the Securities and Exchange Commission, or any successor
agency, and copies of all financial statements, proxy statements,
notices and reports as any Credit Party or any of its Subsidiaries
shall send to its shareholders or partners generally, (ii) copies of
all income tax returns filed by a Credit Party and (iii) upon the
written request of the Administrative Agent, all reports and written
information to and from the United States Environmental Protection
Agency, or any state or local agency responsible for environmental
matters, the United States Occupational Health and Safety
Administration, or any state or local agency responsible for health
and safety matters, or any successor agencies or authorities
concerning environmental, health or safety matters; provided,
however, that if any such transmissions are done electronically, the
Borrowers shall instead promptly notify the Administrative Agent of
same and provide information on how to retrieve such information.
(h) Notices. Upon a Credit Party obtaining knowledge
thereof, such Credit Party will give written notice to the
Administrative Agent immediately of (i) the occurrence of an event or
condition consisting of a Default or Event of Default, specifying the
nature and existence thereof and what action the Credit Parties
propose to take with respect thereto, and (ii) the occurrence of any
of the following with respect to any Credit Party or any of its
Subsidiaries (A) the pendency or commencement of any litigation,
arbitral or governmental proceeding against any Credit Party or any
of its Subsidiaries which if adversely determined would have or would
be reasonably expected to have a Material Adverse Effect, (B) the
institution of any proceedings against any Credit Party or any of its
Subsidiaries with respect to, or the receipt of notice by such Person
of potential liability or responsibility for violation, or alleged
violation of any federal, state or local law, rule or regulation,
including but not limited to, Environmental Laws, the violation of
which would have or would be reasonably expected to have a Material
Adverse Effect, (C) the occurrence of any default or nonpayment of
nonrecourse Indebtedness of a Credit Party in an aggregate principal
amount in excess of $10,000,000 or (D) any information that a Credit
Party may have a Year 2000 Problem on or after January 1, 2000.
(i) ERISA. Upon a Credit Party or any ERISA Affiliate
obtaining knowledge thereof, the Credit Parties will give written
notice to the Administrative Agent promptly (and in any event within
five Business Days) of: (i) any event or condition, including, but
not limited to, any Reportable Event, that constitutes, or might
reasonably lead to, a ERISA Event; (ii) with respect to any
Multiemployer Plan, the receipt of notice as prescribed in ERISA or
otherwise of any withdrawal liability assessed against a Credit Party
or any ERISA Affiliate, or of a determination that any Multiemployer
Plan is in reorganization or insolvent (both within the meaning of
Title IV of ERISA); (iii) the failure to make full payment on or
before the due date (including extensions) thereof of all amounts
which a Credit Party or any ERISA Affiliate is required to contribute
to each Plan pursuant to its
50
terms and as required to meet the minimum funding standard set forth
in ERISA and the Code with respect thereto; or (iv) any change in the
funding status of any Plan that could have a Material Adverse Effect;
together, with a description of any such event or condition or a copy
of any such notice and a statement by the chief financial officer of
a Credit Party briefly setting forth the details regarding such
event, condition, or notice, and the action, if any, which has been
or is being taken or is proposed to be taken by a Credit Party or any
ERISA Affiliate with respect thereto. Promptly upon request, the
Credit Parties shall furnish the Administrative Agent and the Lenders
with such additional information concerning any Plan as may be
reasonably requested, including, but not limited to, copies of each
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of Section
3(39) of ERISA).
(j) Environmental.
(i) Subsequent to a notice from any
Governmental Authority that would reasonably cause concern
or during the existence of an Event of Default, and upon the
written request of the Administrative Agent, the Credit
Parties will furnish or cause to be furnished to the
Administrative Agent, at the Credit Parties' expense, an
updated report of an environmental assessment of reasonable
scope, form and depth, including, where appropriate,
invasive soil or groundwater sampling, by a consultant
reasonably acceptable to the Administrative Agent as to the
nature and extent of the presence of any Hazardous Materials
on any Property and as to the compliance by the Credit
Parties and with Environmental Laws. If the Credit Parties
fail to deliver such an environmental report within
seventy-five (75) days after receipt of such written request
then the Administrative Agent may arrange for same, and the
Credit Parties hereby grant to the Administrative Agent and
its representatives access to the Properties and a license
of a scope reasonably necessary to undertake such an
assessment (including, where appropriate, invasive soil or
groundwater sampling). The reasonable cost of any assessment
arranged for by the Administrative Agent pursuant to this
provision will be payable by the Credit Parties on demand.
(ii) Each of the Credit Parties and their
Subsidiaries will conduct and complete all investigations,
studies, sampling, and testing and all remedial, removal,
and other actions necessary to address all Hazardous
Materials on, from, or affecting any Property to the extent
necessary to be in compliance with all Environmental Laws
and all other applicable federal, state, and local laws,
regulations, rules and policies and with the orders and
directives of all Governmental Authorities exercising
jurisdiction over such Property to the extent any failure
would have or would be reasonably expected to have a
Material Adverse Effect.
(k) Year 2000 Information. Upon the written request of the
Administrative Agent, such information, assurances and documentation
(including, but not limited to, the
51
results of internal and external audit reports prepared in connection
therewith) reasonably acceptable to the Administrative Agent that the
Credit Parties and their Subsidiaries will take all reasonable
appropriate actions to prevent a Year 2000 Problem on or after
January 1, 2000.
(l) Other Information. With reasonable promptness upon any
such request, such other information regarding the Properties or
regarding the business, assets or financial condition of the Credit
Parties and their Subsidiaries as the Administrative Agent or any
Lender may reasonably request.
7.2 Financial Covenants.
(a) Debt Service Coverage Ratio. The Debt Service Coverage
Ratio, as of the end of each fiscal quarter of the Credit Parties,
shall be greater than or equal to 1.50 to 1.0.
(b) Interest Coverage Ratio. The Interest Coverage Ratio, as
of the end of each fiscal quarter of Credit Parties for the twelve
month period ending on such date, shall be greater than or equal to
2.25 to 1.0.
(c) Fixed Charge Coverage Ratio. The Fixed Charge Coverage
Ratio, as of the end of each fiscal quarter of the Credit Parties for
the twelve month period ending on such date, shall be greater than or
equal to 1.75 to 1.0.
(d) Net Worth. At all times, the Net Worth of the Credit
Parties and their Subsidiaries on a consolidated basis shall be
greater than or equal to the sum of (i) $700,000,000 plus (ii) 85% of
the Net Cash Proceeds from all Equity Issuances (other than Equity
Issuances referred to in the following subclause (iii)) plus (iii)
85% of the actual increase in Net Worth (if any) resulting from an
Equity Issuance made in connection with an Incentive Stock Plan.
(e) Leverage Ratio. Prior to the earlier of (i) the Leverage
Ratio, at the end of any fiscal quarter of the Credit Parties
subsequent to September 30, 1998, being less than or equal to .55 to
1.0. or (ii) one year following the Closing Date, (the earlier of
such dates referred to herein as the "Leverage Ratio Change Date")
the Leverage Ratio, as of the end of each fiscal quarter of the
Credit Parties, shall be less than or equal to .625 to 1.0.
Subsequent to the Leverage Ratio Change Date, the Leverage Ratio, as
of the end of each fiscal quarter of the Credit Parties, shall be
less than or equal to .55 to 1.0.
(f) Unsecured Debt Ratio. The Unsecured Debt Ratio, as of
the end of each fiscal quarter of the Credit Parties, shall be
greater than or equal to the following ratios for the following
periods:
(i) From the Closing Date to March 31, 1999, 1.6 to 1.0;
(ii) From April 1, 1999 to June 30, 1999, 1.8 to 1.0; and
(iii) From July 1, 1999 and thereafter 2.0 to 1.0.
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(g) Secured Debt Ratio. The Secured Debt Ratio, as of the
end of each fiscal quarter of the Credit Parties, shall be less than
or equal to the following ratios for the following periods:
(i) From the Closing Date to March 31, 1999, .40 to 1.0;
(ii) From April 1, 1999 to June 30, 1999, .35 to 1.0; and
(iii) From July 1, 1999 and thereafter .30 to 1.0.
(h) Unencumbered Cash Flow Ratio. The Unencumbered Cash Flow
Ratio, as of the end of each fiscal quarter of the Credit Parties,
shall be greater than or equal to the following ratios for the
following periods:
(i) From the Closing Date to September 30, 1999, 1.5 to
1.0;
(ii) From October 1, 1999 to September 30, 2000, 1.6 to
1.0; and
(iii) From October 1, 2000 and thereafter, 1.65 to 1.0.
(i) Credit Party Assets. At all times, at least 50% of Total
Assets must be owned by the Credit Parties.
7.3 Preservation of Existence.
Each of the Credit Parties will do all things necessary to preserve
and keep in full force and effect its existence, rights, franchises and
authority except as permitted by Section 8.4; provided that a Credit Party may
dissolve if it has no assets at the time of dissolution. Without limiting the
generality of the foregoing, BRT will do all things necessary to maintain its
status as a REIT.
7.4 Books and Records.
Each of the Credit Parties will, and will cause its Subsidiaries to,
keep complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of GAAP (including the
establishment and maintenance of appropriate reserves).
7.5 Compliance with Law.
Each of the Credit Parties will, and will cause its Subsidiaries to,
comply in all material respects with all material laws, rules, regulations and
orders, and all applicable material restrictions imposed by all Governmental
Authorities, applicable to it and its property (including, without limitation,
Environmental Laws and ERISA).
7.6 Payment of Taxes and Other Indebtedness.
Each of the Credit Parties will, and will cause its Subsidiaries to,
pay, settle or discharge (a) all taxes, assessments and governmental charges
or levies imposed upon it, or upon its income or profits, or upon any of its
properties, before they shall become delinquent, (b) all lawful claims
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(including claims for labor, materials and supplies) which, if unpaid, might
give rise to a Lien upon any of its properties, and (c) except as prohibited
hereunder, all of its other Indebtedness as it shall become due; provided,
however, that a Credit Party or any of its Subsidiaries shall not be required
to pay any such tax, assessment, charge, levy, claim or Indebtedness which is
being contested in good faith by appropriate proceedings and as to which
adequate reserves therefor have been established in accordance with GAAP,
unless the failure to make any such payment (i) would give rise to an
immediate right to foreclose on a Lien securing such amounts or (ii) would
have a Material Adverse Effect.
7.7 Insurance.
Each of the Credit Parties will, and will cause its Subsidiaries to,
at all times maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) in such amounts, covering such risks and liabilities
and with such deductibles or self-insurance retentions as are in accordance
with normal industry practice.
7.8 Maintenance of Assets.
Each of the Credit Parties will, and will cause its Subsidiaries to,
maintain and preserve its Properties and all other assets in good repair,
working order and condition, normal wear and tear excepted, and will make, or
cause to be made, in the Properties and other assets, from time to time, all
repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto as may be needed or proper, to the extent and in the
manner customary for companies in similar businesses.
7.9 Performance of Obligations.
Each of the Credit Parties will, and will cause its Subsidiaries to,
perform in all material respects all of its obligations under the terms of all
material agreements, indentures, mortgages, security agreements or other debt
instruments to which it is a party or by which it is bound.
7.10 Use of Proceeds.
The Credit Parties will use the proceeds of the Loans solely to
acquire office and industrial properties (and in no event shall be used to
repay Indebtedness of the Credit Parties or their Subsidiaries or for the
development and construction of any Properties).
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7.11 Audits/Inspections.
Upon reasonable notice and during normal business hours, each Credit
Party will, and will cause its Subsidiaries to, permit representatives
appointed by the Administrative Agent, including, without limitation,
independent accountants, agents, attorneys and appraisers to visit and inspect
such Credit Party's or other Combined Party's property, including, without
limitation, the Properties, including its books and records, its accounts
receivable and inventory, its facilities and its other business assets, and to
make photocopies or photographs thereof and to write down and record any
information such representative obtains and shall permit the Administrative
Agent or its representatives to investigate and verify the accuracy of
information provided to the Lenders, and to discuss all such matters with the
officers, employees and representatives of the Credit Parties, their
Subsidiaries and any other Combined Party.
7.12 Additional Credit Parties.
At any time a Person that is not a Credit Party becomes a Material
Subsidiary of a Credit Party (other than, subject to Section 7.2(i), Excluded
Material Subsidiaries or any entity which is subject to provisions in its
charter documents that prohibit it from guaranteeing or becoming jointly and
severally liable for the Indebtedness of others), the Borrowers shall notify
the Administrative Agent and promptly thereafter (but in any event within 30
days after such Person becomes a Material Subsidiary of a Credit Party): (a)
execute a Joinder Agreement in substantially the form of Exhibit 7.12 and (b)
deliver such other documentation as the Administrative Agent may reasonably
request in connection with the foregoing, including, without limitation,
certified resolutions and other organizational and authorizing documents of
such Person and favorable opinions of counsel to such Person (which shall
cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above), all in form, content
and scope reasonably satisfactory to the Administrative Agent.
7.13 Interest Rate Protection Agreements.
If for any consecutive period of 30 days or more Eurodollar Loans
constitute less than 75% of the aggregate principal amount of all outstanding
Loans, then the Borrowers shall enter into interest rate protection agreements
in form and substance acceptable to the Administrative Agent.
7.14 [Intentionally Omitted]
7.15 Construction.
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With respect to any construction and development engaged in by the
Combined Parties, the Credit Parties shall or shall cause another Person to:
(a) comply with all applicable regulations and codes and (b) complete all such
construction and development in accordance with approved plans and
specifications.
7.16 Acquisitions.
If at the time a Credit Party or one of its Subsidiaries anticipates
making an Investment or an acquisition in excess of $20 million there are any
Loans outstanding, then ten Business Days prior to such Credit Party (or
Subsidiary) making such Investment or acquisition, the Borrowers shall provide
the Administrative Agent written notice of such Investment or acquisition,
together with a certification as to compliance with the terms of the Credit
Agreement, including, without limitation, Section 7.2, after giving effect to
such Investment or acquisition. If there are no Loans outstanding, the
Borrowers shall give the Administrative Agent written notice of such
Investment or acquisition by a Credit Party within five Business Days after
the occurrence of such Investment or acquisition.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans, together with interest,
fees and other obligations hereunder, have been paid in full and the
Commitments hereunder shall have terminated:
8.1 Indebtedness.
No Credit Party will, nor will it permit any Combined Party to,
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the
other Credit Documents;
(b) Indebtedness owing from one Credit Party to another
Credit Party;
(c) Indebtedness in respect of current accounts payable and
accrued expenses incurred in the ordinary course of business; and
(d) Other Indebtedness as long as, prior to and after giving
effect thereto, the Credit Parties are otherwise in compliance with the terms
of this Credit Agreement.
8.2 Liens.
No Credit Party will, nor will it permit any of its Subsidiaries to,
contract, create, incur, assume or permit to exist any Lien with respect to
(a) any Unsecured Properties, unless after giving affect to the creation of
such Lien (i) the Credit Parties are in compliance on a Pro Forma Basis with
the financial covenants set forth in Section 7.2 and (ii) no Default or Event
of Default or (b) any of its other Properties or any other assets of any kind
(whether real or personal, tangible or intangible), whether now owned or after
acquired, except for Permitted Liens.
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8.3 Nature of Business.
No Credit Party will, nor will it permit any of its Subsidiaries to,
alter the character of its business from that conducted as of the Closing Date
or engage in any business other than the business conducted as of the Closing
Date.
8.4 Consolidation and Merger.
No Credit Party will enter into any transaction of merger or
consolidation or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution); provided that notwithstanding the foregoing
provisions of this Section 8.4, (a) any Credit Party may be merged or
consolidated with or into another Credit Party; provided that (i) if the
transaction is between a Borrower and another Credit Party such Borrower is
the continuing or surviving entity; (ii) the Administrative Agent is given
prior written notice of such action, and the Credit Parties execute and
deliver such documents, instruments and certificates as the Administrative
Agent may reasonably request; and (iii) after giving effect thereto no Default
or Event of Default exists; and (b) upon prior written notification to the
Administrative Agent, as long as no Default or Event of Default exists, a
Credit Party that has no assets and no revenues may be dissolved.
8.5 Sale or Lease of Assets.
(a) No Property may be conveyed, sold, leased, transferred or
otherwise disposed of except (i) the Properties as indicated on Schedule 8.5
as long as such conveyance, sale, lease, transfer or other disposal occurs on
or before March 31, 1999 or (ii) such other Properties if, after giving effect
thereto, (A) the Credit Parties are in compliance on a Pro Forma Basis with
the financial covenants set forth in Section 7.2 and (B) no Default or Event
of Default exists.
(b) No equity interest in any Credit Party may be conveyed, sold,
transferred or otherwise disposed of except (i) the transfers of equity
interests as indicated on Schedule 8.5 as long as such conveyance, sale,
transfer or other disposal occurs on or before March 31, 1999 or (ii) such
other equity interests if, after giving effect thereto (i) the Credit Parties
are in compliance on a Pro Forma Basis with the financial covenants set forth
in Section 7.2 and (ii) no Default or Event of Default exists; provided that
any sale of an equity interest in a Borrower is subject to Section 9.1(i).
Upon the sale of an equity interest in a Guarantor in conformance with the
terms hereof, if after the sale of such equity interest such Guarantor is no
longer a Material Subsidiary the Lenders agree to release such Guarantor from
its obligations hereunder.
8.6 Advances, Investments and Loans.
Neither the Credit Parties nor any of their Subsidiaries will (a)
make any Investments except for Permitted Investments or (b) so long as
Brandywine Realty Services Partnership ("BRSP") is named in Section 2.5, make
any Investments in BRSP (whether or not such Investment would otherwise be a
Permitted Investment) or otherwise cause or permit BRSP to be a Subsidiary of
any Credit Party.
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8.7 Restricted Payments.
(a) No Credit Party will, directly or indirectly, declare or
pay any dividends or make any other distribution upon any of its
shares of beneficial interests or any shares of its capital stock of
any class or with respect to any of its partnership interests that
exceeds, in the aggregate, 90% of Funds From Operations earned
subsequent to the Effective Date; provided that (i) any Subsidiary of
a Credit Party may pay dividends or make distributions to its parent
and (ii) BRT may pay such dividends as is necessary to maintain its
status as a REIT.
(b) Except as permitted by Section 8.6 and except for the
conversion of partnership units of BOP into cash or into shares of
beneficial interest of BRT, no Credit Party will, nor will it permit
any of its Subsidiaries to, at any time, for cash, purchase, redeem
or otherwise acquire or retire or make any provisions for redemption,
acquisition or retirement of any shares of its capital stock of any
class or any warrants or options to purchase any such shares or with
respect to any of its partnership interests.
8.8 Transactions with Affiliates.
No Credit Party will, nor will it permit any of its Subsidiaries to,
enter into any transaction or series of transactions, whether or not in the
ordinary course of business, with any officer, director, shareholder,
Subsidiary or Affiliate other than on terms and conditions substantially as
favorable as would be obtainable in a comparable arm's-length transaction with
a Person other than an officer, director, shareholder, Subsidiary or
Affiliate.
8.9 Fiscal Year; Organizational Documents.
No Credit Party will (a) change its fiscal year or (b) change its
articles or certificate of incorporation, its bylaws, its declaration of
trust, its limited liability company agreement, its articles or certificate of
partnership or partnership agreement or any other organization or formation
documents in any manner that would have an adverse effect of the rights of the
Lenders under the Credit Documents; provided that (i) BRT may take such
action, with prior written notice to the Administrative Agent, as is necessary
to maintain its status as a REIT and (ii) the Credit Parties will provide
prompt written notice of any change to be made in compliance with the terms of
this Section 8.9.
8.10 Limitations.
No Credit Party will, nor will it permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause, incur, assume, suffer or
permit to exist or become effective any consensual encumbrance or restriction
of any kind on the ability of any such Person to pay any Indebtedness owed to
the Credit Parties.
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8.11 Other Negative Pledges.
The Credit Parties will not enter into, assume or become subject to
any agreement prohibiting or otherwise restricting the creation or assumption
of any Lien upon its properties or assets, whether now owned or hereafter
acquired, or requiring the grant of any security for such obligation if
security is given for some other obligation except as provided under the
Credit Documents.
8.12 Construction and Development.
The Credit Parties shall not engage in construction and development
projects in which the total project costs of all such concurrent construction
and development projects exceed, in the aggregate at any one time, 15% of
Total Assets (it being understood and agreed for purposes of this Section 8.12
that a project shall be considered under construction and/or development until
a certificate of occupancy therefore (or other similar certificate) shall have
been issued by the applicable Governmental Authority).
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. The Credit Parties shall default in the payment
(i) when due of any principal amount of any Loans or any
reimbursement obligation arising from drawings under Letters of
Credit or (ii) within three days of when due of any interest on the
Loans or any fees or other amounts owing hereunder, under any of the
other Credit Documents or in connection herewith.
(b) Representations. Any representation, warranty or
statement made or deemed to be made by any Credit Party herein, in
any of the other Credit Documents, or in any statement or certificate
delivered or required to be delivered pursuant hereto or thereto
shall prove untrue in any material respect on the date as of which it
was made or deemed to have been made.
(c) Covenants. Any Credit Party shall:
(i) default in the due performance or
observance of any term, covenant or agreement contained in
Sections 7.2, 7.3, 7.10, 7.11, 7.12, 7.14 or 8.1 through
8.12 inclusive; provided that if the Credit Parties fail to
comply with Section 7.2(e) solely as a result of a change in
the Capitalization Rate by the Lenders, a Default or an
Event of Default shall not exist unless the Credit Parties
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also fail to comply with Section 7.2(e) as of the last day
of any subsequent fiscal quarter of the Credit Parties; or
(ii) default in the due performance or
observance by it of any term, covenant or agreement
contained in Section 7.1 and such default shall continue
unremedied for a period of five Business Days after the
earlier of a Credit Party becoming aware of such default or
notice thereof given by the Administrative Agent; or
(iii) default in the due performance or
observance by it of any term, covenant or agreement (other
than those referred to in subsections (a), (b) or (c)(i) or
(ii) of this Section 9.1) contained in this Credit Agreement
and such default shall continue unremedied for a period of
at least 30 days after the earlier of a Credit Party
becoming aware of such default or notice thereof given by
the Administrative Agent.
(d) Other Credit Documents. (i) Any Credit Party shall
default in the due performance or observance of any term, covenant or
agreement in any of the other Credit Documents and such default shall
continue unremedied for a period of at least 30 days after the
earlier of a Credit Party becoming aware of such default or notice
thereof given by the Administrative Agent, or (ii) any Credit
Document (or any provision of any Credit Document, including Section
4 of the Credit Agreement) shall fail to be in full force and effect
or any Credit Party shall so assert or any Credit Document shall fail
to give the Administrative Agent and/or the Lenders the security
interests, liens, rights, powers and privileges purported to be
created thereby.
(e) Bankruptcy, etc. The occurrence of any of the following
with respect to any Credit Party or any of its Subsidiaries (i) a
court or governmental agency having jurisdiction in the premises
shall enter a decree or order for relief in respect of any Credit
Party or any of its Subsidiaries in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of any Credit
Party or any of its Subsidiaries or for any substantial part of its
property or ordering the winding up or liquidation of its affairs; or
(ii) an involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect is commenced against
any Credit Party or any of its Subsidiaries and such petition remains
unstayed and in effect for a period of 60 consecutive days; or (iii)
any Credit Party or any of its Subsidiaries shall commence a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or
consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of such Person or any substantial part of its property or
make any general assignment for the benefit of creditors; or (iv) any
Credit Party or any of its Subsidiaries shall admit in writing its
inability to pay its debts generally as they become due or any action
shall be taken by such Person in furtherance of any of the aforesaid
purposes.
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(f) Defaults under Other Agreements. With respect to any
recourse Indebtedness (other than Indebtedness outstanding under this
Credit Agreement) of any Credit Party or any of its Subsidiaries in
an aggregate principal amount in excess of $10,000,000, (i) a Credit
Party or one of its Subsidiaries shall (A) default in any payment
(beyond the applicable grace period with respect thereto, if any)
with respect to any such recourse Indebtedness, or (B) default (after
giving effect to any applicable grace period) in the observance or
performance of any term, covenant or agreement relating to such
recourse Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event or
condition shall occur or condition exist, the effect of which default
or other event or condition is to cause, or permit, the holder or
holders of such recourse Indebtedness (or trustee or agent on behalf
of such holders) to cause (determined without regard to whether any
notice or lapse of time is required) any such recourse Indebtedness
to become due prior to its stated maturity; or (ii) any such recourse
Indebtedness shall be declared due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment prior
to the stated maturity thereof; or (iii) any such Indebtedness shall
mature and remain unpaid. With respect to any nonrecourse
Indebtedness of any Credit Party or any of its Subsidiaries in an
aggregate principal amount in excess of $20,000,000, a default in
payment (whether by acceleration or otherwise) shall occur and such
payment default is not cured or waived within sixty days after the
occurrence thereof.
(g) Judgments. One or more judgments, orders, or decrees
shall be entered against any one or more of the Credit Party
involving a liability of $10,000,000 or more, in the aggregate (to
the extent not paid or covered by insurance provided by a carrier who
has acknowledged coverage), and such judgments, orders or decrees (i)
are the subject of any enforcement proceeding commenced by any
creditor or (ii) shall continue unsatisfied, undischarged and
unstayed for a period ending on the first to occur of (A) the last
day on which such judgment, order or decree becomes final and
unappealable or (B) 20 days.
(h) ERISA Events. The occurrence of any of the following
events or conditions, unless such event or occurrence would not have
or be reasonably expected to have a Material Adverse Effect: (1) any
"accumulated funding deficiency," as such term is defined in Section
302 of ERISA and Section 412 of the Code, whether or not waived,
shall exist with respect to any Plan, or any lien shall arise on the
assets of a Credit Party or any ERISA Affiliate in favor of the PBGC
or a Plan; (2) an ERISA Event shall occur with respect to a Single
Employer Plan, which is, in the reasonable opinion of the
Administrative Agent, likely to result in the termination of such
Plan for purposes of Title IV of ERISA; (3) an ERISA Event shall
occur with respect to a Multiemployer Plan or Multiple Employer Plan,
which is, in the reasonable opinion of the Administrative Agent,
likely to result in (i) the termination of such Plan for purposes of
Title IV of ERISA, or (ii) a Credit Party or any ERISA Affiliate
incurring any liability in connection with a withdrawal from,
reorganization of (within the meaning of Section 4241 of ERISA), or
insolvency (within the meaning of Section 4245 of ERISA) of such
Plan; or (4) any prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach of
fiduciary responsibility shall occur which may subject a Credit Party
or any ERISA Affiliate to any liability under Sections 406, 409,
502(i), or 502(l) of ERISA or Section 4975 of the Code,
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or under any agreement or other instrument pursuant to which a Credit
Party or any ERISA Affiliate has agreed or is required to indemnify any
person against any such liability.
(i) Ownership. There shall occur a Change of Control.
(j) Management. Xxxxxx Xxxxxxx is no longer active in the
management of the Credit Parties and their Subsidiaries; provided
that upon the death or disability of Xxxxxx Xxxxxxx, the Credit
Parties and their Subsidiaries shall have six months to provide the
Administrative Agent with substitute personnel as replacement; such
substitute personnel to be acceptable to the Administrative Agent in
its sole reasonable discretion.
(k) REIT Status. BRT does not maintain its REIT status or is
no longer deemed to be a REIT.
(l) Senior Credit Agreement. An Event of Default (as defined
in the Senior Credit Agreement) occurs.
9.2 Acceleration; Remedies.
Upon the occurrence of an Event of Default, and at any time
thereafter unless and until such Event of Default has been waived in writing
by the Required Lenders (or the Lenders as may be required hereunder), the
Administrative Agent shall, upon the request and direction of Lenders whose
aggregate Credit Exposure constitutes at least 66 2/3% of the Credit Exposure
of all Lenders, by written notice to the Borrowers, take any of the following
actions without prejudice to the rights of the Administrative Agent or any
Lender to enforce its claims against the Borrowers, except as otherwise
specifically provided for herein:
(a) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(b) Acceleration of Loans. Declare the unpaid principal of
and any accrued interest in respect of all Loans, any reimbursement
obligations arising from drawings under Letters of Credit and any and
all other indebtedness or obligations of any and every kind owing by
a Credit Party to any of the Lenders hereunder to be due whereupon
the same shall be immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby
waived by the Credit Parties.
(c) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents, including,
without limitation, all rights and remedies against a Guarantor and
all rights of set-off.
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Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all accrued interest in respect thereof, all accrued and unpaid fees,
and all other indebtedness or obligations owing to the Lenders hereunder shall
immediately become due and payable without the giving of any notice or other
action by the Administrative Agent or the Lenders, which notice or other
action is expressly waived by the Credit Parties.
Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor"
holding a separate "claim" within the meaning of Section 101(5) of the
Bankruptcy Code or any other insolvency statute.
9.3 Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Credit Agreement, after
the occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Administrative Agent, or any Lender on account of
amounts outstanding under any of the Credit Documents, shall be paid over or
delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys'
fees) of the Administrative Agent in connection with enforcing the
rights of the Lenders under the Credit Documents;
SECOND, to payment of any fees owed to the Administrative
Agent;
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses, (including, without limitation, reasonable attorneys'
fees) of each of the Lenders in connection with enforcing its rights
under the Credit Documents;
FOURTH, to the payment of all accrued fees and interest
payable to the Lenders hereunder;
FIFTH, to the payment of the outstanding principal amount of
the Loans, pro rata, as set forth below;
SIXTH, to all other obligations which shall have become due
and payable under the Credit Documents and not repaid pursuant to
clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever
may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; and (b) each of the Lenders shall receive an amount equal
to its pro rata share (based on the proportion that the then outstanding Loans
held by such Lender bears to the aggregate then outstanding Loans) of amounts
available to be applied pursuant to clauses "THIRD", "FOURTH," "FIFTH," and
"SIXTH" above.
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SECTION 10
AGENCY PROVISIONS
10.1 Appointment.
Each Lender hereby designates and appoints NationsBanc Mortgage
Capital Corp. as Administrative Agent of such Lender to act as specified
herein and the other Credit Documents, and each such Lender hereby authorizes
the Administrative Agent, as the agent for such Lender, to take such action on
its behalf under the provisions of this Credit Agreement and the other Credit
Documents and to exercise such powers and perform such duties as are expressly
delegated by the terms hereof and of the other Credit Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere herein and in the other Credit Documents,
the Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein and therein, or any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Credit Agreement or
any of the other Credit Documents, or shall otherwise exist against the
Administrative Agent. The provisions of this Section are solely for the
benefit of the Administrative Agent and the Lenders and none of the Credit
Parties shall have any rights as a third party beneficiary of the provisions
hereof. In performing its functions and duties under this Credit Agreement and
the other Credit Documents, the Administrative Agent shall act solely as an
agent of the Lenders and does not assume and shall not be deemed to have
assumed any obligation or relationship of agency or trust with or for any
Credit Parties.
10.2 Delegation of Duties.
The Administrative Agent may execute any of its duties hereunder or
under the other Credit Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care.
10.3 Exculpatory Provisions.
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (a) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection herewith or in connection with any of the other Credit Documents
(except for its or such Person's own gross negligence or willful misconduct)
or (b) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any of the Credit Parties
contained herein or in any of the other Credit Documents or in any
certificate, report, document, financial statement or other written or oral
statement referred to or provided for in, or received by the Administrative
Agent under or in connection herewith or in connection with the other Credit
Documents, or enforceability or sufficiency therefor of any of the other
Credit Documents, or for any failure of the Credit Parties to
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perform their obligations hereunder or thereunder. The Administrative Agent
shall not be responsible to any Lender for the effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Credit
Agreement, or any of the other Credit Documents or for any representations,
warranties, recitals or statements made herein or therein or made by the Credit
Parties in any written or oral statement or in any financial or other
statements, instruments, reports, certificates or any other documents in
connection herewith or therewith furnished or made by the Administrative Agent
to the Lenders or by or on behalf of the Credit Parties to the Administrative
Agent or any Lender or be required to ascertain or inquire as to the performance
or observance of any of the terms, conditions, provisions, covenants or
agreements contained herein or therein or as to the use of the proceeds of the
Loans or the use of the Letters of Credit or of the existence or possible
existence of any Default or Event of Default or to inspect the properties,
books or records of the Credit Parties. The Administrative Agent is not a
trustee for the Lenders and owes no fiduciary duty to the Lenders.
10.4 Reliance on Communications.
The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex
or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to any of the Credit Parties,
independent accountants and other experts selected by the Administrative Agent
with reasonable care). The Administrative Agent may deem and treat each Lender
as the owner of its interests hereunder for all purposes unless a written
notice of assignment, negotiation or transfer thereof shall have been filed
with the Administrative Agent in accordance with Section 11.3(b). The
Administrative Agent shall be fully justified in failing or refusing to take
any action under this Credit Agreement or under any of the other Credit
Documents unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or under any of the other
Credit Documents in accordance with a request of the Required Lenders (or to
the extent specifically provided in Section 11.6, all the Lenders) and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders (including their successors and assigns).
10.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
the Administrative Agent has received notice from a Lender or a Credit Party
referring to the Credit Document, describing such Default or Event of Default
and stating that such notice is a "notice of default." In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
give prompt notice thereof to the Lenders. The Administrative Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders.
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10.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative
Agent, NMS nor any of their officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to
it and that no act by the Administrative Agent, NMS or any affiliate thereof
hereinafter taken, including any review of the affairs of any Credit Party,
shall be deemed to constitute any representation or warranty by the
Administrative Agent or NMS to any Lender. Each Lender represents to the
Administrative Agent and NMS that it has, independently and without reliance
upon the Administrative Agent or NMS or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of the Credit
Parties and made its own decision to make its Loans hereunder and enter into
this Credit Agreement. Each Lender also represents that it will, independently
and without reliance upon the Administrative Agent, NMS 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 analysis, appraisals and decisions
in taking or not taking action under this Credit Agreement, and to make such
investigation as it deems necessary to inform itself as to the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Credit Parties. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent and NMS shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, assets, property, financial
or other conditions, prospects or creditworthiness of the Credit Parties which
may come into the possession of the Administrative Agent, NMS or any of their
officers, directors, employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its
capacity as such (to the extent not reimbursed by the Credit Parties and
without limiting the obligation of the Credit Parties to do so), ratably
according to their respective Commitments (or if the Commitments have expired
or been terminated, in accordance with the respective principal amounts of
outstanding Loans and Participation Interest of the Lenders), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever
which may at any time (including without limitation at any time following
payment in full of the Obligations) be imposed on, incurred by or asserted
against the Administrative Agent in its capacity as such in any way relating
to or arising out of this Credit Agreement or the other Credit Documents or
any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross negligence or
willful misconduct of the Administrative Agent. If any indemnity furnished to
the Administrative Agent for any purpose shall, in the opinion of the
Administrative Agent, be insufficient or become impaired, the Administrative
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished. The
agreements in this Section
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shall survive the payment of the Obligations and all other amounts payable
hereunder and under the other Credit Documents.
10.8 Administrative Agent in Its Individual Capacity.
The Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Credit
Parties as though the Administrative Agent were not the Administrative Agent
hereunder. With respect to the Loans made and Letters of Credit issued and all
obligations owing to it, the Administrative Agent shall have the same rights
and powers under this Credit Agreement as any Lender and may exercise the same
as though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
10.9 Successor Agent.
The Administrative Agent may, at any time, resign upon 20 days
written notice to the Lenders. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 45 days after the
notice of resignation, then the retiring Administrative Agent shall select a
successor Administrative Agent provided such successor is a Lender hereunder
or an Eligible Assignee. Upon the acceptance of any appointment as the
Administrative Agent hereunder by a successor, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations as the Administrative Agent, as appropriate, under this Credit
Agreement and the other Credit Documents and the provisions of this Section
10.9 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was the Administrative Agent under this Credit Agreement.
SECTION 11
MISCELLANEOUS
11.1 Notices.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to
the number set out below, (c) the Business Day following the day on which the
same has been delivered prepaid to a reputable national overnight air courier
service, or (d) the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address or telecopy numbers set forth on Schedule
11.1, or at such other address as such party may specify by written notice to
the other parties hereto.
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11.2 Right of Set-Off.
In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and the commencement of remedies described
in Section 9.2, each Lender is authorized at any time and from time to time,
without presentment, demand, protest or other notice of any kind (all of which
rights being hereby expressly waived), to set-off and to appropriate and apply
any and all deposits (general or special) and any other indebtedness at any
time held or owing by such Lender (including, without limitation, branches,
agencies or Affiliates of such Lender wherever located) to or for the credit
or the account of any Credit Party against obligations and liabilities of such
Credit Party to the Lenders hereunder, under the Notes, the other Credit
Documents or otherwise, irrespective of whether the Administrative Agent or
the Lenders shall have made any demand hereunder and although such
obligations, liabilities or claims, or any of them, may be contingent or
unmatured, and any such set-off shall be deemed to have been made immediately
upon the occurrence of an Event of Default even though such charge is made or
entered on the books of such Lender subsequent thereto. The Credit Parties
hereby agree that any Person purchasing a participation in the Loans and
Commitments hereunder pursuant to Section 11.3(c) or 3.8 may exercise all
rights of set-off with respect to its participation interest as fully as if
such Person were a Lender hereunder.
11.3 Benefit of Agreement.
(a) Generally. This Credit Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided that none of
the Credit Parties may assign and transfer any of its interests
(except as permitted by Sections 8.4 or 8.5) without the prior
written consent of the Lenders; and provided further that the rights
of each Lender to transfer, assign or grant participations in its
rights and/or obligations hereunder shall be limited as set forth
below in subsections (b) and (c) of this Section 11.3.
Notwithstanding the above (including anything set forth in
subsections (b) and (c) of this Section 11.3), nothing herein shall
restrict, prevent or prohibit any Lender from (A) pledging its Loans
hereunder to a Federal Reserve Bank in support of borrowings made by
such Lender from such Federal Reserve Bank, or (B) granting
assignments or participations in such Lender's Loans and/or
Commitments hereunder to its parent company and/or to any Affiliate
of such Lender or to any existing Lender or Affiliate thereof.
(b) Assignments. In addition to the assignments permitted by
Section 11.3(a), each Lender may, with the prior written consent of
the Borrowers and the Administrative Agent (provided that no consent
of the Borrowers shall be required during the existence and
continuation of an Event of Default), which consent shall not be
unreasonably withheld or delayed, assign all or a portion of its
rights and obligations hereunder pursuant to an assignment agreement
substantially in the form of Exhibit 11.3 to one or more Eligible
Assignees; provided that (i) any such assignment shall be in a
minimum aggregate amount of $10,000,000 of the Commitments and in
integral multiples of $1,000,000 above such amount (or the remaining
amount of Commitments held by such Lender) and (ii) each such
assignment shall be of a constant, not varying, percentage of all of
the assigning Lender's
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rights and obligations under the Commitment being assigned. Any
assignment hereunder shall be effective upon satisfaction of the
conditions set forth above and delivery to the Administrative Agent
of a duly executed assignment agreement together with a transfer fee
of $3,500 payable to the Administrative Agent for its own account.
Upon the effectiveness of any such assignment, the assignee shall
become a "Lender" for all purposes of this Credit Agreement and the
other Credit Documents and, to the extent of such assignment, the
assigning Lender shall be relieved of its obligations hereunder to
the extent of the Loans and Commitment components being assigned. The
Borrowers agree that upon notice of any such assignment and surrender
of the appropriate Note or Notes, it will promptly provide to the
assigning Lender and to the assignee separate promissory notes in the
amount of their respective interests substantially in the form of the
original Note or Notes (but with notation thereon that it is given in
substitution for and replacement of the original Note or Notes or any
replacement notes thereof).
By executing and delivering an assignment agreement in accordance
with this Section 11.3(b), the assigning Lender thereunder and the
assignee thereunder shall be deemed to confirm to and agree with each
other and the other parties hereto as follows: (i) such assigning
Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim
and the assignee warrants that it is an Eligible Assignee; (ii)
except as set forth in clause (i) above, such assigning Lender makes
no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or
in connection with this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant
hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Credit
Agreement, any of the other Credit Documents or any other instrument
or document furnished pursuant hereto or thereto or the financial
condition of any Credit Party or the performance or observance by any
Credit Party of any of its obligations under this Credit Agreement,
any of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such
assignment agreement; (iv) such assignee confirms that it has
received a copy of this Credit Agreement, the other Credit Documents
and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such
assignment agreement; (v) such assignee will independently and
without reliance upon the Administrative Agent, such assigning Lender
or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Credit
Agreement and the other Credit Documents; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action on its
behalf and to exercise such powers under this Credit Agreement or any
other Credit Document as are delegated to the Administrative Agent by
the terms hereof or thereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it
will perform in accordance with their terms all the obligations which
by the terms of this Credit Agreement and the other Credit Documents
are required to be performed by it as a Lender.
(c) Participations. Each Lender may sell, transfer, grant or
assign participations in all or any part of such Lender's interests
and obligations hereunder; provided that (i) such
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selling Lender shall remain a "Lender" for all purposes under this
Credit Agreement (such selling Lender's obligations under the Credit
Documents remaining unchanged) and the participant shall not
constitute a Lender hereunder, (ii) no such participant shall have,
or be granted, rights to approve any amendment or waiver relating to
this Credit Agreement or the other Credit Documents except to the
extent any such amendment or waiver would (A) reduce the principal of
or rate of interest on or fees in respect of any Loans in which the
participant is participating or increase any Commitments with respect
thereto, or (B) postpone the date fixed for any payment of principal
(including the extension of the final maturity of any Loan or the
date of any mandatory prepayment), interest or fees in which the
participant is participating, (iii) sub-participations by the
participant (except to an Affiliate, parent company or Affiliate of a
parent company of the participant) shall be prohibited and (iv) any
such participations shall be in a minimum aggregate amount of
$10,000,000 of the Commitments and in integral multiples of
$1,000,000 in excess thereof. In the case of any such participation,
the participant shall not have any rights under this Credit Agreement
or the other Credit Documents (the participant's rights against the
selling Lender in respect of such participation to be those set forth
in the participation agreement with such Lender creating such
participation) and all amounts payable by the Credit Parties
hereunder shall be determined as if such Lender had not sold such
participation; provided, however, that such participant shall be
entitled to receive additional amounts under Sections 3.9, 3.12, 3.13
and 3.14 to the same extent that the Lender from which such
participant acquired its participation would be entitled to the
benefit of such cost protection provisions.
11.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent or any
Lender in exercising any right, power or privilege hereunder or under any
other Credit Document and no course of dealing between the Credit Parties and
the Administrative Agent or any Lender shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege
hereunder or under any other Credit Document preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies provided herein are
cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any Lender would otherwise have. No notice to or
demand on any Credit Party in any case shall entitle any Credit Party to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Administrative Agent or the Lenders
to any other or further action in any circumstances without notice or demand.
11.5 Payment of Expenses; Indemnification.
The Credit Parties agree to: (a) pay all reasonable out-of-pocket
costs and expenses of (i) the Administrative Agent and NMS in connection with
(A) the negotiation, preparation, execution and delivery, syndication and
administration of this Credit Agreement and the other Credit Documents and the
documents and instruments referred to therein (including, without limitation,
the reasonable fees and expenses of Xxxxx & Xxx Xxxxx, special counsel to the
Administrative Agent, and (B) any amendment, waiver or consent relating hereto
and thereto including, but not limited to, any such amendments, waivers or
consents resulting from or related to any work-out, renegotiation or
restructure relating to the performance by the Credit Parties under this
Credit
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Agreement, and (ii) the Administrative Agent and the Lenders in connection with
(A) enforcement of the Credit Documents and the documents and instruments
referred to therein, including, without limitation, in connection with any such
enforcement, the reasonable fees and disbursements of counsel for the
Administrative Agent and each of the Lenders, and (B) any bankruptcy or
insolvency proceeding of a Credit Party of any of its Subsidiaries, and (b)
indemnify the Administrative Agent, NMS and each Lender, its officers,
directors, employees, representatives and agents from and hold each of them
harmless against any and all losses, liabilities, claims, damages or expenses
incurred by any of them as a result of, or arising out of, or in any way
related to, or by reason of, any investigation, litigation or other proceeding
(whether or not the Administrative Agent, NMS or any Lender is a party
thereto) related to (i) the entering into and/or performance of any Credit
Document or the use of proceeds of any Loans (including other extensions of
credit) hereunder or the consummation of any other transactions contemplated
in any Credit Document, including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding (but excluding any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of gross
negligence or willful misconduct on the part of the Person to be indemnified),
(ii) any Environmental Claim and (iii) any claims for Non-Excluded Taxes.
11.6 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document nor any
of the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is
in writing and signed by the Required Lenders and the Credit Parties; provided
that no such amendment, change, waiver, discharge or termination shall without
the consent of each Lender affected thereby:
(a) extend the final maturity of any Loan or any portion
thereof or postpone any other date fixed for any payment of principal
(other than in accordance with Section 3.5(b));
(b) reduce the rate or extend the time of payment of
interest (other than as a result of waiving the applicability of any
post-default increase in interest rates) thereon or fees hereunder;
(c) reduce or waive the principal amount of any Loan;
(d) increase the Commitment of a Lender over the amount
thereof in effect (it being understood and agreed that a waiver of
any Default or Event of Default or a waiver of any mandatory
reduction in the Commitments shall not constitute a change in the
terms of any Commitment of any Lender);
(e) release a Borrower from its obligations, or all or
substantially all of the Guarantors from their obligations, under the
Credit Documents; provided that the Administrative Agent may release
a Guarantor if an equity interest in a Material Subsidiary is
transferred in accordance with Section 8.5 or equity is issued in
accordance with Section 11.20;
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(f) [Intentionally Omitted]
(g) amend, modify or waive any provision of this Section or
Section 3.4(a), 3.4(b), 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14,
5.2, 9.1(a), 11.2, 11.3 or 11.5;
(h) reduce any percentage specified in, or otherwise modify,
the definition of Required Lenders; or
(i) consent to the assignment or transfer by a Borrower of
any of its rights and obligations under (or in respect of) the Credit
Documents.
If any amendment, waiver or consent with respect to the Credit Documents has
been delivered in writing to a Lender by the Administrative Agent, and such
amendment waiver or consent requires only the approval of the Required Lenders
to become effective, then such Lender shall have ten Business Days from the
date of receipt of such amendment, waiver or consent to respond thereto.
Failure of a Lender to timely respond to such amendment, waiver or consent
shall be deemed an approval by such Lender to such amendment, waiver or
consent.
No provision of Section 2.2 may be amended or modified without the consent of
the Issuing Lender. No provision of Section 10 may be amended or modified
without the consent of the Administrative Agent.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote
as such Lender sees fit on any reorganization plan that affects the Loans or
the Letters of Credit, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent
provisions set forth herein and (y) the Required Lenders may consent to allow
a Credit Party to use cash collateral in the context of a bankruptcy or
insolvency proceeding.
11.7 Counterparts/Telecopy.
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. Delivery of executed
counterparts by telecopy shall be as effective as an original and shall
constitute a representation that an original will be delivered.
11.8 Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction
of any provision of this Credit Agreement.
11.9 Defaulting Lender.
Each Lender understands and agrees that if such Lender is a
Defaulting Lender then notwithstanding the provisions of Section 11.6 it shall
not be entitled to vote on any matter requiring the consent of the Required
Lenders or to object to any matter requiring the consent of all
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the Lenders; provided, however, that all other benefits and obligations under
the Credit Documents shall apply to such Defaulting Lender.
11.10 Survival of Indemnification and Representations and Warranties.
All indemnities set forth herein and all representations and
warranties made herein shall survive the execution and delivery of this Credit
Agreement, the making of the Loans, the issuance of the Letters of Credit and
the repayment of the Loans and other obligations and the termination of the
Commitments hereunder.
11.11 Governing Law; Jurisdiction.
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NORTH CAROLINA. Any legal action or proceeding
with respect to this Agreement or any other Credit Document may be
brought in the courts of the State of North Carolina in Mecklenburg
County, or of the United States for the Western District of North
Carolina and, by execution and delivery of this Credit Agreement,
each Credit Party hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the
jurisdiction of such courts. Each Credit Party further irrevocably
consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to it at
the address for notices pursuant to Section 11.1, such service to
become effective 15 days after such mailing. Nothing herein shall
affect the right of a Lender to serve process in any other manner
permitted by law or to commence legal proceedings or to otherwise
proceed against a Credit Party in any other jurisdiction. Each Credit
Party agrees that a final judgment in any action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law; provided that
nothing in this Section 11.11(a) is intended to impair a Credit
Party's right under applicable law to appeal or seek a stay of any
judgment.
(b) Each Credit Party hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in
connection with this Credit Agreement or any other Credit Document
brought in the courts referred to in subsection (a) hereof and hereby
further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such
court has been brought in an inconvenient forum.
11.12 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
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COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11.13 Time.
All references to time herein shall be references to Eastern Standard
Time or Eastern Daylight Time, as the case may be, unless specified otherwise.
11.14 Severability.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.15 Entirety.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.
11.16 Binding Effect.
(a) This Credit Agreement shall become effective at such
time when all of the conditions set forth in Section 5.1 have been
satisfied or waived by the Lenders and it shall have been executed by
the Credit Parties and the Administrative Agent, and the
Administrative Agent shall have received copies hereof (telefaxed or
otherwise) which, when taken together, bear the signatures of each
Lender, and thereafter this Credit Agreement shall be binding upon
and inure to the benefit of the Credit Parties, the Administrative
Agent and each Lender and their respective successors and assigns.
Upon this Credit Agreement becoming effective, the Existing Credit
Agreement and the Existing Bridge Facility shall be deemed terminated
and the Credit Parties and the lenders party to the Existing Credit
Agreement or the Existing Bridge Facility shall no longer have any
obligations thereunder (other than those obligations in the Existing
Credit Agreement and the Existing Bridge Facility that expressly
survive the termination of the Existing Credit Agreement).
(b) This Credit Agreement shall be a continuing agreement
and shall remain in full force and effect until all Loans, interest,
fees and other Obligations have been paid in full and all Commitments
have been terminated. Upon termination, the Credit Parties shall have
no further obligations (other than the indemnification provisions
that survive) under the Credit Documents; provided that should any
payment, in whole or in part, of the Obligations be rescinded or
otherwise required to be restored or returned by the Administrative
Agent or any Lender, whether as a result of any proceedings in
bankruptcy
74
or reorganization or otherwise, then the Credit Documents
shall automatically be reinstated and all amounts required to be
restored or returned and all costs and expenses incurred by the
Administrative Agent or Lender in connection therewith shall be
deemed included as part of the Obligations.
11.17 Confidentiality.
Each Lender agrees that it will use its reasonable best efforts to
keep confidential and to cause any representative designated under Section
7.11 to keep confidential any non-public information from time to time
supplied to it under any Credit Document; provided, however, that nothing
herein shall prevent the disclosure of any such information to (a) the extent
a Lender in good faith believes such disclosure is required by Requirement of
Law, (b) counsel for a Lender or to its accountants, (c) bank examiners or
auditors or comparable Persons, (d) any affiliate of a Lender, (e) any other
Lender, or any assignee, transferee or participant, or any potential assignee,
transferee or participant, of all or any portion of any Lender's rights under
this Agreement who is notified of the confidential nature of the information
or (f) any other Person in connection with any litigation to which any one or
more of the Lenders is a party; and provided further that no Lender shall have
any obligation under this Section 11.17 to the extent any such information
becomes available on a non-confidential basis from a source other than a
Credit Party or that any information becomes publicly available other than by
a breach of this Section 11.17.
11.18 [Intentionally Omitted]
11.19 Further Assurances.
The Credit Parties agree, upon the request of the Administrative
Agent, to promptly take such actions as are necessary to carry out the intent
of this Credit Agreement and the other Credit Documents.
11.20 Release of Guarantors.
If a Guarantor issues equity and as a result thereof such Guarantor
is no longer a Material Subsidiary, then as long as after giving effect to the
issuance of such equity the Credit Parties will be in compliance with Section
7.2(i), the Lenders agree to release such Guarantor from its obligations
hereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
75
Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above
written.
BORROWERS: BRANDYWINE REALTY TRUST,
--------- a Maryland real estate investment trust
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
BRANDYWINE OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
GUARANTORS: LC/N HORSHAM LIMITED PARTNERSHIP, a
---------- Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general
partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
LC/N XXXXX VALLEY LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
XXXXXXX LANSDALE LIMITED PARTNERSHIP III,
a Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P.,
a Delaware limited partnership, its
general partner
By: Brandywine Xxxxxx L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner
NEWTECH III LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P.,
a Delaware limited partnership, its
general partner
By: Brandywine Xxxxxx L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited partnership,
its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner
XXXXXX OPERATING PARTNERSHIP I, L.P., a
Delaware limited partnership
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general
partner
NEWTECH IV LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
C/N OAKLANDS LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
FIFTEEN HORSHAM, L.P., a Pennsylvania limited
partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
C/N LEEDOM LIMITED PARTNERSHIP II, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
C/N IRON RUN LIMITED PARTNERSHIP III, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
C/N OAKLANDS LIMITED PARTNERSHIP III, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
IRON RUN LIMITED PARTNERSHIP V, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE TB I, L.P., a Pennsylvania limited
partnership
By: Brandywine TB I, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE XX XX, L.P., a Pennsylvania limited
partnership
By: Brandywine XX XX, L.L.C., a Pennsylvania
limited liability ompany, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE TB III, L.P., a Pennsylvania limited
partnership
By: Brandywine TB III, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE TB VI, L.P., a Pennsylvania limited
partnership
By: Brandywine TB VI, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general
partner
BRANDYWINE DOMINION, L.P., a Pennsylvania limited
partnership
By: Brandywine Dominion, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general
partner
BRANDYWINE P.M., L.P., a Pennsylvania limited partnership
By: Brandywine P.M., L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general
partner
BRANDYWINE I.S., L.P., a Pennsylvania limited
partnership
By: Brandywine I.S., L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general
partner
BRANDYWINE CENTRAL, L.P., a Pennsylvania
limited partnership
By: Brandywine F.C., L.P., a Pennsylvania limited
partnership, its general partner
By: Brandywine F.C., L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
APPOP 2, L.P., a Delaware limited partnership
By: AAP Sub Three, Inc., a Delaware corporation, one of
its general partners
By: Atlantic American Properties Trust, a Maryland
real estate investment trust, its sole shareholder
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
shareholder
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general
partner
By: AAPOP Umbrella, L.P., a Delaware limited partnership,
one of its general partners
By: AAP Sub Two, Inc., a Delaware corporation, one of
its general partners
By: Atlantic American Properties Trust, a Maryland
real estate investment trust, its sole
shareholder
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
shareholder
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: Atlantic American Properties Trust, a Maryland
real estate investment trust, one of its general
partners
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
shareholder
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general
partner
BRANDYWINE F.C., L.P., a Pennsylvania
limited partnership
By: Brandywine F.C., L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general
partner
BRANDYWINE REALTY PARTNERS, a Pennsylvania
general partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, one of its
partners
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
BRANDYWINE ACQUISITIONS, LLC, a
Delaware limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE MAIN STREET, LLC, a
Delaware limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, one of its members
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
By: Brandywine Acquisitions, LLC, a Delaware limited
liability company, one of its members
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general
partner
1100 BRANDYWINE, LLC, a Delaware limited liability
company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE LEASING, LLC, a Delaware limited
liability company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE TB I, L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE XX XX, L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE TB III, L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE TB VI, L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE XXXXXX, L.L.C., a Pennsylvania
limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE DOMINION, L.L.C., a Pennsylvania
limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE P.M., L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE I.S., L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE F.C., L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE TRENTON URBAN RENEWAL, L.L.C., a Delaware
limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE XXXXXX, L.L.C., a Delaware limited
liability company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE XXXXX I, LLC, a Delaware limited
liability company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE XXXXX II, LLC, a Delaware limited
liability company
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
APP SUB THREE, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer of
each of the above-named entities
LENDERS:
NATIONSBANC MORTGAGE CAPITAL CORP.,
acting in its capacity as Administrative Agent
and individually as a Lender
By: /s/ NationsBanc Mortgage Capital Corp.
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Title:
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