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EXHIBIT 4.22
UNSECURED REVOLVING CREDIT AGREEMENT
DATED AS OF DECEMBER 15, 1997
AMONG
FIRST INDUSTRIAL, L.P., AS BORROWER
FIRST INDUSTRIAL REALTY TRUST, INC., AS GENERAL PARTNER
AND
THE FIRST NATIONAL BANK OF CHICAGO,
UNION BANK OF SWITZERLAND, NEW YORK BRANCH
AND CERTAIN OTHER BANKS,
AS LENDERS
AND
UNION BANK OF SWITZERLAND, NEW YORK BRANCH,
AS DOCUMENTATION AGENT
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS ADMINISTRATIVE AGENT
AND
BANK OF MONTREAL,
AS CO-AGENT
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UNSECURED REVOLVING CREDIT AGREEMENT
THIS UNSECURED REVOLVING CREDIT AGREEMENT is entered into as of December
15, 1997, by and among the following:
FIRST INDUSTRIAL, L.P., a Delaware limited partnership having its
principal place of business at 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000 ("Borrower"), the sole general partner of which is First
Industrial Realty Trust, Inc., a Maryland corporation;
FIRST INDUSTRIAL REALTY TRUST, INC., a Maryland corporation that is
qualified as a real estate investment trust whose principal place of business
is 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 ("General
Partner");
THE FIRST NATIONAL BANK OF CHICAGO ("First Chicago"), a national bank
organized under the laws of the United States of America having an office at
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000;
UNION BANK OF SWITZERLAND, NEW YORK BRANCH ("UBS"), the New York Branch
of a Swiss banking corporation, having an office at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000;
UBS, as Documentation Agent ("Documentation Agent");
First Chicago, as Administrative Agent ("Administrative Agent") for the
Lenders (as defined below); and
Those Lenders identified on the signature pages hereto.
RECITALS
A. Borrower is primarily engaged in the business of acquiring,
developing, owning and operating bulk warehouse and light industrial
properties.
B. Borrower, the General Partner, the Documentation Agent, the
Administrative Agent and certain of the lenders are parties to the "Existing
Credit Agreement" (as defined below).
C. The Borrower has requested that the Existing Credit Agreement be
replaced to increase the maximum aggregate principal amount thereof to
$300,000,000 (the "Facility"), and that the Administrative Agent act as
administrative agent for the Lenders and that the
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Documentation Agent act as documentation agent for the Lenders. The
Administrative Agent, the Documentation Agent and the Lenders have agreed to do
so.
D. General Partner is fully liable for the obligations of Borrower
hereunder by virtue of its status as the sole general partner of Borrower and
as guarantor under the Guaranty.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions. As used in this Agreement, the following terms
have the meanings set forth below:
"Absolute Interest Period" means, with respect to a Competitive Bid Loan
made at an Absolute Rate, a period of up to 180 days as requested by Borrower
in a Competitive Bid Quote Request and confirmed by a Lender in a Competitive
Bid Quote but in no event extending beyond the Maturity Date. If an Absolute
Interest Period would end on a day which is not a Business Day, such Absolute
Interest Period shall end on the next succeeding Business Day.
"Absolute Rate" means a fixed rate of interest (rounded to the nearest
1/100 of 1%) for an Absolute Interest Period with respect to a Competitive Bid
Loan offered by a Lender and accepted by the Borrower at such rate under
Section 2.16.
"Adjusted Corporate Base Rate" means a floating interest rate equal to
the Corporate Base Rate plus CBR Applicable Margin changing when and as the
Corporate Base Rate and CBR Applicable Margin changes.
"Adjusted Corporate Base Rate Advance" means an Advance that bears
interest at the Adjusted Corporate Base Rate.
"Adjusted EBITDA" means for any Person the sum of EBITDA for such Person
and such Person's reported corporate overhead for itself and its Subsidiaries;
provided that "Adjusted EBITDA" shall not include overhead related to specific
properties.
"Adjusted LIBOR Rate" means, with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, the sum of (i) the quotient of (a) the Base
LIBOR Rate applicable to such LIBOR Interest Period, divided by (b) one minus
the Reserve Requirement (expressed as a decimal) applicable to such LIBOR
Interest Period, plus, in the case of ratable LIBOR
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Advances, the LIBOR Applicable Margin in effect from time to time during such
LIBOR Interest Period, or in the case of LIBOR Advances made as Competitive Bid
Loans, the Competitive LIBOR Margin established in the Competitive Bid Quote
applicable to such Competitive Bid Loan.
"Administrative Agent" means First Chicago, acting as agent for the
Lenders in connection with the transactions contemplated by this Agreement, and
its successors in such capacity.
"Advance" means a Loan to the Borrower hereunder by one or more of the
Lenders pursuant to Section 2.1(a) hereof (including Swingline Loans and
Competitive Bid Loans), including the initial Advance and all subsequent
Advances, whether such Advances are from time to time, Adjusted Corporate Base
Rate Advances, LIBOR Advances, Swingline Loans or Competitive Bid Loans.
"Affiliate" means any Person directly or indirectly controlling,
controlled by or under direct or indirect common control with any other Person.
A Person shall be deemed to control another Person if the controlling Person
owns ten percent (10%) or more of any class of voting securities of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means, as of any date, the sum of all of the
Lenders' then-current Commitments, which initially shall be $300,000,000,
subject to Borrower's right to reduce the Aggregate Commitment pursuant to
Section 2.17 and which shall otherwise only be increased with the consent of
all Lenders.
"Agreement" means this Amended and Restated Unsecured Revolving Credit
Agreement and all amendments, modifications and supplements hereto.
"Agreement Execution Date" shall mean December 15, 1997, the date on
which all of the parties hereto have executed this Agreement.
"Allocated Facility Amount" means, at any time, the sum of all then
outstanding Advances (including all Swingline Loans and Competitive Bid Loans),
and the then outstanding Facility Letter of Credit Obligations.
"Applicable Margin" means the applicable margins set forth in the table
in Section 2.6 used in calculating the interest rate applicable to the various
types of Advances, which shall vary from time to time in accordance with the
long term, senior unsecured debt ratings of Borrower and General Partner in the
manner set forth in Section 2.6.
"Arranger" means First Chicago Capital Markets, Inc. and UBS,
collectively.
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"Base LIBOR Rate" means, with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, the rate determined by the Administrative Agent
to be the rate at which deposits in immediately available funds in Dollars are
offered by the Administrative Agent to first-class banks in the London
interbank eurodollar market at approximately 11:00 a.m. London time two
Business Days prior to the first day of such LIBOR Interest Period, in the
approximate amount of the relevant LIBOR Advance and having a maturity
approximately equal to such LIBOR Interest Period.
"Borrower" means First Industrial, L.P., along with its permitted
successors and assigns.
"Borrowing Date" means a Business Day on which an Advance is made to the
Borrower.
"Borrowing Notice" is defined in Section 2.10(a) hereof.
"Business Day" means a day, other than a Saturday, Sunday or holiday, on
which banks are open for business in Chicago, Illinois and, where such term is
used in reference to the selection or determination of the Adjusted LIBOR Rate,
in London, England.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person which is not a corporation
and any and all warrants or options to purchase any of the foregoing.
"Cash Equivalents" shall mean (i) short-term obligations of, or fully
guaranteed by, the United States of America, (ii) commercial paper rated A-1 or
better by Standard and Poor's Corporation or P-1 or better by Xxxxx'x Investors
Service, Inc., or (iii) certificates of deposit issued by and time deposits
with commercial banks (whether domestic or foreign) having capital and surplus
in excess of $100,000,000.
"CBR Applicable Margin" means, as of any date with respect to any
Adjusted Corporate Base Rate Advance, the Applicable Margin in effect for such
Adjusted Corporate Base Rate Advance as determined in accordance with Section
2.6 hereof.
"Code" means the Internal Revenue Code of 1986 as amended from time to
time, or any replacement or successor statute, and the regulations promulgated
thereunder from time to time.
"Collateral Letter of Credit" means any irrevocable unconditional Letter
of Credit issued in the name of the Administrative Agent for the benefit of the
Lenders in form and substance satisfactory to the Administrative Agent and
drawn on a bank having a rating of at least AA by S&P and otherwise
satisfactory to the Administrative Agent.
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"Commitment" means the obligation of each Lender, subject to the terms
and conditions of this Agreement and in reliance upon the representations and
warranties herein, to make Advances not exceeding in the aggregate the amount
set forth opposite its signature below, or the amount stated in any subsequent
amendment hereto.
"Competitive Bid Borrowing Notice" is defined in Section 2.16(f).
"Competitive Bid Lender" means a Lender which has a Competitive Bid Loan
outstanding.
"Competitive Bid Loan" is a Loan made pursuant to Section 2.16 hereof.
"Competitive Bid Note" means the promissory note payable to the order of
each Lender in the form attached hereto as Exhibit B-2 to be used to evidence
any Competitive Bid Loans which such Lender elects to make (collectively, the
"Competitive Bid Notes").
"Competitive Bid Quote" means a response submitted by a Lender to the
Administrative Agent with respect to a Competitive Bid Quote Request in the
form attached as Exhibit C-3.
"Competitive Bid Quote Request" means a written request from Borrower to
Administrative Agent in the form attached as Exhibit C-1.
"Competitive LIBOR Margin" means, with respect to any Competitive Bid
Loan for a LIBOR Interest Period, the percentage established in the applicable
Competitive Bid Quote which is to be used to determine the interest rate
applicable to such Competitive Bid Loan.
"Consolidated Operating Partnership" means the Borrower, the General
Partner and any other subsidiary partnerships or entities of either of them
which are required under GAAP to be consolidated with the Borrower and the
General Partner for financial reporting purposes.
"Consolidated Secured Debt" means as of any date of determination, the
sum of (a) the aggregate principal amount of all Indebtedness of the
Consolidated Operating Partnership outstanding at such date which is secured by
a Lien on any asset or Capital Stock of Consolidated Operating Partnership,
including without limitation loans secured by mortgages, stock, or partnership
interests, but excluding Defeased REMIC Debt, and the Senior Preferred Stock so
long as the PS Guaranty is outstanding and (b) the amount by which the
aggregate principal amount of all Indebtedness of the Subsidiaries of the
Borrower or General Partner outstanding at such date exceeds $5,000,000,
without duplication of any Indebtedness included under clause (a).
"Consolidated Senior Unsecured Debt" means as of any date of
determination, the aggregate principal amount of all Indebtedness of the
Consolidated Operating Partnership outstanding at such date other than (a)
Indebtedness which is contractually subordinated to the
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Indebtedness of the Consolidated Operating Partnership under the Loan Documents
on terms acceptable to the Administrative Agent and (b) that portion of
Consolidated Secured Debt described in clause (a) of that definition.
"Consolidated Total Indebtedness" means as of any date of determination,
all Indebtedness of the Consolidated Operating Partnership outstanding at such
date, determined on a consolidated basis in accordance with GAAP, after
eliminating intercompany items; provided that for purposes of defining
"Consolidated Total Indebtedness" the term "Indebtedness" shall not include the
short term debt (e.g. accounts payable, short term expenses) of Borrower or
General Partner or Defeased REMIC Debt.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with all or any of the entities in the
Consolidated Operating Partnership, are treated as a single employer under
Sections 414(b) or 414(c) of the Code.
"Corporate Base Rate" means a rate per annum equal to the corporate base
rate of interest announced by First Chicago from time to time, changing when
and as such corporate base rate changes.
"Debt Service" means for any period, (a) Interest Expense for such
period plus (b) the aggregate amount of regularly scheduled principal payments
of Indebtedness (excluding optional prepayments and balloon principal payments
due on maturity in respect of any Indebtedness) required to be made during such
period by the Borrower, or any of its consolidated Subsidiaries plus (c) a
percentage of all such regularly scheduled principal payments required to be
made during such period by any Investment Affiliate on Indebtedness (excluding
optional prepayments and balloon principal payments due on maturity in respect
of any Indebtedness) taken into account in calculating Interest Expense, equal
to the greater of (x) the percentage of the principal amount of such
Indebtedness for which the Borrower or any consolidated Subsidiary is liable
and (y) the percentage ownership interest in such Investment Affiliate held by
the Borrower and any consolidated Subsidiaries, in the aggregate, without
duplication plus (d) Senior Preferred Stock Expense of the General Partner for
such period.
"Default" means an event which, with notice or lapse of time or both,
would become an Event of Default.
"Default Rate" means with respect to any Advance, a rate equal to the
interest rate applicable to such Advance plus three percent (3%) per annum.
"Defaulting Lender" means any Lender which fails or refuses to perform
its obligations under this Agreement within the time period specified for
performance of such obligation, or, if no time frame is specified, if such
failure or refusal continues for a period of five Business
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Days after written notice from the Administrative Agent; provided that if such
Lender cures such failure or refusal, such Lender shall cease to be a
Defaulting Lender.
"Defeased REMIC Debt" means the REMIC Loan, which Borrower has taken
steps to defease by depositing collateral in the form of obligations supported
by the credit of the United States government in the full amount required under
the terms of the REMIC Loan.
"Designated Lender" means any Person who has been designated by a Lender
to fund Competitive Bid Loans pursuant to a Designation Agreement in the form
attached hereto as Exhibit K.
"Dollars" and "$" mean United States Dollars.
"Duff & Xxxxxx" means Duff & Xxxxxx Credit Rating Company.
"EBITDA" means, with respect to any Person, income before extraordinary
items and after adjustment for any gains or losses from sales of assets
(reduced to eliminate any income from Investment Affiliates of such Person, any
interest income and, with respect to the Consolidated Operating Partnership,
any income from the assets used for Defeased REMIC Debt), as reported by such
Person and its Subsidiaries on a consolidated basis in accordance with GAAP,
plus Interest Expense, depreciation, amortization and income tax (if any)
expense plus a percentage of such income (adjusted as described above) of any
such Investment Affiliate equal to the allocable economic interest in such
Investment Affiliate held by such Person and any Subsidiaries, in the aggregate
(provided that no item of income or expense shall be included more than once in
such calculation even if it falls within more than one of the foregoing
categories).
"Effective Date" means each Borrowing Date and, if no Borrowing Date has
occurred in the preceding calendar month, the first Business Day of each
calendar month.
"Environmental Laws" means any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority having jurisdiction over
the Borrower, its Subsidiaries or Investment Affiliates, or their respective
assets, and regulating or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any time
hereafter be in effect, in each case to the extent the foregoing are applicable
to the operations of the Borrower, any Investment Affiliate, or any Subsidiary
or any of their respective assets or Properties.
"Equity Value" is defined in Section 10.10 hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and regulations promulgated thereunder from time to time.
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"Event of Default" means any event set forth in Article X hereof.
"Existing Credit Agreement" means that certain Unsecured Revolving
Credit Agreement dated as of December 16, 1996 as amended by that certain First
Amendment to the Unsecured Revolving Credit Agreement dated as of March 3,
1997.
"Extension Notice" is defined in Section 2.2 hereof.
"Facility" means the unsecured revolving credit facility described in
Section 2.1.
"Facility Fee" and "Facility Fee Rate" are defined in Section 2.7(b).
"Facility Letter of Credit" means a Financial Letter of Credit or
Performance Letter of Credit issued hereunder.
"Facility Letter of Credit Fee" is defined in Section 3.8.
"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of the
Borrower with respect to Facility Letters of Credit, including the sum of (a)
the Reimbursement Obligations and (b) the aggregate undrawn face amount of the
then outstanding Facility Letters of Credit.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations at approximately 10 a.m.
(Chicago time) on such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"FIMC" means First Industrial Mortgage Corporation, a Delaware
corporation, and the sole general partner of the Mortgage Partnership. FIMC is
a wholly-owned subsidiary of the General Partner.
"Financial Letter of Credit" means any standby Letter of Credit which
represents an irrevocable obligation to the beneficiary on the part of the
Issuing Bank (i) to repay money borrowed by or advanced to or for the account
of the account party or (ii) to make any payment on account of any indebtedness
undertaken by the account party, in the event the account party fails to
fulfill its obligation to the beneficiary.
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"Financing Partnership" means First Industrial Financing Partnership,
L.P., a Delaware limited partnership. Borrower and General Partner, either
directly or indirectly, collectively own 100% of the partnership interests of
the Financing Partnership.
"First Chicago" means The First National Bank of Chicago.
"FISC" means First Industrial Securities Corporation, a Delaware
corporation, and the sole general partner of the Guaranteeing Partnership.
FISC is a wholly-owned subsidiary of the General Partner.
"Fitch" means Fitch Investors Service, L.P.
"Funded Percentage" means, with respect to any Lender at any time, a
percentage equal to a fraction the numerator of which is the amount of the
Aggregate Commitment actually disbursed and outstanding to Borrower by such
Lender at such time, and the denominator of which is the total amount of the
Aggregate Commitment disbursed and outstanding to Borrower by all of the
Lenders at such time.
"Funds From Operations" for any period means GAAP net income, as
adjusted by (i) excluding gains and losses from property sales, debt
restructurings and property write-downs and adjusted for the non-cash effect of
straight-lining of rents, (ii) straight-lining various ordinary operating
expenses which are payable less frequently than monthly (e.g., real estate
taxes) and (iii) adding back depreciation, amortization and all non-cash items.
Annualized Funds From Operations for any Person will be calculated by
annualizing actual Funds From Operations for the most recently ended fiscal
quarter. In calculating Funds From Operations, no deduction shall be made from
net income for closing costs and other one-time charges associated with the
formation and capitalization of such Person.
"GAAP" means generally accepted accounting principles in the United
States of America consistent with those utilized in preparing the audited
financial statements of the Borrower required hereunder.
"General Partner" means First Industrial Realty Trust, Inc., a Maryland
corporation that is listed on the New York Stock Exchange and is qualified as a
real estate investment trust. General Partner is the sole general partner of
Borrower.
"Gross Revenues" means total revenues, calculated in accordance with
GAAP.
"Guarantee Obligation" means as to any Person (the "guaranteeing
person"), any obligation (determined without duplication) of (a) the
guaranteeing person or (b) another Person (including, without limitation, any
bank under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counter indemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness,
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leases, dividends or other obligations (the "primary obligations") of any other
third Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of the guaranteeing
person, whether or not contingent, (i) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the maximum stated
amount of the primary obligation relating to such Guarantee Obligation (or, if
less, the maximum stated liability set forth in the instrument embodying such
Guarantee Obligation), provided, that in the absence of any such stated amount
or stated liability, the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
"Guaranteeing Partnership" means First Industrial Securities L.P., a
Delaware limited partnership. FISC is the sole general partner of the
Guaranteeing Partnership and Borrower is the sole limited partner.
"Guaranty" means the Guaranty executed by the General Partner in the form
attached hereto as Exhibit D.
"Implied Capitalization Value" means for any Person for any quarter, the
sum of (i) the quotient of (x) the Adjusted EBITDA for such Person during such
quarter (which Adjusted EBITDA shall be annualized as described in the
definition of "Funds From Operations", but shall exclude any Adjusted EBITDA
attributable to Preleased Assets Under Development), and (y) the then most
recent "Average Residual Cap Rate for National Industrial Markets", as
published in the Korpacz Real Estate Investor Survey, plus (ii) an amount equal
to fifty percent (50%) of the value of all Preleased Assets Under Development,
provided that in no event shall the aggregate amount added to Implied
Capitalization Value pursuant to this clause (ii) exceed the lesser of (A) five
percent (5%) of the Implied Capitalization Value or (B) $100,000,000, plus
(iii) an amount equal to 100% of unrestricted cash and unrestricted cash
equivalents (specifically excluding any cash or cash equivalents being used to
support Defeased REMIC Debt), plus (iv) an amount equal to 100% of the
then-current book value, determined in accordance with GAAP, of all first
mortgage receivables on income producing commercial properties, provided that
in no event shall the aggregate amount added to Implied Capitalization Value
pursuant to this clause (iv) exceed ten percent (10%) of Implied Capitalization
Value. For purposes of computing the Implied Capitalization Value, (A)
Adjusted EBITDA may be increased from quarter to quarter by the amount of net
cash
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flow from new leases of space at the Properties approved by Administrative
Agent (where such net cash flow has not then been included in EBITDA) which
have a minimum term of one year and (B) Properties which either (i) were
acquired during the quarter and/or (ii) were previously assets under
development under GAAP but which have been completed during the quarter and
have at least some tenants in possession of the respective leased spaces and
conducting business operations therein each will be included in the calculation
of Implied Capitalization Value using Pro Forma EBITDA for the quarter, so long
as a "new acquisition/opening summary" form is submitted to, and approved by,
Administrative Agent for each new acquisition or newly-opened Property during
such quarter. In no event shall the "Average Residual Cap Rate for Industrial
Markets" used to calculate the Implied Capitalization Value be less than 9% or
greater than 9.5%.
"Indebtedness" of any Person at any date means without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade liabilities and other accounts payable, and accrued expenses
incurred in the ordinary course of business and payable in accordance with
customary practices), to the extent such obligations constitute indebtedness
for the purposes of GAAP, (c) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (d) all obligations
of such Person under financing leases and capital leases, (e) all obligations
of such Person in respect of acceptances issued or created for the account of
such Person, (f) all Guarantee Obligations of such Person (excluding in any
calculation of consolidated indebtedness of the Consolidated Operating
Partnership, Guarantee Obligations of any member of the Consolidated Operating
Partnership in respect of primary obligations of any other member of the
Consolidated Operating Partnership), (g) all reimbursement obligations of such
Person for letters of credit and other contingent liabilities, (h) all
liabilities secured by any Lien (other than Liens for taxes not yet due and
payable) on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof, (i) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to accounts or notes receivable sold by such Person or any of its Subsidiaries,
(j) Senior Preferred Stock, and (k) such Person's pro rata share of debt in
Investment Affiliates and any loans where such Person is liable as a general
partner. The liquidation preference of the Senior Preferred Stock will be
considered as Indebtedness and Consolidated Total Indebtedness, provided,
however, that the obligations of the General Partner created by the issuance of
Senior Preferred Stock and the obligations of the Guaranteeing Partnership
created by the execution and delivery of the PS Guaranty shall be deemed to
constitute a single, combined liability on a consolidated basis.
"Insolvency" means insolvency as defined in the United States Bankruptcy
Code, as amended. "Insolvent" when used with respect to a Person, shall refer
to a Person who satisfies the definition of Insolvency.
"Interest Expense" means all interest expense of the Consolidated
Operating Partnership determined in accordance with GAAP plus (i) capitalized
interest not covered by an interest
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reserve from a loan facility, plus (ii) the allocable portion (based on
liability) of any accrued or paid interest incurred on any obligation for which
the Consolidated Operating Partnership is wholly or partially liable under
repayment, interest carry, or performance guarantees, or other relevant
liabilities, plus (iii) the allocable percentage of any accrued or paid
interest incurred on any Indebtedness of any Investment Affiliate, whether
recourse or non-recourse, equal to the applicable economic interest in such
Investment Affiliate held by the Consolidated Operating Partnership, in the
aggregate, provided that no expense shall be included more than once in such
calculation even if it falls within more than one of the foregoing categories;
provided, however, that "Interest Expense" shall not include (i) those costs
and fees which have been capitalized and are payable by Borrower and/or the
Financing Partnership by reason of the purchase of a $300,000,000 interest rate
cap/swap from Union Bank of Switzerland in connection with the REMIC Loan or
(ii) dividends paid on Senior Preferred Stock or payments made pursuant to the
PS Guaranty or (iii) interest on the REMIC Loan after it became Defeased REMIC
Debt.
"Interest Period" means either an Absolute Interest Period or a LIBOR
Interest Period.
"Investment Affiliate" means any Person in which the Consolidated
Operating Partnership, directly or indirectly, has an ownership interest, whose
financial results are not consolidated under GAAP with the financial results of
the Consolidated Operating Partnership on the consolidated financial statements
of the Consolidated Operating Partnership.
"Invitation for Competitive Bid Quotes" means a written notice to the
Lenders from the Administrative Agent with respect to a Competitive Bid Quote
Request in the form attached as Exhibit C-2 hereto.
"Issuance Date" is defined in Section 3.4(a)(3).
"Issuance Notice" is defined in Section 3.4(c).
"Issuing Bank" means, with respect to each Facility Letter of Credit,
the Lender which issues such Facility Letter of Credit. First Chicago shall be
the sole Issuing Bank.
"Lenders" means, collectively, First Chicago, UBS and the other Persons
executing this Agreement in such capacity, or any Person which subsequently
executes and delivers any amendment hereto in such capacity and each of their
respective permitted successors and assigns. Where reference is made to "the
Lenders" in any Loan Document it shall be read to mean "all of the Lenders".
"Lending Installation" means any U.S. office of any Lender authorized to
make loans similar to the Advances described herein.
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"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 3.9.
"Letter of Credit Request" is defined in Section 3.4(a).
"LIBOR Advance" means an Advance that bears interest at the Adjusted
LIBOR Rate, whether a ratable Advance based on the LIBOR Applicable Margin or a
Competitive Bid Loan based on a Competitive LIBOR Margin.
"LIBOR Applicable Margin" means, as of any date with respect to any
LIBOR Advance, the Applicable Margin in effect for such LIBOR Advance as
determined in accordance with Section 2.6 hereof.
"LIBOR Interest Period" means, with respect to a LIBOR Advance, a period
of one, two, three or six months (to the extent that periods in excess of three
months are generally available from the Lenders), as selected in advance by the
Borrower.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including, without limitation, any conditional sale or
other title retention agreement or lease in the nature thereof, any filing or
agreement to file a financing statement as debtor under the Uniform Commercial
Code on any property leased to any Person under a lease which is not in the
nature of a conditional sale or title retention agreement, or any subordination
agreement in favor of another Person).
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance.
"Loan Documents" means this Agreement, the Notes, the Guaranty and any
and all other agreements or instruments required and/or provided to Lenders
hereunder or thereunder, as any of the foregoing may be amended from time to
time.
"Majority Lenders" means Lenders in the aggregate having in excess of
50% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding in excess of 50% of the aggregate
unpaid principal amount of the outstanding Advances.
"Margin Stock" has the meaning ascribed to it in Regulation U of the
Board of Governors of the Federal Reserve System.
"Market Value Net Worth" means at any time, the Implied Capitalization
Value of a Person at such time minus the Indebtedness of such Person at such
time.
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"Material Adverse Effect" means, with respect to any matter, that such
matter in the Supermajority Lenders' good faith judgment may (x) materially and
adversely affect the business, properties, condition or results of operations
of the Consolidated Operating Partnership taken as a whole, or (y) constitute a
non-frivolous challenge to the validity or enforceability of any material
provision of any Loan Document against any obligor party thereto.
"Material Adverse Financial Change" shall be deemed to have occurred if
the Supermajority Lenders, in their good faith judgment, determine that a
material adverse financial change has occurred which could prevent timely
repayment of any Advance hereunder or materially impair Borrower's ability to
perform its obligations under any of the Loan Documents.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation,
asbestos, radon, polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" means April 30, 2001, subject to extension pursuant to
the terms and conditions of Section 2.2 hereof or such earlier date on which
the principal balance of the Facility and all other sums due in connection with
the Facility shall be due as a result of the acceleration of the Facility.
"Monetary Default" means any Default involving Borrower's failure to pay
any of the Obligations when due.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Mortgage Partnership" means First Industrial Mortgage L.P., a Delaware
limited partnership. FIMC is the sole general partner of the Mortgage
Partnership and Borrower is the sole limited partner.
"Note" means the promissory note payable to the order of each Lender in
the amount of such Lender's maximum Commitment in the form attached hereto as
Exhibit B-1 (collectively, the "Notes").
"Obligations" means the Advances, the Facility Letter of Credit
Obligations and all accrued and unpaid fees and all other obligations of
Borrower to the Administrative Agent or any or all of the Lenders arising under
this Agreement or any of the other Loan Documents.
"Payment Date" means the last Business Day of each calendar quarter.
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"Participants" is defined in Section 13.2.1 hereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Percentage" means, with respect to each Lender, the applicable
percentage of the then-current Aggregate Commitment represented by such
Lender's then-current Commitment.
"Performance Letter of Credit" means any standby Letter of Credit which
represents an irrevocable obligation to the beneficiary on the part of the
Issuing Bank to make payment on account of any default by the account party in
the performance of a nonfinancial or commercial obligation.
"Permitted Liens" are defined in Section 9.6 hereof.
"Person" means an individual, a corporation, a limited or general
partnership, an association, a joint venture or any other entity or
organization, including a governmental or political subdivision or an agent or
instrumentality thereof.
"Plan" means an employee benefit plan as defined in Section 3(3) of
ERISA, whether or not terminated, as to which the Borrower or any member of the
Controlled Group may have any liability.
"Preleased Assets Under Development" means, as of any date of
determination, any Project which (i) is under construction and then treated as
an asset under development under GAAP, and (ii) has, as of such date, at least
fifty percent (50%) of its projected total rentable area leased at market rates
to third party tenants similar to those at Borrower's other properties, both
such land and improvements under construction to be valued for purposes of this
Agreement at then-current book value, as determined in accordance with GAAP;
provided, however, in no event shall Preleased Assets Under Development include
any Project for more than 270 days from the date such Project is initially so
designated under GAAP.
"Project" means any real estate asset owned by the Borrower or by any
Wholly-Owned Subsidiary and operated as a bulk warehouse or light industrial
property.
"Property" means each parcel of real property owned or operated by the
Borrower, any Subsidiary or Investment Affiliate.
"Property Operating Income" means, with respect to any Property, for any
period, earnings from rental operations (computed in accordance with GAAP but
without deduction for reserves) attributable to such Property plus
depreciation, amortization and interest expense with respect to such Property
for such period, and, if such period is less than a year, adjusted by straight
lining various ordinary operating expenses which are payable less frequently
than
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once during every such period (e.g. real estate taxes and insurance). The
earnings from rental operations reported for the immediately preceding fiscal
quarter shall be adjusted to include pro forma earnings (as substantiated to
the satisfaction of the Administrative Agent) for an entire quarter for any
Property acquired or placed in service during such fiscal quarter and to
exclude earnings during such quarter from any property not owned as of the end
of the quarter.
"PS Guaranty" means the existing guaranty of Senior Preferred Stock by
the Guaranteeing Partnership.
"Purchasers" is defined in Section 13.3.1 hereof.
"Qualified Officer" means, with respect to any entity, the chief
financial officer, chief accounting officer or controller of such entity if it
is a corporation or of such entity's general partner if it is a partnership.
"Rate Option" means the Adjusted Corporate Base Rate, the Adjusted LIBOR
Rate or the Absolute Rate (only as applicable to Competitive Bid Loans). The
Rate Option in effect on any date shall always be the Adjusted Corporate Base
Rate unless the Borrower has properly selected the Adjusted LIBOR Rate pursuant
to Section 2.10 hereof or a Competitive Bid Loan pursuant to Section 2.16
hereof.
"Rating Period" means any period during the term of the Facility during
which the Borrower's or General Partner's long-term, senior unsecured debt has
been rated by at least two of S&P, Xxxxx'x, Fitch and Xxxx & Xxxxxx and the
lower of the highest two ratings (at least one of which is from S&P or Xxxxx'x)
is at least BBB- (S&P) or Baa3 (Moody's) or an equivalent rating from Fitch or
Duff & Xxxxxx.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to reserve requirements applicable to member banks of the Federal Reserve
System.
"Reimbursement Obligations" means at any time, the aggregate of the
Obligations of the Borrower to the Lenders, the Issuing Bank and the
Administrative Agent in respect of all unreimbursed payments or disbursements
made by the Lenders, the Issuing Bank and the Administrative Agent under or in
respect of the Facility Letters of Credit.
"REMIC Loan" means the $300,000,000 mortgage loan made by Nomura Asset
Capital Corporation ("REMIC Lender") to Financing Partnership pursuant to the
terms of a Loan Agreement dated as of June 30, 1994 ("REMIC Loan Agreement").
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such
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events as to which the PBGC by regulation waived the requirement of Section
4043(a) of ERISA that it be notified within 30 days of the occurrence of such
event, provided that a failure to meet the minimum funding standard of Section
412 of the Code and of Section 302 of ERISA shall be a Reportable Event
regardless of the issuance of any such waivers in accordance with either
Section 4043(a) of ERISA or Section 412(d) of the Code.
"Reserve Requirement" means, with respect to a LIBOR Interest Period,
the maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
Eurocurrency liabilities.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Second REMIC Loan" means the up to $42,600,000 mortgage loan made by
REMIC Lender to Mortgage Partnership pursuant to the terms of a Loan Agreement
dated as of December 29, 1995 (the "Second REMIC Loan Agreement") of which only
$40,200,000 was actually funded.
"Senior Preferred Stock" means for any Person, any preferred stock
issued by such Person which is not typical preferred stock but instead is both
(i) redeemable by the holders thereof on any fixed date or upon the occurrence
of any event and (ii) as to payment of dividends or amounts on liquidation,
either guaranteed by any direct or indirect subsidiary of such Person or
secured by any property of such Person or any direct or indirect subsidiary of
such Person.
"Senior Preferred Stock Expense" means for any period for any Person,
the aggregate dividend payments due to the holders of Senior Preferred Stock of
such Person, whether payable in cash or in kind, and whether or not actually
paid during such period.
"Supermajority Lenders" means, as of any date, those Lenders holding, in
the aggregate, more than two-thirds (2/3) of the then-current Aggregate
Commitment or, if the Aggregate Commitment has been terminated, Lenders
holding, in the aggregate, more than two-thirds (2/3) of the aggregate unpaid
principal amount of the outstanding Advances.
"Subsidiary" means as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person, and provided such corporation, partnership or other entity is
consolidated with such Person for financial reporting purposes under GAAP.
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"Swingline Advances" means, as of any date, collectively, all Swingline
Loans then outstanding under this Facility.
"Swingline Commitment" means the obligation of the Swingline Lender to
make Swingline Loans not exceeding $20,000,000.
"Swingline Lender" shall mean First Chicago, in its capacity as a
Lender.
"Swingline Loan" means a Loan made by the Swingline Lender under the
special availability provisions described in Sections 2.15 hereof.
"Total Liabilities" means all Indebtedness plus all other GAAP
liabilities of the Borrower and its Subsidiaries.
"Transferee" is defined in Section 13.4 hereof.
"Unencumbered Asset" means any Project which as of any date of
determination, (a) is not subject to any Liens other than Permitted Liens set
forth in Sections 9.6(i) through 9.6(v), (b) is not subject to any agreement
(including any agreement governing Indebtedness incurred in order to finance or
refinance the acquisition of such asset) which prohibits or limits the ability
of the Borrower, or its Wholly-Owned Subsidiaries, as the case may be, to
create, incur, assume or suffer to exist any Lien upon any assets or Capital
Stock of the Borrower, or any of its Wholly-Owned Subsidiaries, (c) is not
subject to any agreement (including any agreement governing Indebtedness
incurred in order to finance or refinance the acquisition of such asset) which
entitles any Person to the benefit of any Lien (but not subject to any Liens
other than Permitted Liens set forth in Sections 9.6(i) through 9.6(v) on any
assets or Capital Stock of the Borrower or any of its Wholly-Owned Subsidiaries
or would entitle any Person to the benefit of any Lien (but excluding the
Permitted Liens set forth in Sections 9.6(i) through 9.6(v) on such assets or
Capital Stock upon the occurrence of any contingency (including, without
limitation, pursuant to an "equal and ratable" clause), (d) is not the subject
of any material architectural/engineering issue, as evidenced by a
certification of Borrower, and (e) is materially compliant with the
representations and warranties in Article VI below. Notwithstanding the
foregoing, if any Project is a "Superfund" site under federal law or a site
identified in writing by the jurisdiction in which such Project is located as
having significant environmental contamination under applicable state law,
Borrower shall so advise the Lenders in writing and the Majority Lenders shall
have the right to request from Borrower a current detailed environmental
assessment (or one which is not more than two years old for Unencumbered Assets
owned as of the Agreement Execution Date), and, if applicable, a written
estimate of any remediation costs from a recognized environmental contractor
and to exclude any such Project from Unencumbered Assets at their election. No
Project of a Wholly-Owned Subsidiary shall be deemed to be unencumbered unless
both such Project and all Capital Stock of such Wholly-Owned Subsidiary is
unencumbered and neither such Wholly-Owned Subsidiary nor any other intervening
Wholly-Owned Subsidiary between the Borrower
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and such Wholly-Owned Subsidiary has any Indebtedness for borrowed money (other
than Indebtedness due to the Borrower). The Borrower acknowledges that
Projects owned by the Guaranteeing Partnership will not constitute Unencumbered
Assets until the PS Guaranty is released.
"Unimproved Land" means land which constitutes a single tax parcel or
separately platted lot and on which construction of a bulk warehouse or light
industrial building has not commenced.
"Value of Unencumbered Assets" means, as of any date, the amount
determined by dividing the Property Operating Income for each Project which is
an Unencumbered Asset as of such date for a calculation period which shall be
either the immediately preceding full fiscal quarter or, if so requested by
Borrower or the Administrative Agent, the then current partial fiscal quarter
(as annualized) by the then-current "Average Residual Cap Rate for National
Industrial Markets" described in the definition of Implied Capitalization Value
(including the cap and floor on such rate described therein). If a Project has
been acquired during such calculation period then Borrower shall be entitled to
include pro forma Property Operating Income from such property for the entire
calculation period in the foregoing calculation, except for purposes of the
financial covenant comparing the Property Operating Income from Unencumbered
Assets during a quarter to Debt Service for such quarter. If a Project is no
longer owned as of the date of calculation, then no value shall be included
based on capitalizing Property Operating Income from such Project, except for
purposes of such financial covenant comparing the Property Operating Income
from Unencumbered Assets during a quarter to Debt Service for such quarter.
"Wholly-Owned Subsidiary" means a member of the Consolidated Operating
Partnership 100% of the ownership interests in which are owned, directly or
indirectly, by the Borrower and the General Partner in the aggregate.
The foregoing definitions shall be equally applicable to both the
singular and the plural forms of the defined terms.
1.2 Financial Standards. All financial computations required of a
Person under this Agreement shall be made, and all financial information
required under this Agreement shall be prepared, in accordance with GAAP,
except that if any Person's financial statements are not audited, such Person's
financial statements shall be prepared in accordance with the same sound
accounting principles utilized in connection with the financial information
submitted to Lenders with respect to the Borrower or the General Partner or the
Properties in connection with this Agreement and shall be certified by an
authorized representative of such Person.
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ARTICLE II
THE FACILITY
2.1 The Facility.
(a) Subject to the terms and conditions of this Agreement
and in reliance upon the representations and warranties of Borrower and General
Partner contained herein, Lenders agree, severally and not jointly, to make
Advances through the Administrative Agent to Borrower from time to time prior
to the Maturity Date, provided that the making of any such Advance will not
cause the then Allocated Facility Amount to exceed the then-current Aggregate
Commitment. The Advances may be ratable Adjusted Corporate Base Rate Advances,
ratable LIBOR Advances, non-pro rata Swingline Loans or non-pro rata
Competitive Bid Loans. Except as provided in Sections 2.15 and 2.16 hereof,
each Lender shall fund its Percentage of each such Advance and no Lender will
be required to fund any amounts which when aggregated with such Lender's
Percentage of (i) all other Advances (other than Competitive Bid Loans) then
outstanding, (ii) all Swingline Advances and (iii) all Facility Letter of
Credit Obligations would exceed such Lender's then-current Commitment. This
facility ("Facility") is a revolving credit facility and, subject to the
provisions of this Agreement, Borrower may request Advances hereunder, repay
such Advances and reborrow Advances at any time prior to the Maturity Date.
(b) The Facility created by this Agreement, and that
Commitment of each Lender to lend hereunder, shall terminate on the Maturity
Date, unless sooner terminated in accordance with the terms of this Agreement.
(c) In no event shall the Aggregate Commitment exceed Three
Hundred Million Dollars ($300,000,000).
2.2 Principal Payments and Extension Option. Any outstanding
Advances (other than Competitive Bid Loans) and all other unpaid Obligations
shall be paid in full by the Borrower on the Maturity Date. Each Competitive
Bid Loan shall be paid in full on the last day of the applicable Interest
Period as described in Section 2.16 below. The Maturity Date can be extended
for extension periods of one year each upon notice to the Administrative Agent
not later than April 30, 1999 with respect to the first such extension of the
Maturity Date and not later than each April 30 thereafter for each subsequent
extension of the Maturity Date (each an "Extension Notice"), if (i) no Default
has occurred and is continuing at the time of such notice and at the time of
the then applicable Maturity Date, (ii) all of the Lenders agree to such
extension, (iii) all prior extensions have been elected by the Borrower and
accepted by the Lenders, and (iv) the Borrower pays, on the first business day
of such extension period, an extension fee to the Administrative Agent for the
account of each Lender equal to 0.05% of the then-current Commitment of such
Lender. If the Borrower gives an Extension Notice to the Administrative Agent,
the Administrative Agent shall notify the Lenders within 10 days of
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receipt of such request. The Lenders shall have 30 days after receipt by each
such Lender of an Extension Notice to notify Administrative Agent as to whether
they accept or reject such extension request and Administrative Agent shall
notify Borrower and the Lenders promptly thereafter of the acceptance or
rejection of the Lenders of Borrower's request to extend the Maturity Date. If
the foregoing conditions are satisfied other than the condition requiring the
consent of all Lenders, then Borrower shall have the right to replace any
Lender that does not agree to the extension provided that Borrower notifies
such Lender that it has elected to replace such Lender and notifies such Lender
and the Administrative Agent of the identity of the proposed replacement Lender
no later than the date six (6) months after the date of the applicable
Extension Notice. The Lender being replaced shall assign its Percentage of the
Aggregate Commitment and its rights and obligations under this Facility to the
replacement Lender in accordance with the requirements of Section 13.3 hereof
and the replacement Lender shall assume such Percentage of the Aggregate
Commitment and the related obligations under this Facility prior to the
Maturity Date to be extended, all pursuant to an assignment and assumption
agreement substantially in the form of Exhibit J hereto. The purchase by the
replacement Lender shall be at par (plus all accrued and unpaid interest and
any other sums owed to such Lender being replaced hereunder) which shall be
paid to the Lender being replaced upon the execution and delivery of the
assignment.
2.3 Requests for Advances; Responsibility for Advances. Ratable
Advances shall be made available to Borrower by Administrative Agent in
accordance with Section 2.1(a) and Section 2.10(a) hereof. The obligation of
each Lender to fund its Percentage of each ratable Advance shall be several and
not joint.
2.4 Evidence of Credit Extensions. The Advances of each Lender
outstanding at any time (other than Competitive Bid Loans) shall be evidenced
by the Notes. Each Note executed by the Borrower shall be in a maximum
principal amount equal to each Lender's Percentage of the current Aggregate
Commitment. Each Lender shall record Advances and principal payments thereof
on the schedule attached to its Note or, at its option, in its records, and
each Lender's record thereof shall be conclusive absent Borrower furnishing to
such Lender conclusive and irrefutable evidence of an error made by such Lender
with respect to that Lender's records. Notwithstanding the foregoing, the
failure to make, or an error in making, a notation with respect to any Advance
shall not limit or otherwise affect the obligations of Borrower hereunder or
under the Notes to pay the amount actually owed by Borrower to Lenders.
2.5 Ratable and Non-Pro Rata Loans. Each Advance hereunder shall
consist of Loans made from the several Lenders ratably in proportion to their
Percentages, except for Swingline Loans which shall be made by the Swingline
Lender in accordance with Section 2.15 and Competitive Bid Loans which may be
made on a non-pro rata basis by one or more of the Lenders in accordance with
Section 2.16. The ratable Advances may be Adjusted Corporate Base Rate
Advances, LIBOR Advances or a combination thereof, selected by the Borrower in
accordance with Sections 2.9 and 2.10.
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2.6 Applicable Margins. The CBR Applicable Margin and the LIBOR
Applicable Margin to be used in calculating the interest rate applicable to
different types of Advances shall vary from time to time in accordance with the
ratings for Borrower's or General Partner's long-term, senior unsecured debt as
follows:
Rating Period:
LIBOR CBR
Rating Level of Lower of Applicable Applicable
Two Highest Ratings* Margin Facility Fee Margin
A-/A3 0.65% 0.15% 0
BBB+/Baa1 0.70% 0.20% 0
BBB/Baa2 0.80% 0.20% 0
BBB-/Baa3 0.95% 0.25% 0
Below BBB- or Baa3 1.25% 0.25% 0.25%
* The letter categories used above are established by reference to S&P and
Xxxxx'x categories, respectively. At least one of S&P or Moody's ratings
must always be included in the two ratings used.
All margins and fees change as and when the applicable rating level
changes. In the event an agency issues different ratings for the Borrower and
the General Partner, then the higher rating of the two entities shall be deemed
to be the rating from such agency.
2.7 Other Fees.
(a) The Borrower shall pay the fee due to the Administrative
Agent in connection with Competitive Bid Loans as described in Section 2.16. The
Borrower agrees to pay all other fees payable to the Administrative Agent and
First Chicago Capital Markets, Inc. pursuant to the Borrower's prior letter
agreements with them.
(b) The Borrower shall pay a fee ("Facility Fee") to the
Administrative Agent for the account of the Lenders equal to the applicable
Facility Fee Rate in effect from time to time, as shown in Section 2.6 hereof,
times the then Aggregate Commitment, to be shared among the Lenders based on
their respective Percentages. The Facility Fee shall be paid quarterly in
arrears.
2.8 Minimum Amount of Each Advance. Each LIBOR Advance shall be in
the minimum amount of $2,000,000 (and in multiples of $100,000 if in excess
thereof), and each
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Adjusted Corporate Base Rate Advance shall be in the minimum amount of
$1,000,000 (and in multiples of $100,000 if in excess thereof), provided,
however, that any Adjusted Corporate Base Rate Advance may be in the amount of
the unused Aggregate Commitment.
2.9 Interest.
(a) The outstanding principal balance under the Notes shall bear
interest from time to time at a rate per annum equal to:
(i) the Adjusted Corporate Base Rate; or
(ii) at the election of Borrower with respect to all or
portions of the Obligations, the Adjusted LIBOR Rate.
(b) All interest shall be calculated for actual days elapsed on
the basis of a 360-day year. Interest accrued on each Advance shall be payable
in arrears from time to time while such Advance is outstanding on each of (i)
the first day of each calendar month, commencing with the first such date to
occur after the date hereof, (ii) the last day of the applicable LIBOR Interest
Period (if such Advance is a LIBOR Advance), and (iii) the Maturity Date.
Interest shall not be payable for the day of any payment on the amount paid if
payment is received by Administrative Agent prior to noon (Chicago time). If any
payment of principal or interest under the Notes shall become due on a day that
is not a Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a payment of principal, such extension of time
shall be included in computing interest due in connection with such payment;
provided that for purposes of Section 10.1 hereof, any payments of principal
described in this sentence shall be considered to be "due" on such next
succeeding Business Day.
2.10 Selection of Rate Options and LIBOR Interest Periods.
(a) Borrower, from time to time, may select the Rate Option and,
in the case of each LIBOR Advance, the commencement date (which shall be a
Business Day) and the length of the LIBOR Interest Period applicable to each
LIBOR Advance. Borrower shall give Administrative Agent irrevocable notice (a
"Borrowing Notice" not later than 11:00 a.m. (Chicago time) (i) at least one
Business Day prior to an Adjusted Corporate Base Rate Advance, (ii) at least
three (3) Business Days prior to a ratable LIBOR Advance, and (iii) not later
than 11:00 a.m. (Chicago time) on the Borrowing Date for each Swingline Loan,
specifying:
(i) the Borrowing Date, which shall be a Business
Day, of such Advance,
(ii) the aggregate amount of such Advance,
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(iii) the type of Advance selected, and
(iv) in the case of each LIBOR Advance, the LIBOR
Interest Period applicable thereto.
The Borrower shall also deliver together with each Borrowing Notice the
compliance certificate required in Section 5.2 and otherwise comply with the
conditions set forth in Section 5.2 for Advances. Administrative Agent shall
provide each Lender by facsimile with a copy of each Borrowing Notice and
compliance certificate on the same Business Day it is received.
Not later than noon (Chicago time) on each Borrowing Date, each Lender
shall make available its Loan or Loans, in funds immediately available in
Chicago to the Administrative Agent. Administrative Agent will promptly make the
funds so received from the Lenders available to the Borrower.
(b) Administrative Agent shall, as soon as practicable after
receipt of a Borrowing Notice, determine the Adjusted LIBOR Rate applicable to
the requested ratable LIBOR Advance and inform Borrower and Lenders of the same.
Each determination of the Adjusted LIBOR Rate by Administrative Agent shall be
conclusive and binding upon Borrower in the absence of manifest error.
(c) If Borrower shall prepay a LIBOR Advance other than on the
last day of the LIBOR Interest Period applicable thereto, Borrower shall be
responsible to pay all amounts due to Lenders as required by Section 4.4 hereof.
The Lenders shall not be obligated to match fund their LIBOR Advances.
(d) As of the end of each LIBOR Interest Period selected for a
ratable LIBOR Advance, the interest rate on the LIBOR Advance will become the
Adjusted Corporate Base Rate, unless Borrower has once again selected a LIBOR
Interest Period in accordance with the timing and procedures set forth in
Section 2.10(g).
(e) The right of Borrower to select the Adjusted LIBOR Rate
for an Advance pursuant to this Agreement is subject to the availability to
Lenders of a similar option. If Administrative Agent determines that (i)
deposits of Dollars in an amount approximately equal to the LIBOR Advance for
which the Borrower wishes to select the Adjusted LIBOR Rate are not generally
available at such time in the London interbank eurodollar market, or (ii) the
rate at which the deposits described in subsection (i) herein are being offered
will not adequately and fairly reflect the costs to Lenders of maintaining an
Adjusted LIBOR Rate on an Advance or of funding the same in such market for such
LIBOR Interest Period, or (iii) reasonable means do not exist for determining an
Adjusted LIBOR Rate, or (iv) the Adjusted LIBOR Rate would be in excess of the
maximum interest rate which Borrower may by law pay, then in any of such events,
Administrative Agent shall so notify
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Borrower and Lenders and such Advance shall bear interest at the Adjusted
Corporate Base Rate.
(f) In no event may Borrower elect a LIBOR Interest Period
which would extend beyond the Maturity Date. Unless Lenders agree thereto, in no
event may Borrower have more than ten (10) different LIBOR Interest Periods for
LIBOR Advances outstanding at any one time.
(g) Conversion and Continuation.
(i) Borrower may elect from time to time, subject
to the other provisions of this Section 2.10, to convert all
or any part of a ratable Advance into any other type of
Advance; provided that any conversion of a ratable LIBOR
Advance shall be made on, and only on, the last day of the
LIBOR Interest Period applicable thereto.
(ii) Adjusted Corporate Base Rate Advances shall
continue as Adjusted Corporate Rate Advances unless and until
such Adjusted Corporate Base Rate Advances are converted into
ratable LIBOR Advances pursuant to a Conversion/Continuation
Notice from Borrower in accordance with Section 2.10(g)(iv).
Ratable LIBOR Advances shall continue until the end of the
then applicable LIBOR Interest Period therefor, at which time
each such Advance shall be automatically converted into an
Adjusted Corporate Base Rate Advance unless the Borrower shall
have given the Administrative Agent a Conversion/Continuation
Notice in accordance with Section 2.10(g)(iv) requesting that,
at the end of such LIBOR Interest Period, such Advance either
continue as an Advance of such type for the same or another
LIBOR Interest Period.
(iii) Notwithstanding anything to the contrary
contained in Sections 2.10(g)(i) or (g)(ii), no Advance may be
converted into a LIBOR Advance or continued as a LIBOR Advance
(except with the consent of the Majority Lenders) when any
Monetary Default or Event of Default has occurred and is
continuing.
(iv) The Borrower shall give the Administrative
Agent irrevocable notice (a "Conversion/Continuation Notice")
of each conversion of an Advance or continuation of a LIBOR
Advance not later than 11:00 a.m. (Chicago time) on the
Business Day immediately preceding the date of the requested
conversion, in the case of a conversion into an Adjusted
Corporate Base Rate Advance, or 11:00 a.m. (Chicago time) at
least three (3) Business Days prior to the date of the
requested conversion or continuation, in the case of a
conversion into or continuation of a ratable LIBOR Advance,
specifying: (1) the requested
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date (which shall be a Business Day) of such conversion or
continuation; (2) the amount and type of the Advance to be
converted or continued; and (3) the amounts and type(s) of
Advance(s) into which such Advance is to be converted or
continued and, in the case of a conversion into or
continuation of a ratable LIBOR Advance, the duration of the
LIBOR Interest Period applicable thereto.
2.11 Method of Payment. All payments of the Obligations hereunder
shall be made, without set-off, deduction, or counterclaim, in immediately
available funds to Administrative Agent at Administrative Agent's address
specified herein, or at any other Lending Installation of Administrative Agent
specified in writing by Administrative Agent to Borrower, by noon (local time)
on the date when due and shall be applied ratably by Administrative Agent among
Lenders. Each payment delivered to Administrative Agent for the account of any
Lender shall be delivered promptly by Administrative Agent to such Lender in
the same type of funds that Administrative Agent received at its address
specified herein or at any Lending Installation specified in a notice received
by Administrative Agent from such Lender. Administrative Agent is hereby
authorized to charge the account of Borrower maintained with First
Chicago for each payment of principal, interest and fees as it becomes due
hereunder.
2.12 Default. Notwithstanding the foregoing, during the continuance
of a Monetary Default or an Event of Default, Borrower shall not have the right
to request a LIBOR Advance, request a Competitive Bid Loan, select a new LIBOR
Interest Period for an existing ratable LIBOR Advance or convert any Adjusted
Corporate Base Rate Advance to a ratable LIBOR Advance. During the continuance
of a Monetary Default or an Event of Default, at the election of the Majority
Lenders, by notice to Borrower, outstanding Advances shall bear interest at the
applicable Default Rates until such Monetary Default or Event of Default ceases
to exist or the Obligations are paid in full.
2.13 Lending Installations. Each Lender may book its Advances at
any Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or telex
notice to the Administrative Agent and Borrower, designate a Lending
Installation through which Advances will be made by it and for whose account
payments are to be made.
2.14 Non-Receipt of Funds by Administrative Agent. Unless Borrower
or a Lender, as the case may be, notifies Administrative Agent prior to the
date on which it is scheduled to make payment to Administrative Agent of (i)
in the case of a Lender, an Advance, or (ii) in the case of Borrower, a payment
of principal, interest or fees to the Administrative Agent for the account of
the Lenders, that it does not intend to make such payment, Administrative
Agent may assume that such payment has been made. Administrative Agent may,
but shall not be obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If such Lender or
Borrower, as the case may be, has not in fact made
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such payment to Administrative Agent, the recipient of such payment shall, on
demand by Administrative Agent, repay to Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by
Administrative Agent until the date Administrative Agent recovers such amount at
a rate per annum equal to (i) in the case of payment by a Lender, the Federal
Funds Effective Rate (as determined by Administrative Agent) for such day or
(ii) in the case of payment by Borrower, the interest rate applicable to the
relevant Advance.
2.15 Swingline Loans. In addition to the other options available
to Borrower hereunder, the Swingline Commitment shall be available for Swingline
Loans subject to the following terms and conditions. Swingline Loans shall be
made available for same day borrowings provided that notice is given in
accordance with Section 2.10 hereof. All Swingline Loans shall bear interest at
the Adjusted Corporate Base Rate and shall be deemed to be Adjusted Corporate
Base Rate Advances. In no event shall the Swingline Lender be required to fund a
Swingline Loan if it would increase the total aggregate outstanding Loans by
Swingline Lender hereunder plus its Percentage of Facility Letter of Credit
Obligations to an amount in excess of its Commitment. Upon request of the
Swingline Lender made to all the Lenders, each Lender irrevocably agrees to
purchase its Percentage of any Swingline Loan made by the Swingline Lender
regardless of whether the conditions for disbursement are satisfied at the time
of such purchase, including the existence of an Event of Default hereunder
provided no Lender shall be required to have total outstanding Loans (other than
Competitive Bid Loans) plus its Percentage of Facility Letters of Credit to be
in an amount greater than its Commitment. Such purchase shall take place on the
date of the request by Swingline Lender so long as such request is made by noon
(Chicago time), otherwise on the Business Day following such request. All
requests for purchase shall be in writing. From and after the date it is so
purchased, each such Swingline Loan shall, to the extent purchased, (i) be
treated as a Loan made by the purchasing Lenders and not by the selling Lender
for all purposes under this Agreement and the payment of the purchase price by a
Lender shall be deemed to be the making of a Loan by such Lender and shall
constitute outstanding principal under such Lender's Note, and (ii) shall no
longer be considered a Swingline Loan except that all interest accruing on or
attributable to such Swingline Loan for the period prior to the date of such
purchase shall be paid when due by the Borrower to the Administrative Agent for
the benefit of the Swingline Lender and all such amounts accruing on or
attributable to such Loans for the period from and after the date of such
purchase shall be paid when due by the Borrower to the Administrative Agent for
the benefit of the purchasing Lenders. If prior to purchasing its Percentage of
a Swingline Loan one of the events described in Section 10.10 shall have
occurred and such event prevents the consummation of the purchase contemplated
by preceding provisions, each Lender will purchase an undivided participating
interest in the outstanding Swingline Loan in an amount equal to its Percentage
of such Swingline Loan. From and after the date of each Lender's purchase of its
participating interest in a Swingline Loan, if the Swingline Lender receives any
payment on account thereof, the Swingline Lender will distribute to such Lender
its participating interest in such amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender's
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participating interest was outstanding and funded); provided, however, that in
the event that such payment was received by the Swingline Lender and is required
to be returned to the Borrower, each Lender will return to the Swingline Lender
any portion thereof previously distributed by the Swingline Lender to it. If any
Lender fails to so purchase its Percentage of any Swingline Loan, such Lender
shall be deemed to be a Defaulting Lender hereunder. No Swingline Loan shall be
outstanding for more than five (5) days at a time and Swingline Loans shall not
be outstanding for more than a total of ten (10) days during any month.
2.16 Competitive Bid Loans.
(a) Competitive Bid Option. In addition to ratable Advances
pursuant to Section 2.5, but subject to the terms and conditions of this
Agreement (including, without limitation the limitation set forth in Section
2.1(a) as to the maximum Allocated Facility Amount), the Borrower may, as set
forth in this Section 2.16, but only during a Rating Period, request the
Lenders, prior to the Maturity Date, to make offers to make Competitive Bid
Loans to the Borrower. Each Lender may, but shall have no obligation to, make
such offers and the Borrower may, but shall have no obligation to, accept any
such offers in the manner set forth in this Section 2.16. Competitive Bid Loans
shall be evidenced by the Competitive Bid Notes.
(b) Competitive Bid Quote Request. When the Borrower wishes to
request offers to make Competitive Bid Loans under this Section 2.16, it shall
transmit to the Administrative Agent by telecopy a Competitive Bid Quote Request
substantially in the form of Exhibit C-1 hereto so as to be received no later
than (i) 10:00 a.m. (Chicago time) at least five Business Days prior to the
Borrowing Date proposed therein, in the case of a request for a Competitive
LIBOR Margin or (ii) 9:00 a.m. (Chicago time) at least one Business Day prior to
the Borrowing Date proposed therein, in the case of a request for an Absolute
Rate specifying:
(i) the proposed Borrowing Date for the
proposed Competitive Bid Loan,
(ii) the requested aggregate principal amount
of such Competitive Bid Loan,
(iii) whether the Competitive Bid Quotes
requested are to set forth a Competitive LIBOR Margin or an
Absolute Rate, or both, and
(iv) the LIBOR Interest Period, if a
Competitive LIBOR Margin is requested, or the Absolute
Interest Period, if an Absolute Rate is requested.
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period (but not more than five Interest Periods) in a single
Competitive Bid Quote Request. No Competitive Bid Quote Request shall be given
within five Business Days (or such other
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number of days as the Borrower and the Administrative Agent may agree) of any
other Competitive Bid Quote Request. A Competitive Bid Quote Request that does
not conform substantially to the form of Exhibit C-1 hereto shall be rejected,
and the Administrative Agent shall promptly notify the Borrower of such
rejection by telecopy.
(c) Invitation for Competitive Bid Quotes. Promptly and in any
event before the close of business on the same Business Day of receipt of a
Competitive Bid Quote Request that is not rejected pursuant to Section 2.16(b),
the Administrative Agent shall send to each of the Lenders by telecopy an
Invitation for Competitive Bid Quotes substantially in the form of Exhibit C-2
hereto, which shall constitute an invitation by the Borrower to each Lender to
submit Competitive Bid Quotes offering to make the Competitive Bid Loans to
which such Competitive Bid Quote Request relates in accordance with this Section
2.16.
(d) Submission and Contents of Competitive Bid Quotes.
(i) Each Lender may, in its sole discretion,
submit a Competitive Bid Quote containing an offer or offers
to make Competitive Bid Loans in response to any Invitation
for Competitive Bid Quotes. Each Competitive Bid Quote must
comply with the requirements of this Section 2.16(d) and must
be submitted to the Administrative Agent by telex or telecopy
at its offices not later than (a) 2:00 p.m. (Chicago time) at
least four Business Days prior to the proposed Borrowing Date,
in the case of a request for a Competitive LIBOR Margin or (b)
9:00 a.m. (Chicago time) on the proposed Borrowing Date, in
the case of a request for an Absolute Rate (or, in either case
upon reasonable prior notice to the Lenders, such other time
and rate as the Borrower and the Administrative Agent may
agree); provided that Competitive Bid Quotes submitted by
First Chicago may only be submitted if the Administrative
Agent or First Chicago notifies the Borrower of the terms of
the Offer or Offers contained therein no later than 30 minutes
prior to the latest time at which the relevant Competitive Bid
Quotes must be submitted by the other Lenders. Subject to the
Borrower's compliance with all other conditions to
disbursement herein, any Competitive Bid Quote so made shall
be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the
Borrower.
(ii) Each Competitive Bid Quote shall be in
substantially the form of Exhibit C-3 hereto and shall in any
case specify:
(a) the proposed Borrowing Date,
which shall be the same as that set forth in the
applicable Invitation for Competitive Bid Quotes,
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(b) the principal amount of the
Competitive Bid Loan for which each such offer is
being made, which principal amount (1) may be greater
than, less than or equal to the Commitment of the
quoting Lender, (2) must be at least $10,000,000 and
an integral multiple of $1,000,000, and (3) may not
exceed the principal amount of Competitive Bid Loans
for which offers are requested,
(c) as applicable, the Competitive
LIBOR Margin and Absolute Rate offered for each such
Competitive Bid Loan,
(d) the minimum amount, if any, of
the Competitive Bid Loan which may be accepted by the
Borrower, and
(e) the identity of the quoting
Lender, provided that such Competitive Bid Loan may
be funded by such Lender's Designated Lender as
provided in Section 2.16(j), regardless of whether
that is specified in the Competitive Bid Quote.
(iii) The Administrative Agent shall reject any
Competitive Bid Quote that:
(a) is not substantially in the form
of Exhibit C-3 hereto or does not specify all of the
information required by Section 2.16(d)(ii),
(b) contains qualifying, conditional
or similar language, other than any such language
contained in Exhibit C-3 hereto,
(c) proposes terms other than or in
addition to those set forth in the applicable
Invitation for Competitive Bid Quotes, or
(d) arrives after the time set forth
in Section 2.16(d)(i).
If any Competitive Bid Quote shall be rejected pursuant to
this Section 2.16(d)(iii), then the Administrative Agent shall
notify the relevant Lender of such rejection as soon as
practical.
(e) Notice to Borrower. The Administrative Agent shall
promptly notify the Borrower of the terms (i) of any Competitive Bid Quote
submitted by a Lender that is in accordance with Section 2.16(d) and (ii) of any
Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid Quote submitted by such Lender with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive
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Bid Quote shall be disregarded by the Administrative Agent unless such
subsequent Competitive Bid Quote specifically states that it is submitted solely
to correct a manifest error in such former Competitive Bid Quote. The
Administrative Agent's notice to the Borrower shall specify the aggregate
principal amount of Competitive Bid Loans for which offers have been received
for each Interest Period specified in the related Competitive Bid Quote Request
and the respective principal amounts and Competitive LIBOR Margins or Absolute
Rate, as the case may be, so offered.
(f) Acceptance and Notice by Borrower. Not later than (i) 6:00
p.m. (Chicago time) at least four Business Days prior to the proposed Borrowing
Date in the case of a request for a Competitive LIBOR Margin or (ii) 10:00 a.m.
(Chicago time) on the proposed Borrowing Date, in the case of a request for an
Absolute Rate (or, in either case upon reasonable prior notice to the Lenders,
such other time and date as the Borrower and the Administrative Agent may
agree), the Borrower shall notify the Administrative Agent of its acceptance or
rejection of the offers so notified to it pursuant to Section 2.16(e); provided,
however, that the failure by the Borrower to give such notice to the
Administrative Agent shall be deemed to be a rejection of all such offers. In
the case of acceptance, such notice (a "Competitive Bid Borrowing Notice") shall
specify the aggregate principal amount of offers for each Interest Period that
are accepted. The Borrower may accept any Competitive Bid Quote in whole or in
part (subject to the terms of Section 2.16(d)(iii)); provided that:
(i) the aggregate principal amount of all
Competitive Bid Loans to be disbursed on a given Borrowing
Date may not exceed the applicable amount set forth in the
related Competitive Bid Quote Request,
(ii) acceptance of offers may only be made on
the basis of ascending Competitive LIBOR Margins or Absolute
Rates, as the case may be, and
(iii) the Borrower may not accept any offer that
is described in Section 2.16(d)(iii) or that otherwise fails
to comply with the requirements of this Agreement.
(g) Allocation by Administrative Agent. If offers are made by
two or more Lenders with the same Competitive LIBOR Margins or Absolute Rates,
as the case may be, for a greater aggregate principal amount than the amount in
respect of which offers are accepted for the related Interest Period, the
principal amount of Competitive Bid Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Lenders as
nearly as possible (in such multiples, not greater than $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amount of such offers provided, however, that no Lender shall be
allocated any Competitive Bid Loan which is less than the minimum amount which
such Lender has indicated that it is willing to accept. Allocations by the
Administrative Agent of the amounts of Competitive Bid Loans
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shall be conclusive in the absence of manifest error. The Administrative Agent
shall promptly, but in any event on the same Business Day, notify each Lender of
its receipt of a Competitive Bid Borrowing Notice and the principal amounts of
the Competitive Bid Loans allocated to each participating Lender.
(h) Administration Fee. The Borrower hereby agrees to pay to
the Administrative Agent an administration fee of $2,500 per each Competitive
Bid Quote Request transmitted by the Borrower to the Administrative Agent
pursuant to Section 2.16(b). Such administration fee shall be payable monthly in
arrears on the first Business Day of each month and on the Maturity Date (or
such earlier date on which the Aggregate Commitment shall terminate or be
cancelled) for any period then ending for which such fee, if any, shall not
have been theretofore paid.
(i) Other Terms. Any Competitive Bid Loan shall not reduce the
Commitment of the Bid Lender making such Competitive Bid Loan (except as the
availability of other Advances is reduced by the increase in the Allocated
Facility Amount due to such Competitive Bid Loan) and each such Bid Lender shall
continue to be obligated to fund its full percentage of all pro rata Advances
under the Facility. In no event can the aggregate amount of all Competitive Bid
Loans at any time exceed the lesser of (i) 66.67% of the then Aggregate
Commitment, or (ii) Two Hundred Million Dollars ($200,000,000.00). Competitive
Bid Loans may not be continued and, if not repaid at the end of the Interest
Period applicable thereto, shall (subject to the conditions set forth in this
Agreement) be replaced by new Competitive Bid Loans made in accordance with this
Section 2.16 or by ratable Advances in accordance with Section 2.10.
(j) Designated Lenders. A Lender may designate its Designated
Lender to fund a Competitive Bid Loan on its behalf as described in Section
2.16(d)(ii)(e). Any Designated Lender which funds a Competitive Bid Loan shall
on and after the time of such funding become the obligee under such Competitive
Bid Loan and be entitled to receive payment thereof when due. No Lender shall be
relieved of its obligation to fund a Competitive Bid Loan, and no Designated
Lender shall assume such obligation, prior to the time such Competitive Bid Loan
is funded.
2.17 Voluntary Reduction of Aggregate Commitment Amount. Upon at
least five (5) days prior irrevocable written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent, Borrower
shall have the right, without premium or penalty, to terminate the Aggregate
Commitment in whole or in part provided that (a) Borrower may not reduce the
Aggregate Commitment below the Allocated Facility Amount at the time of such
requested reduction, and (b) any such partial termination shall be in the
minimum aggregate amount of Five Million Dollars (U.S. $5,000,000.00) or any
integral multiple of Five Million Dollars (U.S. $5,000,000.00) in excess
thereof. Any partial termination of the Aggregate Commitment shall be applied
pro rata to each Lender's Commitment.
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2.18 Application of Moneys Received. All moneys collected or
received by the Administrative Agent on account of the Facility
directly or indirectly, shall be applied in the following order of priority:
(i) to the payment of all reasonable costs
incurred in the collection of such moneys of which the
Administrative Agent shall have given notice to the Borrower;
(ii) to the reimbursement of any yield
protection due to any of the Lenders in accordance with
Section 4.1;
(iii) first to the payment of any fee due
pursuant to Section 3.8(b) in connection with the issuance of
a Facility Letter of Credit to the Issuing Bank until such fee
is paid in full, then next to the payment of the Facility Fee
and Facility Letter of Credit Fee to the Lenders, if then due,
in that order on a pro rata basis in accordance with the
respective amounts of such fees due to the Lenders and then
finally to the payment of all fees then due to the
Administrative Agent;
(iv) to payment of the full amount of interest
and principal on the Swingline Loans;
(v) first to interest until paid in full and
then to principal for all Lenders (other than Defaulting
Lenders) (i) as allocated by the Borrower (unless an Event of
Default exists) between Competitive Bid Loans and ratable
Advances (the amount allocated to ratable Advances to be
distributed in accordance with the Percentages of the Lenders)
or (ii) if an Event of Default exists, in accordance with the
respective Funded Percentages of the Lenders;
(vi) any other sums due to the Administrative
Agent or any Lender under any of the Loan Documents; and
(vii) to the payment of any sums due to each
Defaulting Lender as their respective Percentages appear
(provided that Administrative Agent shall have the right to
set-off against such sums any amounts due from such Defaulting
Lender).
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ARTICLE III
THE LETTER OF CREDIT SUBFACILITY
3.1 Obligation to Issue. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of the
Borrower and the General Partner herein set forth, the Issuing Bank hereby
agrees to issue for the account of Borrower, one or more Facility Letters of
Credit in accordance with this Article III, from time to time during the period
commencing on the Agreement Execution Date and ending on a date one Business Day
prior to the Maturity Date. The Issuing Bank has, as of the Agreement Execution
Date, issued four letters of credit under the Borrower's Existing Credit
Agreement in the face amounts of $979,687.50, $754,421, $329,000 and $308,621.06
which letters of credit shall be deemed Facility Letters of Credit hereunder.
3.2 Types and Amounts. The Issuing Bank shall not have any
obligation to:
(i) issue any Facility Letter of Credit if the
aggregate maximum amount then available for drawing under
Letters of Credit issued by such Issuing Bank, after giving
effect to the Facility Letter of Credit requested hereunder,
shall exceed any limit imposed by law or regulation upon such
Issuing Bank;
(ii) issue any Facility Letter of Credit if,
after giving effect thereto, either (1) the then applicable
Allocated Facility Amount would exceed the then current
Aggregate Commitment, or (2) the Facility Letter of Credit
Obligations would exceed $30,000,000;
(iii) issue any Facility Letter of Credit having
an expiration date, or containing automatic extension
provision to extend such date, to a date which is after the
Business Day immediately preceding the Maturity Date; or
(iv) issue any Facility Letter of Credit having
an expiration date, or containing automatic extension
provisions to extend such date, to a date which is more than
twelve (12) months after the date of its issuance.
3.3 Conditions. In addition to being subject to the satisfaction
of the conditions contained in Article V hereof, the obligation of the Issuing
Bank to issue any Facility Letter of Credit is subject to the satisfaction in
full of the following conditions:
(i) the Borrower shall have delivered to the Issuing Bank at
such times and in such manner as the Issuing Bank may reasonably
prescribe such documents and materials as may be reasonably required
pursuant to the terms of the proposed Facility Letter of Credit (it
being understood that if any inconsistency exists between such
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documents and the Loan Documents, the terms of the Loan Documents shall
control) and the proposed Facility Letter of Credit shall be reasonably
satisfactory to the Issuing Bank as to form and content;
(ii) as of the date of issuance, no order, judgment or decree
of any court, arbitrator or governmental authority shall purport by its
terms to enjoin or restrain the Issuing Bank from issuing the requested
Facility Letter of Credit and no law, rule or regulation applicable to
the Issuing Bank and no request or directive (whether or not having the
force of law) from any governmental authority with jurisdiction over
the Issuing Bank shall prohibit or request that the Issuing Bank
refrain from the issuance of Letters of Credit generally or the
issuance of the requested Facility Letter of Credit in particular; and
(iii) there shall not exist any Default or Event of Default.
3.4 Procedure for Issuance of Facility Letters of Credit.
(a) Borrower shall give the Issuing Bank and the
Administrative Agent at least two (2) Business Days' prior written notice of any
requested issuance of a Facility Letter of Credit under this Agreement (a
"Letter of Credit Request"), a copy of which shall be sent immediately to all
Lenders (except that, in lieu of such written notice, the Borrower may give the
Issuing Bank and the Administrative Agent telephonic notice of such request if
confirmed in writing by delivery to the Issuing Bank and the Administrative
Agent (i) immediately (A) of a telecopy of the written notice required hereunder
which has been signed by an authorized officer, or (B) of a telex containing all
information required to be contained in such written notice and (ii) promptly
(but in no event later than the requested date of issuance) of the written
notice required hereunder containing the original signature of an authorized
officer); such notice shall be irrevocable and shall specify:
(1) whether the requested Facility Letter of Credit is, in
Borrower's belief, a Financial Letter of Credit or a
Performance Letter of Credit;
(2) the stated amount of the Facility Letter of Credit requested
(which stated amount shall not be less than $50,000);
(3) the effective date (which day shall be a Business Day) of
issuance of such requested Facility Letter of Credit (the
"Issuance Date");
(4) the date on which such requested Facility Letter of Credit is
to expire;
(5) the purpose for which such Facility Letter of Credit is to be
issued;
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(6) the Person for whose benefit the requested Facility Letter of
Credit is to be issued; and
(7) any special language required to be included in the Facility
Letter of Credit.
At the time such request is made, the Borrower shall also provide the
Administrative Agent and the Issuing Bank with a copy of the form of the
Facility Letter of Credit that the Borrower is requesting be issued. Such
notice, to be effective, must be received by such Issuing Bank and the
Administrative Agent not later than 2:00 p.m. (Chicago time) on the last
Business Day on which notice can be given under this Section 3.4(a).
(b) Subject to the terms and conditions of this Article III
and provided that the applicable conditions set forth in Article V hereof have
been satisfied, the Issuing Bank shall, on the Issuance Date, issue a Facility
Letter of Credit on behalf of the Borrower in accordance with the Letter of
Credit Request and the Issuing Bank's usual and customary business practices
unless the Issuing Bank has actually received (i) written notice from the
Borrower specifically revoking the Letter of Credit Request with respect to such
Facility Letter of Credit, (ii) written notice from a Lender, which complies
with the provisions of Section 3.6(a), or (iii) written or telephonic notice
from the Administrative Agent stating that the issuance of such Facility Letter
of Credit would violate Section 3.2.
(c) The Issuing Bank shall give the Administrative Agent (who
shall promptly notify Lenders) and the Borrower written or telex notice, or
telephonic notice confirmed promptly thereafter in writing, of the issuance of a
Facility Letter of Credit (the "Issuance Notice"), which shall indicate the
Issuing Bank's reasonable determination as to whether such Facility Letter of
Credit is a Financial Letter of Credit or a Performance Letter of Credit, which
determination shall be conclusive absent manifest error.
(d) The Issuing Bank shall not extend or amend any Facility
Letter of Credit unless the requirements of this Section 3.4 are met as though a
new Facility Letter of Credit was being requested and issued.
3.5 Reimbursement Obligations; Duties of Issuing Bank.
(a) The Issuing Bank shall promptly notify the Borrower and
the Administrative Agent (who shall promptly notify Lenders) of any draw under a
Facility Letter of Credit. Any such draw shall constitute an Advance of the
Facility in the amount of the Reimbursement Obligation with respect to such
Facility Letter of Credit and shall bear interest from the date of the relevant
drawing(s) under the pertinent Facility Letter of Credit at a rate selected by
Borrower in accordance with Section 2.10 hereof; provided that if a Monetary
Default or an Event of Default exists at the time of any such drawing(s), then
the Borrower shall reimburse the Issuing Bank for drawings under a Facility
Letter of Credit issued by the
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Issuing Bank no later than the next succeeding Business Day after the payment by
the Issuing Bank and until repaid such Reimbursement Obligation shall bear
interest at the Default Rate.
(b) Any action taken or omitted to be taken by the Issuing
Bank under or in connection with any Facility Letter of Credit, if taken or
omitted in the absence of willful misconduct or gross negligence, shall not put
the Issuing Bank under any resulting liability to any Lender or, provided that
such Issuing Bank has complied with the procedures specified in Section 3.4 and
such Lender has not given a notice contemplated by Section 3.6(a) that continues
in full force and effect, relieve that Lender of its obligations hereunder to
the Issuing Bank. In determining whether to pay under any Facility Letter of
Credit, the Issuing Bank shall have no obligation relative to the Lenders other
than to confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered in compliance, and that they appear to
comply on their face, with the requirements of such Letter of Credit.
3.6 Participation.
(a) Immediately upon issuance by the Issuing Bank of any
Facility Letter of Credit in accordance with the procedures set forth in Section
3.4, each Lender shall be deemed to have irrevocably and unconditionally
purchased and received from the Issuing Bank, without recourse, representation
or warranty, an undivided interest and participation equal to such Lender's
Percentage in such Facility Letter of Credit (including, without limitation, all
obligations of the Borrower with respect thereto) and all related rights
hereunder and under the Guaranty and other Loan Documents; provided that a
Letter of Credit issued by the Issuing Bank shall not be deemed to be a Facility
Letter of Credit for purposes of this Section 3.6 if the Issuing Bank shall have
received written notice from any Lender on or before the Business Day prior to
the date of its issuance of such Letter of Credit that one or more of the
conditions contained in Section 5.2 is not then satisfied, and in the event the
Issuing Bank receives such a notice it shall have no further obligation to issue
any Facility Letter of Credit until such notice is withdrawn by that Lender or
the Issuing Bank receives a notice from the Administrative Agent that such
condition has been effectively waived in accordance with the provisions of this
Agreement. Each Lender's obligation to make further Loans to Borrower (other
than any payments such Lender is required to make under subparagraph (b) below)
or to purchase an interest from the Issuing Bank in any subsequent letters of
credit issued by the Issuing Bank on behalf of Borrower shall be reduced by such
Lender's Percentage of the undrawn portion of each Facility Letter of Credit
outstanding.
(b) In the event that the Issuing Bank makes any payment under
any Facility Letter of Credit and the Borrower shall not have repaid such amount
to the Issuing Bank pursuant to Section 3.7 hereof, the Issuing Bank shall
promptly notify the Administrative Agent, which shall promptly notify each
Lender of such failure, and each Lender shall promptly and unconditionally pay
to the Administrative Agent for the account of the Issuing Bank the amount of
such Lender's Percentage of the unreimbursed amount of such payment, and the
Administrative Agent shall promptly pay such amount to the Issuing Bank.
Lender's
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payments of its Percentage of such Reimbursement Obligation as aforesaid shall
be deemed to be a Loan by such Lender and shall constitute outstanding principal
under such Lender's Note. The failure of any Lender to make available to the
Administrative Agent for the account of the Issuing Bank its Percentage of the
unreimbursed amount of any such payment shall not relieve any other Lender of
its obligation hereunder to make available to the Administrative Agent for the
account of such Issuing Bank its Percentage of the unreimbursed amount of any
payment on the date such payment is to be made, but no Lender shall be
responsible for the failure of any other Lender to make available to the
Administrative Agent its Percentage of the unreimbursed amount of any payment on
the date such payment is to be made. Any Lender which fails to make any payment
required pursuant to this Section 3.6(b) shall be deemed to be a Defaulting
Lender hereunder.
(c) Whenever the Issuing Bank receives a payment on account of
a Reimbursement Obligation, including any interest thereon, the Issuing Bank
shall promptly pay to the Administrative Agent and the Administrative Agent
shall promptly pay to each Lender which has funded its participating interest
therein, in immediately available funds, an amount equal to such Lender's
Percentage thereof.
(d) Upon the request of the Administrative Agent or any
Lender, the Issuing Bank shall furnish to such Administrative Agent or Lender
copies of any Facility Letter of Credit to which the Issuing Bank is party and
such other documentation as may reasonably be requested by the Administrative
Agent or Lender.
(e) The obligations of a Lender to make payments to the
Administrative Agent for the account of the Issuing Bank with respect to a
Facility Letter of Credit shall be absolute, unconditional and irrevocable, not
subject to any counterclaim, set-off, qualification or exception whatsoever
other than a failure of any such Issuing Bank to comply with the terms of this
Agreement relating to the issuance of such Facility Letter of Credit, and such
payments shall be made in accordance with the terms and conditions of this
Agreement under all circumstances.
3.7 Payment of Reimbursement Obligations.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of the Issuing Bank the amount of all Advances for Reimbursement
Obligations, interest and other amounts payable to the Issuing Bank under or in
connection with any Facility Letter of Credit when due, irrespective of any
claim, set-off, defense or other right which the Borrower may have at any time
against any Issuing Bank or any other Person, under all circumstances, including
without limitation any of the following circumstances:
(i) any lack of validity or enforceability of
this Agreement or any of the other Loan Documents;
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(ii) the existence of any claim, setoff,
defense or other right which the Borrower may have at any time
against a beneficiary named in a Facility Letter of Credit or
any transferee of any Facility Letter of Credit (or any Person
for whom any such transferee may be acting), the
Administrative Agent, the Issuing Bank, any Lender, or any
other Person, whether in connection with this Agreement, any
Facility Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying
transactions between the Borrower and the beneficiary named in
any Facility Letter of Credit);
(iii) any draft, certificate or any other
document presented under the Facility Letter of Credit proving
to be forged, fraudulent, invalid or insufficient in any
respect of any statement therein being untrue or inaccurate in
any respect;
(iv) the surrender or impairment of any
security for the performance or observance of any of the terms
of any of the Loan Documents; or
(v) the occurrence of any Default or Event of
Default.
(b) In the event any payment by the Borrower received by the
Issuing Bank or the Administrative Agent with respect to a Facility Letter of
Credit and distributed by the Administrative Agent to the Lenders on account of
their participations is thereafter set aside, avoided or recovered from the
Administrative Agent or Issuing Bank in connection with any receivership,
liquidation, reorganization or bankruptcy proceeding, each Lender which received
such distribution shall, upon demand by the Administrative Agent, contribute
such Lender's Percentage of the amount set aside, avoided or recovered together
with interest at the rate required to be paid by the Issuing Bank or the
Administrative Agent upon the amount required to be repaid by the Issuing Bank
or the Administrative Agent.
3.8 Compensation for Facility Letters of Credit.
(a) The Borrower shall pay to the Administrative Agent, for
the ratable account of the Lenders, based upon the Lenders' respective
Percentages, a per annum fee (the "Facility Letter of Credit Fee") with respect
to each Facility Letter of Credit that is equal to (i) the LIBOR Applicable
Margin in effect from time to time in the case of Financial Letters of Credit,
and (ii) the LIBOR Applicable Margin from time to time minus 0.25% in the case
of Performance Letters of Credit. The Facility Letter of Credit Fee relating to
any Facility Letter of Credit shall be due and payable in arrears in equal
installments on the first Business Day of each month following the issuance of
any Facility Letter of Credit and, to the extent any such fees are then due and
unpaid, on the Maturity Date. The Administrative Agent shall promptly remit such
Facility Letter of Credit Fees, when paid, to the other Lenders in accordance
with
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their Percentages thereof. The Borrower shall not have any liability to any
Lender for the failure of the Administrative Agent to promptly deliver funds to
any such Lender and shall be deemed to have made all such payments on the date
the respective payment is made by the Borrower to the Administrative Agent,
provided such payment is received by the time specified in Section 2.11 hereof.
(b) The Issuing Bank also shall have the right to receive
solely for its own account an issuance fee of 0.15% of the face amount of each
Facility Letter of Credit, payable by the Borrower on the Issuance Date for each
such Facility Letter of Credit. The Issuing Bank shall also be entitled to
receive its reasonable out-of-pocket costs and the Issuing Bank's standard
charges of issuing, amending and servicing Facility Letters of Credit and
processing draws thereunder.
3.9 Letter of Credit Collateral Account. The Borrower hereby
agrees that it will, until the Maturity Date, maintain a special collateral
account (the "Letter of Credit Collateral Account") at the Administrative
Agent's office at the address specified pursuant to Article XV, in the
name of the Borrower but under the sole dominion and control of the
Administrative Agent, for the benefit of the Lenders, and in which the Borrower
shall have no interest other than as set forth in Section 11.1. In addition to
the foregoing, the Borrower hereby grants to the Administrative Agent, for the
benefit of the Lenders, a security interest in and to the Letter of Credit
Collateral Account and any funds that may hereafter be on deposit in such
account, including income earned thereon. The Lenders acknowledge and agree
that the Borrower has no obligation to fund the Letter of Credit Collateral
Account unless and until so required under Section 11.1 hereof.
ARTICLE IV
CHANGE IN CIRCUMSTANCES
4.1 Yield Protection. If the adoption of or change in any law or
any governmental or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any interpretation
thereof, or the compliance of any Lender therewith,
(i) subjects any Lender or any applicable
Lending Installation to any tax, duty, charge or withholding
on or from payments due from Borrower (excluding federal and
state taxation of the overall net income of any Lender or
applicable Lending Installation), or changes the basis of such
taxation of payments to any Lender in respect of its Advances,
its interest in the Facility Letters of Credit or other
amounts due it hereunder, or
(ii) imposes or increases or deems applicable
any reserve, assessment, insurance charge, special deposit or
similar requirement against
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assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation
(other than reserves and assessments taken into account in
determining the interest rate applicable to LIBOR Advances),
or
(iii) imposes any other condition, and the
result is to increase the cost of any Lender or any applicable
Lending Installation of making, funding or maintaining loans
or reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with loans, or
requires any Lender or any applicable Lending Installation to
make any payment calculated by reference to the amount of
loans held, Letters of Credit issued or participated in or
interest received by it, by an amount deemed material by such
Lender,
then, within fifteen (15) days of demand by such Lender, Borrower shall pay such
Lender that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable to making, funding and
maintaining its Advances and its Commitment.
4.2 Changes in Capital Adequacy Regulations. If a Lender
determines the amount of capital required or expected to be maintained
by such Lender, any Lending Installation of such Lender or any corporate entity
controlling such Lender is increased as a result of a Change (as defined
below), then, within fifteen (15) days of demand by such Lender, Borrower shall
pay such Lender the amount necessary to compensate for any shortfall in the
rate of return on the portion of such increased capital which such Lender
determines is attributable to this Agreement, its Advances, its interest in the
Facility Letters of Credit, or its obligation to make Advances hereunder or
participate in or issue Facility Letters of Credit hereunder (after taking into
account such Lender's policies as to capital adequacy). "Change" means (i) any
change after the date of this Agreement in the Risk-Based Capital Guidelines
(as defined below) or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital required or expected
to be maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the
risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards", including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
Without in any way affecting the Borrower's obligation to pay compensation
actually claimed by a Lender under this Section 4.2, the Borrower shall have
the right to replace any Lender which has demanded such compensation provided
that Borrower notifies such Lender that it has elected to replace such Lender
and notifies such Lender and the Administrative Agent of the identity of the
proposed
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replacement Lender not more than six (6) months after the date of such Lender's
most recent demand for compensation under this Section 4.2. The Lender being
replaced shall assign its Percentage of the Aggregate Commitment and its rights
and obligations under this Facility to the replacement Lender in accordance with
the requirements of Section 13.3 hereof and the replacement Lender shall assume
such Percentage of the Aggregate Commitment and the related obligations under
this Facility prior to the Maturity Date to be extended, all pursuant to an
assignment agreement substantially in the form of Exhibit J hereto. The purchase
by the replacement Lender shall be at par (plus all accrued and unpaid interest
and any other sums owed to such Lender being replaced hereunder) which shall be
paid to the Lender being replaced upon the execution and delivery of the
assignment.
4.3 Availability of LIBOR Advances. If any Lender determines that
maintenance of any of its LIBOR Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation or directive of any Governmental
Authority having jurisdiction, the Administrative Agent shall suspend by written
notice to Borrower the availability of LIBOR Advances and require any LIBOR
Advances to be repaid; or if the Majority Lenders determine that (i) deposits of
a type or maturity appropriate to match fund LIBOR Advances are not available,
the Administrative Agent shall suspend by written notice to Borrower the
availability of LIBOR Advances with respect to any LIBOR Advances made after the
date of any such determination, or (ii) an interest rate applicable to a LIBOR
Advance does not accurately reflect the cost of making a LIBOR Advance, and, if
for any reason whatsoever the provisions of Section 4.1 are inapplicable, the
Administrative Agent shall suspend by written notice to Borrower the
availability of LIBOR Advances with respect to any LIBOR Advances made after the
date of any such determination.
4.4 Funding Indemnification. If any payment of a ratable LIBOR
Advance or a Competitive Bid Loan occurs on a date which is not the
last day of the applicable Interest Period, whether because of acceleration,
prepayment or otherwise, or a ratable LIBOR Advance or a Competitive Bid Loan
is not made on the date specified by Borrower for any reason other than default
by one or more of the Lenders, Borrower will indemnify each Lender for any loss
or cost incurred by such Lender resulting therefrom, including, without
limitation, any loss or cost in liquidating or employing deposits acquired to
fund or maintain the ratable LIBOR Advance or Competitive Bid Loan, as the case
may be.
4.5 Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its LIBOR Advances to reduce any liability of
Borrower to such Lender under Sections 4.1 and 4.2 or to avoid the
unavailability of a LIBOR Advance, so long as such designation is not
disadvantageous to such Lender. Each Lender shall deliver a written statement
of such Lender as to the amount due, if any, under Sections 4.1, 4.2 or 4.4
hereof. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a LIBOR
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Advance shall be calculated as though each Lender funded its LIBOR Advance
through the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the Adjusted LIBOR Rate applicable to
such Advance, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement shall be payable on demand
after receipt by Borrower of the written statement. The obligations of Borrower
under Sections 4.1, 4.2 and 4.4 hereof shall survive payment of the Obligations
and termination of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions Precedent to Closing. The Lenders shall not be
required to make the initial Advance hereunder, nor shall the Issuing
Bank be required to issue the initial Facility Letter of Credit hereunder,
unless (i) the Borrower shall have paid all fees then due and payable to the
Lenders, First Chicago Capital Markets, Inc. and the Administrative Agent
hereunder, (ii) all of the conditions set forth in Section 5.2 are satisfied,
and (iii) the Borrower shall have furnished to the Administrative Agent, in
form and substance satisfactory to the Lenders and their counsel and with
sufficient copies for the Lenders, the following:
(a) Certificates of Limited Partnership/Incorporation. A copy
of the Certificate of Limited Partnership for the Borrower and a copy of the
articles of incorporation of General Partner, each certified by the appropriate
Secretary of State or equivalent state official.
(b) Agreements of Limited Partnership/Bylaws. A copy of the
Agreement of Limited Partnership for the Borrower and a copy of the bylaws of
the General Partner, including all amendments thereto, each certified by the
Secretary or an Assistant Secretary of the General Partner as being in full
force and effect on the Agreement Execution Date.
(c) Good Standing Certificates. A certified copy of a
certificate from the Secretary of State or equivalent state official of the
states where the Borrower and General Partner are organized, dated as of the
most recent practicable date, showing the good standing or partnership
qualification (if issued) of (i) Borrower, and (ii) General Partner.
(d) Foreign Qualification Certificates. A certified copy of a
certificate from the Secretary of State or equivalent state official of the
state where the Borrower and General Partner maintain their principal place of
business, dated as of the most recent practicable date, showing the
qualification to transact business in such state as a foreign limited
partnership or foreign corporation, as the case may be, for (i) Borrower, and
(ii) General Partner.
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(e) Resolutions. A copy of a resolution or resolutions adopted
by the Board of Directors of the General Partner, certified by the Secretary or
an Assistant Secretary of the General Partner as being in full force and effect
on the Agreement Execution Date, authorizing the Advances provided for herein
and the execution, delivery and performance of the Loan Documents by the General
Partner to be executed and delivered by it hereunder on behalf of itself and
Borrower.
(f) Incumbency Certificate. A certificate, signed by the
Secretary or an Assistant Secretary of the General Partner and dated the
Agreement Execution Date, as to the incumbency, and containing the specimen
signature or signatures, of the Persons authorized to execute and deliver the
Loan Documents to be executed and delivered by it and Borrower hereunder.
(g) Loan Documents. Originals of the Loan Documents (in such
quantities as the Lenders may reasonably request), duly executed by authorized
officers of the appropriate entity.
(h) Opinion of Borrower's Counsel. A written opinion, dated
the Agreement Execution Date, from outside counsel for the Borrower which
counsel is reasonably satisfactory to Administrative Agent, substantially in the
form attached hereto as Exhibit E.
(i) Opinion of General Partner's Counsel. A written opinion,
dated the Agreement Execution Date, from outside counsel for the General Partner
which counsel is reasonably satisfactory to Administrative Agent, substantially
in the form attached hereto as Exhibit F.
(j) Insurance. Original or certified copies of insurance
policies or binders therefor, with accompanying receipts showing current payment
of all premiums, evidencing that Borrower carries insurance on the Unencumbered
Assets which satisfies the Administrative Agent's insurance requirements,
including, without limitation:
(i) Property and casualty insurance (including
coverage for flood and other water damage for any Unencumbered
Assets located within a 100-year flood plain) in the amount of
the replacement cost of the improvements at the Unencumbered
Assets;
(ii) Loss of rental income insurance in the amount
not less than one year's Gross Revenues from the Unencumbered
Assets; and
(iii) Comprehensive general liability insurance in
the amount of $1,000,000 per occurrence.
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All insurance must be carried by companies with a Best
Insurance Reports (1992) Policyholder's and Financial Size Rating of "A-VII" or
better.
(k) Prior Facility. The Lenders acknowledge that the Borrower
has properly terminated the Existing Credit Agreement effective as of the date
of the initial Advance and shall pay all outstanding obligations thereunder with
the proceeds of the initial Advance hereunder.
(l) Financial and Related Information. The following
information:
(i) A certificate, signed by an officer of the
Borrower, stating that on the Agreement Execution Date no
Default or Event of Default has occurred and is continuing and
that all representations and warranties of the Borrower
contained herein are true and correct as of the Agreement
Execution Date as and to the extent set forth herein;
(ii) The most recent financial statements of
the Borrower and General Partner and a certificate from a
Qualified Officer of the Borrower that no change in the
Borrower's financial condition that would have a Material
Adverse Effect has occurred since September 30, 1997;
(iii) Evidence of sufficient Unencumbered Assets
(which evidence may include pay-off letters (together with
evidence of payment or a direction of Borrower to use a
portion of the proceeds of the Advances to repay such
Indebtedness), mortgage releases and/or title policies) to
assist the Administrative Agent in determining the Borrower's
compliance with the covenants set forth in Article IX herein;
(iv) Written money transfer instructions, in
substantially the form of Exhibit G hereto, addressed to the
Administrative Agent and signed by a Qualified Officer,
together with such other related money transfer authorizations
as the Administrative Agent may have reasonably requested; and
(v) Operating statements for the Unencumbered
Assets and other evidence of income and expenses to assist the
Administrative Agent in determining Borrower's compliance with
the covenants set forth in Article IX herein.
(m) Other Evidence as any Lender May Require. Such other
evidence as any Lender may reasonably request to establish the consummation of
the transactions contemplated hereby, the taking of all necessary actions in any
proceedings in connection herewith and compliance with the conditions set forth
in this Agreement.
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When all such conditions have been fulfilled (or, in the Lenders' sole
discretion, waived by Lenders), the Lenders shall confirm in writing to
Borrower that the initial Advance is then available to Borrower hereunder.
5.2 Conditions Precedent to Subsequent Advances. Advances after
the initial Advance shall be made from time to time as requested by Borrower,
and the obligation of each Lender to make any Advance (including Swingline
Loans and Competitive Bid Loans) and the obligation of the Issuing Bank to
issue a Facility Letter of Credit is subject to the following terms and
conditions:
(a) prior to each such Advance no Default or Event of
Default shall have occurred and be continuing under this Agreement or any of
the Loan Documents and, if required by Administrative Agent, Borrower shall
deliver a certificate of Borrower to such effect; and
(b) The representations and warranties contained in
Article VI and VII are true and correct as of such borrowing date, Issuance
Date, or date of conversion and/or continuation as and to the extent set forth
therein, except to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or warranty
shall be true and correct on and as of such earlier date.
Subject to the last grammatical paragraphs of Article VI and VII
hereof, each Borrowing Notice, Letter of Credit Request, and
Conversion/Continuation Notice shall constitute a representation and warranty
by the Borrower that the conditions contained in Sections 5.2(a) and (b) have
been satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants that:
6.1 Existence. Borrower is a limited partnership duly organized
and existing under the laws of the State of Delaware, with its principal place
of business in the State of Illinois, and is duly qualified as a foreign
limited partnership, properly licensed (if required), in good standing and has
all requisite authority to conduct its business in each jurisdiction in which
it owns Properties and, except where the failure to be so qualified or to
obtain such authority would not have a Material Adverse Effect, in each other
jurisdiction in which its business is conducted. Each of its Subsidiaries is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has all requisite authority to conduct its
business in each jurisdiction in which it owns Property, and except where the
failure to be so
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qualified or to obtain such authority would not have a Material Adverse Effect,
in each other jurisdiction in which it conducts business.
6.2 Corporate/Partnership Powers. The execution, delivery and
performance of the Loan Documents required to be delivered by Borrower
hereunder are within the partnership authority of such entity and the corporate
powers of the general partners of such entity, have been duly authorized by all
requisite action, and are not in conflict with the terms of any organizational
instruments of such entity, or any instrument or agreement to which Borrower or
General Partner is a party or by which Borrower, General Partner or any of
their respective assets may be bound or affected.
6.3 Power of Officers. The officers of the general partner of
Borrower executing the Loan Documents required to be delivered by such entities
hereunder have been duly elected or appointed and were fully authorized to
execute the same at the time each such agreement, certificate or instrument was
executed.
6.4 Government and Other Approvals. No approval, consent,
exemption or other action by, or notice to or filing with, any governmental
authority is necessary in connection with the execution, delivery or
performance of the Loan Documents required hereunder.
6.5 Solvency.
(i) Immediately after the Agreement
Execution Date and immediately following the making of each
Loan and after giving effect to the application of the
proceeds of such Loans, (a) the fair value of the assets of
the Borrower and its Subsidiaries on a consolidated basis, at
a fair valuation, will exceed the debts and liabilities,
subordinated, contingent or otherwise, of the Borrower and its
Subsidiaries on a consolidated basis; (b) the present fair
saleable value of the Properties of the Borrower and its
Subsidiaries on a consolidated basis will be greater than the
amount that will be required to pay the probable liability of
the Borrower and its Subsidiaries on a consolidated basis on
their debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute
and matured; (c) the Borrower and its Subsidiaries on a
consolidated basis will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) the
Borrower and its Subsidiaries on a consolidated basis will not
have unreasonably small capital with which to conduct the
businesses in which they are engaged as such businesses are
now conducted and are proposed to be conducted after the date
hereof.
(ii) Borrower does not intend to, or to
permit any of its Subsidiaries to incur debts beyond its
ability to pay such debts as they mature,
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taking into account the timing of and amounts of cash to be
received by it or any such Subsidiary and the timing of the
amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.
6.6 Compliance With Laws. There is no judgment, decree or order
or any law, rule or regulation of any court or governmental authority binding
on Borrower or any of its Subsidiaries which would be contravened by the
execution, delivery or performance of the Loan Documents required hereunder.
6.7 Enforceability of Agreement. This Agreement is the legal,
valid and binding agreement of the Borrower, and the Notes when executed and
delivered will be the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms, and
the Loan Documents required hereunder, when executed and delivered, will be
similarly legal, valid, binding and enforceable except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws affecting the rights of creditors generally.
6.8 Title to Property. To the best of Borrower's knowledge after
due inquiry, Borrower or its Subsidiaries has good and marketable title to the
Properties and assets reflected in the financial statements as owned by it or
any such Subsidiary free and clear of Liens except for the Permitted Liens.
The execution, delivery or performance of the Loan Documents required to be
delivered by the Borrower hereunder will not result in the creation of any Lien
on the Properties. No consent to the transactions contemplated hereunder is
required from any ground lessor or mortgagee or beneficiary under a deed of
trust or any other party except as has been delivered to the Lenders.
6.9 Litigation. There are no suits, arbitrations, claims,
disputes or other proceedings (including, without limitation, any civil,
criminal, administrative or environmental proceedings), pending or, to the best
of Borrower's knowledge, threatened against or affecting the Borrower or any of
the Properties, the adverse determination of which individually or in the
aggregate would have a Material Adverse Effect on the Borrower and/or would
cause a Material Adverse Financial Change of Borrower or materially impair the
Borrower's ability to perform its obligations hereunder or under any instrument
or agreement required hereunder, except as disclosed on Schedule 6.9 hereto, or
otherwise disclosed to Lenders in accordance with the terms hereof.
6.10 Events of Default. No Default or Event of Default has
occurred and is continuing or would result from the incurring of obligations by
the Borrower under any of the Loan Documents or any other document to which
Borrower is a party.
6.11 Investment Company Act of 1940. Borrower is not and will by
such acts as may be necessary continue not to be, an investment company within
the meaning of the Investment Company Act of 1940.
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6.12 Public Utility Holding Company Act. The Borrower is not a
"holding company" or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company," or of a "subsidiary company" of a "holding
company," within the definitions of the Public Utility Holding Company Act of
1935, as amended.
6.13 Regulation U. The proceeds of the Advances will not be used,
directly or indirectly, to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin Stock.
6.14 No Material Adverse Financial Change. To the best knowledge
of Borrower, there has been no Material Adverse Financial Change in the
condition of Borrower since the date of the financial and/or operating
statements most recently submitted to the Lenders.
6.15 Financial Information. All financial statements furnished to
the Lenders by or at the direction of the Borrower and all other financial
information and data furnished by the Borrower to the Lenders are complete and
correct in all material respects as of the date thereof, and such financial
statements have been prepared in accordance with GAAP and fairly present the
consolidated financial condition and results of operations of the Borrower as
of such date. The Borrower has no contingent obligations, liabilities for
taxes or other outstanding financial obligations which are material in the
aggregate, except as disclosed in such statements, information and data.
6.16 Factual Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the Borrower to the Lenders for
purposes of or in connection with this Agreement and the other Loan Documents
and the transactions contemplated therein is, and all other such factual
information hereafter furnished by or on behalf of the Borrower to the Lenders
will be, true and accurate (taken as a whole) in all material respects on the
date as of which such information is dated or certified and not incomplete by
omitting to state any material fact necessary to make such information (taken
as a whole) not misleading at such time.
6.17 ERISA. (i) Borrower is not an entity deemed to hold "plan
assets" within the meaning of ERISA or any regulations promulgated thereunder
of an employee benefit plan (as defined in Section 3(3) of ERISA) which is
subject to Title I of ERISA or any plan within the meaning of Section 4975 of
the Code, and (ii) the execution of this Agreement and the transactions
contemplated hereunder do not give rise to a prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code.
6.18 Taxes. All required tax returns have been filed by Borrower
with the appropriate authorities except to the extent that extensions of time
to file have been requested, granted and have not expired or except to the
extent such taxes are being contested in good faith and for which adequate
reserves, in accordance with GAAP, are being maintained.
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6.19 Environmental Matters. Except as disclosed in Schedule 6.19,
each of the following representations and warranties is true and correct except
to the extent that the facts and circumstances giving rise to any such failure
to be so true and correct, in the aggregate, could not reasonably be expected
to have a Material Adverse Effect:
(i) To the knowledge of the Borrower,
the Properties of Borrower, its Subsidiaries, and Investment
Affiliates do not contain any Materials of Environmental
Concern in amounts or concentrations which constitute a
violation of, or could reasonably give rise to liability
under, Environmental Laws.
(ii) Borrower has not received any
written notice alleging that any or all of the Properties of
Borrower and its Subsidiaries and Investment Affiliates and
all operations at the Properties are not currently in
compliance with all applicable Environmental Laws. Further,
Borrower has not received any written notice alleging the
current existence of any contamination at or under such
Properties in amounts or concentrations which constitute a
violation of any Environmental Law, or any violation of any
Environmental Law with respect to such Properties for which
Borrower, its Subsidiaries or Investment Affiliates is or
could be liable.
(iii) Neither Borrower nor any of its
Subsidiaries or Investment Affiliates has received any written
notice of current non-compliance, liability or potential
liability regarding Environmental Laws with regard to any of
the Properties, nor does it have knowledge that any such
notice will be received or is being threatened.
(iv) To the knowledge of Borrower during
the ownership of the Properties by any or all of Borrower, its
Subsidiaries and Investment Affiliates, Materials of
Environmental Concern have not been transported or disposed of
from the Properties of Borrower and its Subsidiaries and
Investment Affiliates in violation of, or in a manner or to a
location which could reasonably give rise to liability of
Borrower, any Subsidiary, or any Investment Affiliate under,
Environmental Laws, nor during the ownership of the Properties
by any or all of Borrower, its Subsidiaries and Investment
Affiliates have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any
of such Properties in violation of, or in a manner that could
give rise to liability of Borrower, any Subsidiary or any
Investment Affiliate under, any applicable Environmental Laws.
(v) No judicial proceedings or
governmental or administrative action is pending, or, to the
knowledge of Borrower, threatened, under any Environmental Law
to which Borrower, any of its Subsidiaries, or any
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Investment Affiliate, is named as a party with respect to the
Properties of such entity, nor are there any consent decrees
or other decrees, consent orders, administrative order or
other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to such
Properties for which Borrower, its Subsidiaries, or any
Investment Affiliate is or could be liable.
(vi) To the knowledge of Borrower during
the ownership of the Properties by any or all of Borrower, its
Subsidiaries and Investment Affiliates, there has been no
release or threat of release of Materials of Environmental
Concern at or from the Properties of Borrower and its
Subsidiaries and Investment Affiliates, or arising from or
related to the operations of such entity in connection with
the Properties in violation of or in amounts or in a manner
that could give rise to liability under Environmental Laws.
6.20 Insurance. Borrower has obtained the insurance which Borrower
is required to furnish to Lenders under Section 5.1(j) hereof.
6.21 No Brokers. Borrower has dealt with no brokers in connection
with this Facility, and no brokerage fees or commissions are payable by or to
any Person in connection with this Agreement or the Advances. Lenders shall
not be responsible for the payment of any fees or commissions to any broker and
Borrower shall indemnify, defend and hold Lenders harmless from and against any
claims, liabilities, obligations, damages, costs and expenses (including
reasonable attorneys' fees and disbursements) made against or incurred by
Lenders as a result of claims made or actions instituted by any broker or
Person claiming by, through or under Borrower in connection with the Facility.
6.22 No Violation of Usury Laws. No aspect of any of the
transactions contemplated herein violate or will violate any usury laws or laws
regarding the validity of agreements to pay interest in effect on the date
hereof.
6.23 Not a Foreign Person. Borrower is not a "foreign person"
within the meaning of Section 1445 or 7701 of the Internal Revenue Code.
6.24 No Trade Name. Except for the name "First Industrial," and
except as otherwise set forth on Schedule 6.24 attached hereto, Borrower does
not use any trade name and has not and does not do business under any name
other than their actual names set forth herein. The principal place of
business of Borrower is as stated in the recitals hereto.
6.25 Subsidiaries. Schedule 6.25 hereto contains an accurate list
of all of the presently existing Subsidiaries of Borrower, setting forth their
respective jurisdictions of formation, the percentage of their respective
Capital Stock owned by it or its Subsidiaries and
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the Properties owned by them. All of the issued and outstanding shares of
Capital Stock of such Subsidiaries have been duly authorized and issued and are
fully paid and non-assessable.
6.26 Unencumbered Assets. Schedule 6.26 hereto contains a complete
and accurate description of Unencumbered Assets as of the Agreement Execution
Date and as supplemented from time to time including the entity that owns each
Unencumbered Asset. With respect to each Project identified from time to time
as an Unencumbered Asset, Borrower hereby represents and warrants as follows
except to the extent disclosed in writing to the Lenders and approved by the
Majority Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered
Asset is located in an area identified by the Secretary of Housing and Urban
Development or any successor thereto as an area having special flood hazards
pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster
Protection Act of 1973, as amended, or any successor law, or, if located within
any such area, Borrower has obtained and will maintain the insurance prescribed
in Section 5.1(j) hereof.
(b) To the Borrower's knowledge, the Unencumbered Asset
and the present use and occupancy thereof are in material compliance with all
applicable zoning ordinances (without reliance upon adjoining or other
properties), building codes, land use and Environmental Laws, and other similar
laws ("Applicable Laws").
(c) The Unencumbered Asset is served by all utilities
required for the current or contemplated use thereof. All utility service is
provided by public utilities and the Unencumbered Asset has accepted or is
equipped to accept such utility service.
(d) All public roads and streets necessary for service of
and access to the Unencumbered Asset for the current or contemplated use
thereof have been completed, are serviceable and all-weather and are physically
and legally open for use by the public.
(e) The Unencumbered Asset is served by public water and
sewer systems or, if the Unencumbered Asset is not serviced by a public water
and sewer system, such alternate systems are adequate and meet, in all material
respects, all requirements and regulations of, and otherwise complies in all
material respects with, all Applicable Laws with respect to such alternate
systems.
(f) Borrower is not aware of any latent or patent
structural or other significant deficiency of the Unencumbered Asset. The
Unencumbered Asset is free of damage and waste that would materially and
adversely affect the value of the Unencumbered Asset, is in good repair and
there is no deferred maintenance other than ordinary wear and tear. The
Unencumbered Asset is free from damage caused by fire or other casualty. There
is no pending or, to the actual knowledge of Borrower threatened condemnation
proceedings affecting the Unencumbered Asset, or any material part thereof.
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(g) To Borrower's knowledge, all liquid and solid waste
disposal, septic and sewer systems located on the Unencumbered Asset are in a
good and safe condition and repair and to Borrower's knowledge, in material
compliance with all Applicable Laws with respect to such systems.
(h) All improvements on the Unencumbered Asset lie within
the boundaries and building restrictions of the legal description of record of
the Unencumbered Asset, no such improvements encroach upon easements
benefitting the Unencumbered Asset other than encroachments that do not
materially adversely affect the use or occupancy of the Unencumbered Asset and
no improvements on adjoining properties encroach upon the Unencumbered Asset or
easements benefitting the Unencumbered Asset other than encroachments that do
not materially adversely affect the use or occupancy of the Unencumbered Asset.
All amenities, access routes or other items that materially benefit the
Unencumbered Asset are under direct control of Borrower, constitute permanent
easements that benefit all or part of the Unencumbered Asset or are public
property, and the Unencumbered Asset, by virtue of such easements or otherwise,
is contiguous to a physically open, dedicated all weather public street, and
has the necessary permits for ingress and egress.
(i) There are no delinquent taxes, ground rents, water
charges, sewer rents, assessments, insurance premiums, leasehold payments, or
other outstanding charges affecting the Unencumbered Asset except to the extent
such items are being contested in good faith and as to which adequate reserves
have been provided.
A breach of any of the representations and warranties contained in this Section
6.26 with respect to a Project shall disqualify such Project from being an
Unencumbered Asset for so long as such breach continues (unless otherwise
approved by the Majority Lenders) but shall not constitute a Default (unless
the elimination of such Property as an Unencumbered Asset results in a Default
under one of the other provisions of this Agreement).
Borrower agrees that all of its representations and warranties set
forth in Article VI of this Agreement and elsewhere in this Agreement are true
on the Agreement Execution Date, and will be true on each Effective Date in all
material respects (except with respect to matters which have been disclosed in
writing to and approved by the Majority Lenders), and will be true in all
material respects (except with respect to matters which have been disclosed in
writing to and approved by the Majority Lenders) upon each request for
disbursement of an Advance, provided that the Borrower shall only be obligated
to update any Schedules referred to in this Article VI on a quarterly basis,
along with the quarterly financial statements required under Section 8.2(i),
unless any change otherwise required to be disclosed could reasonably be
expected to have a Material Adverse Effect. Each request for disbursement
hereunder shall constitute a reaffirmation of such representations and
warranties as deemed modified in accordance with the disclosures made and
approved, as aforesaid, as of the date of such request and disbursement.
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ARTICLE VII
ADDITIONAL REPRESENTATIONS AND WARRANTIES
The General Partner hereby represents and warrants that:
7.1 Existence. The General Partner is a corporation duly
organized and existing under the laws of the State of Maryland, with its
principal place of business in the State of Illinois, is duly qualified as a
foreign corporation and properly licensed (if required) and in good standing in
each jurisdiction where the failure to qualify or be licensed (if required)
would constitute a Material Adverse Financial Change with respect to the
General Partner or have a Material Adverse Effect on the business or properties
of the General Partner.
7.2 Corporate Powers. The execution, delivery and performance of
the Loan Documents required to be delivered by the General Partner hereunder
are within the corporate powers of the General Partner, have been duly
authorized by all requisite corporate action, and are not in conflict with the
terms of any organizational instruments of the General Partner, or any
instrument or agreement to which the General Partner is a party or by which
General Partner or any of its assets is bound or affected.
7.3 Power of Officers. The officers of the General Partner
executing the Loan Documents required to be delivered by the General Partner
hereunder have been duly elected or appointed and were fully authorized to
execute the same at the time each such agreement, certificate or instrument was
executed.
7.4 Government and Other Approvals. No approval, consent,
exemption or other action by, or notice to or filing with, any governmental
authority is necessary in connection with the execution, delivery or
performance of the Loan Documents required hereunder.
7.5 Compliance With Laws. There is no judgment, decree or order
or any law, rule or regulation of any court or governmental authority binding
on the General Partner which would be contravened by the execution, delivery or
performance of the Loan Documents required hereunder.
7.6 Enforceability of Agreement. This Agreement is the legal,
valid and binding agreement of the General Partner, as the general partner of
Borrower, enforceable against the General Partner in accordance with its
respective terms, and the Loan Documents required hereunder, when executed and
delivered, will be similarly legal, valid, binding and enforceable except to
the extent that such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting the rights of
creditors generally.
7.7 Liens; Consents. The execution, delivery or performance of
the Loan Documents required to be delivered by the General Partner hereunder
will not result in the
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creation of any Lien on the Properties other than in favor of the Lenders. No
consent to the transactions hereunder is required from any ground lessor or
mortgagee or beneficiary under a deed of trust or any other party except as has
been delivered to the Lenders.
7.8 Litigation. There are no suits, arbitrations, claims,
disputes or other proceedings (including, without limitation, any civil,
criminal, administrative or environmental proceedings), pending or, to the best
of General Partner's knowledge, threatened against or affecting the General
Partner or any of the Properties, the adverse determination of which
individually or in the aggregate would have a Material Adverse Effect on the
General Partner and/or would cause a Material Adverse Financial Change with
respect to the General Partner or materially impair the General Partner's
ability to perform its obligations hereunder or under any instrument or
agreement required hereunder, except as disclosed on Schedule 7.8 hereto, or
otherwise disclosed to Lenders in accordance with the terms hereof.
7.9 Events of Default. No Default or Event of Default has
occurred and is continuing or would result from the incurring of obligations by
the General Partner under any of the Loan Documents or any other document to
which General Partner is a party.
7.10 Investment Company Act of 1940. The General Partner is not,
and will by such acts as may be necessary continue not to be, an investment
company within the meaning of the Investment Company Act of 1940.
7.11 Public Utility Holding Company Act. The General Partner is
not a "holding company" or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company," or of a "subsidiary company" of a "holding
company," within the definitions of the Public Utility Holding Company Act of
1935, as amended.
7.12 No Material Adverse Financial Change. There has been no
Material Adverse Financial Change in the condition of the General Partner since
the last date on which the financial and/or operating statements were submitted
to the Lenders.
7.13 Financial Information. All financial statements furnished to
the Lenders by or on behalf of the General Partner and all other financial
information and data furnished by or on behalf of the General Partner to the
Lenders are complete and correct in all material respects as of the date
thereof, and such financial statements have been prepared in accordance with
GAAP and fairly present the consolidated financial condition and results of
operations of the General Partner as of such date. The General Partner has no
contingent obligations, liabilities for taxes or other outstanding financial
obligations which are material in the aggregate, except as disclosed in such
statements, information and data.
7.14 Factual Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the General Partner to the
Lenders for purposes of or in connection with this Agreement and the other Loan
Documents and the transactions
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contemplated therein is, and all other such factual information hereafter
furnished by or on behalf of the General Partner to the Lenders will be, true
and accurate in all material respects (taken as a whole) on the date as of
which such information is dated or certified and not incomplete by omitting to
state any material fact necessary to make such information (taken as a whole)
not misleading at such time.
7.15 ERISA. (i) General Partner is not an entity deemed to hold
"plan assets" within the meaning of ERISA or any regulations promulgated
thereunder of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan within the meaning of Section
4975 of the Code, and (ii) the execution of this Agreement and the transactions
contemplated hereunder do not give rise to a prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code.
7.16 Taxes. All required tax returns have been filed by the
General Partner with the appropriate authorities except to the extent that
extensions of time to file have been requested, granted and have not expired or
except to the extent such taxes are being contested in good faith and for which
adequate reserves, in accordance with GAAP, are being maintained.
7.17 No Brokers. General Partner has dealt with no brokers in
connection with this Facility, and no brokerage fees or commissions are payable
by or to any Person in connection with this Agreement or the Advances. Lender
shall not be responsible for the payment of any fees or commissions to any
broker and General Partner shall indemnify, defend and hold Lender harmless
from and against any claims, liabilities, obligations, damages, costs and
expenses (including reasonable attorneys' fees and disbursements) made against
or incurred by Lender as a result of claims made or actions instituted by any
broker or Person claiming by, through or under the General Partner in
connection with the Facility.
7.18 Subsidiaries. Schedule 7.18 hereto contains an accurate list
of all of the presently existing Subsidiaries of General Partner, setting forth
their respective jurisdictions of formation, the percentage of their respective
Capital Stock owned by it or its Subsidiaries and the Properties owned by them.
All of the issued and outstanding shares of Capital Stock of such Subsidiaries
have been duly authorized and issued and are fully paid and non-assessable.
7.19 Status. General Partner is a corporation listed and in good
standing on the New York Stock Exchange ("NYSE") and is currently qualified as
a real estate investment trust under the Code.
General Partner agrees that all of its representations and warranties
set forth in Article VII of this Agreement and elsewhere in this Agreement are
true on the Agreement Execution Date, and will be true on each Effective Date
in all material respects (except with respect to matters which have been
disclosed in writing to and approved by the Majority Lenders), and will be true
in all material respects (except with respect to matters which have been
disclosed in writing to and approved by the Majority Lenders) upon each request
for
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disbursement of an Advance, provided that the General Partner shall only be
obligated to update any Schedules referred to in this Article VII on a
quarterly basis, along with the quarterly financial statements required under
Section 8.2(i), unless any change otherwise required to be disclosed could
reasonably be expected to have a Material Adverse Effect. Each request for
disbursement hereunder shall constitute a reaffirmation of such representations
and warranties as deemed modified in accordance with the disclosures made and
approved, as aforesaid, as of the date of such request and disbursement.
ARTICLE VIII
AFFIRMATIVE COVENANTS
The Borrower (and the General Partner, if expressly included in
Sections contained in this Article) covenant and agree that so long as the
Commitment of any Lender shall remain available and until the full and final
payment of all Obligations incurred under the Loan Documents they will:
8.1 Notices. Promptly give written notice to Administrative Agent
(who will promptly send such notice to Lenders) of:
(a) all litigation or arbitration proceedings affecting
the Borrower, the General Partner or any Subsidiary where the amount claimed is
$5,000,000 or more;
(b) any Default or Event of Default, specifying the
nature and the period of existence thereof and what action has been taken or
been proposed to be taken with respect thereto;
(c) all claims filed against any property owned by the
Borrower or the General Partner which, if adversely determined, could have a
Material Adverse Effect on the ability of the Borrower or the General Partner
to meet any of their obligations under the Loan Documents;
(d) the occurrence of any other event which might have a
Material Adverse Effect or cause a Material Adverse Financial Change on or with
respect to the Borrower or the General Partner;
(e) any Reportable Event or any "prohibited transaction"
(as such term is defined in Section 4975 of the Code) in connection with any
Plan or any trust created thereunder, which may, singly or in the aggregate
materially impair the ability of the Borrower or the General Partner to repay
any of its obligations under the Loan Documents, describing the nature of each
such event and the action, if any, the Borrower or the General Partner, as the
case may be, proposes to take with respect thereto;
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(f) any notice from any federal, state, local or foreign
authority regarding any Hazardous Material, asbestos, or other environmental
condition, proceeding, order, claim or violation affecting any of the
Properties.
8.2 Financial Statements, Reports, Etc. The Borrower and the
General Partner each shall maintain, for itself and each Subsidiary, a system
of accounting established and administered in accordance with GAAP, and shall
furnish to the Lenders:
(i) quarterly financial statements
(including a balance sheet and income statement) and related
reports in form and substance satisfactory to the Lenders not
later than 45 days after the end of each of the first three
fiscal quarters, and not later than ninety (90) days after the
end of each fiscal year, all certified by Borrower's chief
financial officer or chief accounting officer, including a
statement of Funds From Operations for the General Partner,
calculation of the financial covenants described below, a
description of Unencumbered Assets, a listing of capital
expenditures (in the level of detail as currently disclosed in
Borrower's "Supplemental Information"), a report listing and
describing all newly acquired Properties, including their cash
flow, cost and secured or unsecured Indebtedness assumed in
connection with such acquisition, if any, summary Property
information for all Properties, including, without limitation,
their Property Operating Income, occupancy rates, square
footage, property type and date acquired or built, and such
other information as may be requested to evaluate the
quarterly compliance certificate delivered as provided below;
(ii) copies of all Form 10Ks, 10Qs, 8Ks,
and any other public information filed with the Securities
Exchange Commission by Borrower or the General Partner once a
quarter simultaneously with delivering the compliance
certificate described below, along with any other materials
distributed to the shareholders of the General Partner or the
partners of the Borrower from time to time, including a copy
of the General Partner's annual report. To the extent any of
such reports contains information required under the other
subsections of this Section 8.2, the information need not be
furnished separately under the other subsections;
(iii) not later than forty-five (45) days
after the end of the first three fiscal quarters, and not
later than ninety (90) days after the end of the fiscal year,
a report certified by the entity's chief financial officer or
chief accounting officer, containing Property Operating Income
from individual properties owned by the Borrower or a
Wholly-Owned Subsidiary and included as Unencumbered Assets.
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(iv) Not later than forty-five (45) days
after the end of each of the first three fiscal quarters, and
not later than ninety (90) days after the end of the fiscal
year, a compliance certificate in substantially the form of
Exhibit H hereto signed by the Borrower's chief financial
officer or chief accounting officer confirming that Borrower
is in compliance with all of the covenants of the Loan
Documents, showing the calculations and computations necessary
to determine compliance with the financial covenants contained
in this Agreement (including such schedules and backup
information as may be necessary to demonstrate such
compliance) and stating that to such officer's best knowledge,
there is no other Default or Event of Default exists, or if
any Default or Event of Default exists, stating the nature and
status thereof;
(v) (a) As soon as possible and in any
event within 10 Business Days after the Borrower knows that
any Reportable Event has occurred with respect to any Plan, a
statement, signed by the chief financial officer of Borrower,
describing said Reportable Event and within 20 days after such
Reportable Event, a statement signed by such chief financial
officer describing the action which Borrower proposes to take
with respect thereto; and (b) within 10 Business Days of
receipt, any notice from the Internal Revenue Service, PBGC or
Department of Labor with respect to a Plan regarding any
excise tax, proposed termination of a Plan, prohibited
transaction or fiduciary violation under ERISA or the Code
which could result in any liability to Borrower or any member
of the Controlled Group in excess of $100,000; and (c) within
10 Business Days of filing, any Form 5500 filed by Borrower
with respect to a Plan, or any member of the Controlled Group
which includes a qualified accountant's opinion.
(vi) As soon as possible and in any event
within 30 days after receipt by the Borrower, a copy of (a)
any notice or claim to the effect that the Borrower or any of
its Subsidiaries is or may be liable to any Person as a result
of the release by such entity, or any of its Subsidiaries, or
any other Person of any toxic or hazardous waste or substance
into the environment, and (b) any notice alleging any
violation of any federal, state or local environmental, health
or safety law or regulation by the Borrower or any of its
Subsidiaries or Investment Affiliates, which, in either case,
could be reasonably likely to have a Material Adverse Effect;
(vii) Promptly upon the furnishing thereof
to the shareholders of the Borrower, copies of all financial
statements, reports and proxy statements so furnished;
(viii) Promptly upon the distribution
thereof to the press or the public, copies of all press
releases;
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(ix) As soon as possible, and in any
event within 10 days after the Borrower knows of any fire or
other casualty or any pending or threatened condemnation or
eminent domain proceeding with respect to all or any material
portion of any Unencumbered Asset, a statement signed by the
Chief Financial Officer of Borrower, describing such fire,
casualty or condemnation and the action Borrower intends to
take with respect thereto; and
(x) Such other information (including,
without limitation, non-financial information) as the
Administrative Agent or any Lender may from time to time
reasonably request.
8.3 Existence and Conduct of Operations. Except as permitted
herein, maintain and preserve its existence and all rights, privileges and
franchises now enjoyed and necessary for the operation of its business,
including remaining in good standing in each jurisdiction in which business is
currently operated. The Borrower and the General Partner shall carry on and
conduct their respective businesses in substantially the same manner and in
substantially the same fields of enterprise as presently conducted. The
Borrower will do, and will cause each of its Subsidiaries to do, all things
necessary to remain duly incorporated and/or duly qualified, validly existing
and in good standing as a real estate investment trust, corporation, general
partnership, limited liability company or limited partnership, as the case may
be, in its jurisdiction of incorporation/formation. The Borrower will maintain
all requisite authority to conduct its business in each jurisdiction in which
the Properties are located and, except where the failure to be so qualified
would not have a Material Adverse Effect, in each jurisdiction required to
carry on and conduct its businesses in substantially the same manner as it is
presently conducted, and, specifically, neither the Borrower nor its
Subsidiaries will undertake any business other than the acquisition,
development, ownership, management, operation and leasing of
warehouse/industrial properties and ancillary businesses specifically related
thereto, except that the Borrower and its Subsidiaries and Investment
Affiliates may invest in other assets subject to the certain limitations
contained herein with respect to the following specified categories of assets:
(i) Unimproved Land; (ii) other property holdings (excluding cash, Cash
Equivalents, non-industrial Properties and Indebtedness of any Subsidiary to
the Borrower); (iii) stock holdings other than in Subsidiaries; (iv) mortgages;
and (v) joint ventures and partnerships. The total investment in any one of
categories (i), (ii), (iii), (iv) or (v) shall not exceed 10% of Implied
Capitalization Value and the total investment in all the foregoing investment
categories in the aggregate shall be less than or equal to twenty percent (20%)
of Market Value Net Worth. In addition to the foregoing restrictions,
investments in Unimproved Land which is not adjacent to existing improvements
and not under active planning for near term development as evidenced to the
reasonable satisfaction of Administrative Agent shall not exceed in the
aggregate 5% of Implied Capitalization Value, and no single industrial property
shall exceed 5% of Implied Capitalization Value. For the purposes of this
Section 8.3, all investments shall be valued in accordance with GAAP.
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8.4 Maintenance of Properties. Maintain, preserve, protect and
keep the Properties in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements, normal wear and tear
excepted.
8.5 Insurance. Provide a certificate of insurance from all
insurance carriers who maintain policies with respect to the Properties within
thirty (30) days after the end of each fiscal year, evidencing that the
insurance required to be furnished to Lenders pursuant to Section 5.1(j) hereof
is in full force and effect. Borrower shall timely pay, or cause to be paid,
all premiums on all insurance policies required under this Agreement from time
to time. Borrower shall promptly notify its insurance carrier or agent
therefor (with a copy of such notification being provided simultaneously to
Administrative Agent) if there is any occurrence which, under the terms of any
insurance policy then in effect with respect to the Properties, requires such
notification.
8.6 Payment of Obligations. Pay all taxes, assessments,
governmental charges and other obligations when due, except such as may be
contested in good faith or as to which a bona fide dispute may exist, and for
which adequate reserves have been provided in accordance with sound accounting
principles used by Borrower on the date hereof.
8.7 Compliance with Laws. Comply in all material respects with
all applicable laws, rules, regulations, orders and directions of any
governmental authority having jurisdiction over Borrower, General Partner, or
any of their respective businesses.
8.8 Adequate Books. Maintain adequate books, accounts and records
in order to provide financial statements in accordance with GAAP and, if
requested by any Lender, permit employees or representatives of such Lender at
any reasonable time and upon reasonable notice to inspect and audit the
properties of Borrower and of the Consolidated Operating Partnership, and to
examine or audit the inventory, books, accounts and records of each of them and
make copies and memoranda thereof.
8.9 ERISA. Comply in all material respects with all requirements
of ERISA applicable to it with respect to each Plan.
8.10 Maintenance of Status. General Partner shall at all times (i)
remain as a corporation listed and in good standing on the New York Stock
Exchange (NYSE), and (ii) take all steps maintain General Partner's status as a
real estate investment trust in compliance with all applicable provisions of
the Code (unless otherwise consented to by the Supermajority Lenders).
8.11 Use of Proceeds. Use the proceeds of the Facility for the
general business purposes of the Borrower, including without limitation working
capital needs, closing costs, and interim funding for property acquisitions and
construction of new industrial properties, and/or payment of other debts and
obligations of Borrower.
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8.12 Pre-Acquisition Environmental Investigations. Cause to be
prepared prior to the acquisition of each project that it intends to acquire an
environmental report pursuant to a standard scope of work attached as Exhibit I
hereto and made a part hereof.
8.13 Distributions. Provided there is no Monetary Default then
existing and provided there is not an Event of Default relating to a breach of
the financial covenants contained in Section 9.10 below, the General Partner
may make distributions to its shareholders provided that the aggregate amount
of distributions in any period of four consecutive fiscal quarters is not in
excess of 95% of its Funds From Operations for such period. Notwithstanding
the foregoing, unless at the time of distribution there is a Monetary Default,
the General Partner shall be permitted at all times to distribute whatever
amount is necessary to maintain its tax status as a real estate investment
trust.
ARTICLE IX
NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as the Commitment
shall remain available and until full and final payment of all obligations
incurred under the Loan Documents, without the prior written consent of the
Majority Lenders (or the Administrative Agent or a greater Percentage of the
Lenders, if so expressly provided), it will not, and the General Partner will
not and, in the case of Sections 9.5 and 9.11, Borrower's Subsidiaries will
not:
9.1 Change in Business. Engage in any business activities or
operations other than (i) the ownership and operation of the Properties, or
(ii) other business functions and transactions related to the financing,
ownership, acquisition, development and/or management of bulk warehouse and
light industrial properties, or without obtaining the prior written consent of
the Supermajority Lenders materially change the nature of the use of the
Properties.
9.2 Change of Management of Properties. Change the management of
the Properties, except that any Affiliate of Borrower or the General Partner
shall be permitted to manage any of the Properties.
9.3 Change of Borrower Ownership or Financing Partnership
Ownership. Allow (i) the General Partner to own less than fifty-one percent
(51%) of the partnership interests in Borrower or 100% of the stock in FIMC and
in FISC, (ii) the Borrower to be controlled by a Person other than the General
Partner, (iii) any pledge of, other encumbrance on, or conversion to limited
partnership interests of, any of the general partnership interests in the
Borrower, or (iv) any pledge, hypothecation, encumbrance, transfer or other
change in the ownership or the partnership interests in the Financing
Partnership or Mortgage Partnership (except for the pledge of such partnership
interests to the REMIC Lender).
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9.4 Use of Proceeds. Apply or permit to be applied any proceeds
of any Advance directly or indirectly, to the funding of any purchase
of, or offer for, any share of capital stock of any publicly held corporation
unless the board of directors of such corporation has consented to such offer
prior to any public announcements relating thereto and the Lenders have
consented to such use of the proceeds of the Facility.
9.5 Transfers of Unencumbered Assets. Transfer or otherwise
dispose of (other than the creation or incurrence of Liens permitted
under Section 9.6) an Unencumbered Asset without the prior written consent of
the Majority Lenders if the Value of such Unencumbered Asset, together with the
Value of any other Unencumbered Assets which have been transferred or disposed
of during the then-current fiscal quarter and the immediately preceding three
(3) full fiscal quarters, would exceed twenty percent (20%) of the sum of the
Value of Unencumbered Assets at the beginning of such period plus the increase
therein as a result of all Projects added to Unencumbered Assets during such
period.
9.6 Liens. Create, incur, or suffer to exist (or permit any of its
Subsidiaries to create, incur, or suffer to exist) any Lien in, of or on the
Property of any member of the Consolidated Operating Partnership other than:
(i) Liens for taxes, assessments or
governmental charges or levies on their Property if the same
shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves shall
have been set aside on their books;
(ii) Liens which arise by operation of law,
such as carriers', warehousemen's, landlords', materialmen and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 30 days past due or which are being
contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its
books;
(iii) Liens arising out of pledges or deposits
under worker's compensation laws, unemployment insurance, old
age pensions, or other social security or retirement benefits,
or similar legislation;
(iv) Utility easements, building restrictions,
zoning restrictions, easements and such other encumbrances or
charges against real property as are of a nature generally
existing with respect to properties of a similar character and
which do not in any material way affect the marketability of
the same or interfere with the use thereof in the business of
the Borrower or its Subsidiaries;
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(v) Liens of any Subsidiary in favor of the
Borrower or General Partner; and
(vi) Liens arising in connection with any
Indebtedness permitted hereunder to the extent such Liens will
not result in a violation of any of the provisions of this
Agreement.
Liens permitted pursuant to this Section 9.6 shall be deemed to be "Permitted
Liens".
9.7 Regulation U. Use any of the proceeds of the Facility to
purchase or carry any Margin Stock.
9.8 Indebtedness and Cash Flow Covenants. Permit or suffer:
(a) as of December 31, 1997 or the last day of any fiscal
quarter ending thereafter, the ratio of (A) the sum of (1) EBITDA of the
Consolidated Operating Partnership plus (2) interest income (other than any
interest income from assets being used to support Defeased REMIC Debt) deducted
in calculating such EBITDA of the Consolidated Operating Partnership to (B) the
sum of (1) Interest Expense plus (2) Senior Preferred Stock Expense of the
General Partner for such fiscal quarter to be less than 2.0 to 1.0, based on
annualizing the results of such fiscal quarter;
(b) as of any day, Consolidated Total Indebtedness to exceed
50% of Implied Capitalization Value of the Consolidated Operating Partnership;
(c) as of any day, the ratio of Value of Unencumbered Assets
to outstanding Consolidated Senior Unsecured Debt to be less than either
(i) 1.65 to 1.0 for any fiscal quarter not ending during a Rating Period or
(ii) 1.5 to 1.0 for any fiscal quarter ending during a Rating Period;
(d) as of December 31, 1997 or the last day of any fiscal
quarter ending thereafter, the ratio obtained by dividing (a) Property Operating
Income from Unencumbered Assets qualifying for inclusion in the calculation of
Value of Unencumbered Assets for such quarter by (b) Debt Service on all
Consolidated Senior Unsecured Debt for such quarter to be less than 1.75 to 1;
(e) as of any day, the sum of (1) Consolidated Secured Debt
plus (2) Senior Preferred Stock of the General Partner to exceed 35% of Implied
Capitalization Value of the Consolidated Operating Partnership. Senior Preferred
Stock of the General Partner will be dropped from this ratio when the PS
Guaranty is eliminated, as evidenced by the Administrative Agent's receipt of
satisfactory evidence thereof;
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(f) as of December 31, 1997 or the last day of any fiscal
quarter ending thereafter, Market Value Net Worth of the Consolidated Operating
Partnership to be less than the sum of (i) $622,672,000 plus (ii) seventy-five
percent (75%) of the aggregate proceeds received (net of customary related fees
and expenses) in connection with any equity offering (including any issuance of
shares in the General Partner or units in the Borrower) after September30,
1997.
To the extent the Consolidated Operating Partnership has Defeased REMIC Debt,
both the underlying debt and interest payable thereon and the financial assets
used to defease such debt and interest earned thereon shall be excluded from
calculations of the foregoing financial covenants.
9.9 Mergers and Dispositions. Enter into any merger,
consolidation, reorganization or liquidation or transfer or otherwise
dispose of all or a substantial portion of its properties, except for:such
transactions that occur between wholly-owned Subsidiaries; transactions where
Borrower and the General Partner are the surviving entities and there is no
change in business conducted or loss of an investment grade credit rating, and
no Default or Event of Default under the Loan Documents results from such
transaction; or as otherwise approved in advance by the Lenders. Borrower will
notify the Administrative Agent (who will promptly notify Lenders) of any
acquisitions, dispositions, mergers or asset purchases involving assets valued
in excess of 5% of the Consolidated Operating Partnership's then-current Market
Value Net Worth and certify compliance with covenants after giving effect to
such proposed acquisition, disposition, merger, or asset purchase regardless of
whether any consent is required.
9.10 Negative Pledge. Borrower agrees that throughout the term of
this Facility, no "negative pledge" on any Project then included in Unencumbered
Assets restricting Borrower's (or wholly-owned Subsidiary's) right to sell or
encumber such Project shall be given to any other lender or creditor or, if such
a "negative pledge" is given, the Project affected shall be immediately excluded
from Unencumbered Assets.
9.11 Maximum Revenue from Single Tenant. Permit the rent revenue
(exclusive of tenant reimbursements) received from a single tenant during any
quarter (as annualized), to exceed 7.5% of the Consolidated Operating
Partnership's total rent revenue (as annualized) as of the last day of such
quarter, except where the Consolidated Operating Partnership's noncompliance
arises from a merger of tenants or other causes outside of the Consolidated
Operating Partnership's control.
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ARTICLE X
DEFAULTS
The occurrence of any one or more of the following events shall
constitute an Event of Default:
10.1 Nonpayment of Principal. The Borrower fails to pay any
principal portion of the Obligations when due, whether on the Maturity Date or
otherwise.
10.2 Certain Covenants. The Borrower, General Partner and/or
Consolidated Operating Partnership, as the case may be, is not in compliance
with any one or more of Sections 8.10, 8.13, 9.3, 9.4, 9.5, 9.6, 9.8, 9.9, 9.10
or 9.11 hereof.
10.3 Nonpayment of Interest and Other Obligations. The Borrower
fails to pay any interest or other portion of the Obligations, other
than payments of principal, and such failure continues for a period of five (5)
days after the date such payment is due.
10.4 Cross Default. Any monetary default occurs (after giving
effect to any applicable cure period) under any other Indebtedness
(which includes liability under Guaranties) of Borrower or the General Partner,
singly or in the aggregate, in excess of Seven Million Five Hundred Thousand
Dollars ($7,500,000), other than (i) Indebtedness arising from the purchase of
personal property or the provision of services, the amount of which is being
contested by Borrower or (ii) Indebtedness (other than the REMIC Loan which is
the subject of Section 10.13 below) which is "non-recourse", i.e., which is not
recoverable by the creditor thereof from the general assets of the Borrower,
the General Partner or any of their Affiliates, but is limited to the proceeds
of certain real estate, improvements and related personal property.
10.5 Loan Documents. Any Loan Document is not in full force and
effect or a default has occurred and is continuing thereunder after giving
effect to any cure or grace period in any such document.
10.6 Representation or Warranty. At any time or times hereafter any
representation or warranty set forth in Articles VI or VII of this Agreement or
in any other Loan Document or in any statement, report or certificate now or
hereafter made by the Borrower or the General Partner to the Lenders or the
Administrative Agent is not true and correct in any material respect.
10.7 Covenants, Agreements and Other Conditions. The Borrower or
the General Partner fails to perform or observe any of the other
covenants, agreements and conditions contained in Articles VIII and IX (except
for Sections 8.10, 8.13, 9.3, 9.4, 9.5, 9.6, 9.8, 9.9, 9.10 or 9.11 hereof) and
elsewhere in this Agreement or any of the other Loan Documents in
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accordance with the terms hereof or thereof, not specifically referred to
herein, and such Default continues unremedied for a period of thirty (30) days
after written notice from Administrative Agent, provided, however, that if such
Default is susceptible of cure but cannot by the use of reasonable efforts be
cured within such thirty (30) day period, such Default shall not constitute an
Event of Default under this Section 10.7 so long as (i) the Borrower or the
General Partner, as the case may be, has commenced a cure within such thirty-day
period and (ii) thereafter, Borrower or General Partner, as the case may be, is
proceeding to cure such default continuously and diligently and in a manner
reasonably satisfactory to Lenders and (iii) such default is cured not later
than sixty (60) days after the expiration of such thirty (30) day period.
10.8 No Longer General Partner. The General Partner shall no
longer be the sole general partner of Borrower.
10.9 Material Adverse Financial Change. The Borrower or General
Partner has suffered a Material Adverse Financial Change or is Insolvent.
10.10 Bankruptcy.
(a) The General Partner, the Borrower or any Subsidiary having
more than $10,000,000 of Equity Value (as defined below) shall (i) have an order
for relief entered with respect to it under the Federal bankruptcy laws as now
or hereafter in effect, (ii) make an assignment for the benefit of creditors,
(iii) apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for it or
any substantial portion of its Property, (iv) institute any proceeding seeking
an order for relief under the Federal bankruptcy laws as now or hereafter in
effect or seeking to adjudicate it as a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed against
it, (v) take any corporate action to authorize or effect any of the foregoing
actions set forth in this Section 10.10(a), (vi) fail to contest in good faith
any appointment or proceeding described in Section 10.10(b) or (vii) not pay, or
admit in writing its inability to pay, its debts generally as they become due.
As used herein, the term "Equity Value" of a Subsidiary shall mean (1) Property
Operating Income of such Subsidiary's Properties owned as of the Agreement
Execution Date capitalized at a 10.5% rate, plus (2) the purchase price of any
of such Subsidiary's Properties acquired after the Agreement Execution Date less
(3) any Indebtedness of such Subsidiary;
(b) A receiver, trustee, examiner, liquidator or similar
official shall be appointed for the General Partner, Borrower or any Subsidiary
having more than $10,000,000 of Equity Value or any substantial portion of any
of their Properties, or a proceeding described in Section 10.10(a)(iv) shall be
instituted against the General Partner, the Borrower or any
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such Subsidiary and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of sixty (60) consecutive days.
10.11 Legal Proceedings. Borrower or General Partner is enjoined,
restrained or in any way prevented by any court order or judgment or if a notice
of lien, levy, or assessment is filed of record with respect to all or any part
of the Properties by any governmental department, office or agency, which could
materially adversely affect the performance of the obligations of such parties
hereunder or under the Loan Documents, as the case may be, or if any proceeding
is filed or commenced seeking to enjoin, restrain or in any way prevent the
foregoing parties from conducting all or a substantial part of their respective
business affairs and failure to vacate, stay, dismiss, set aside or remedy the
same within ninety (90) days after the occurrence thereof.
10.12 ERISA. Borrower or General Partner is deemed to hold "plan
assets" within the meaning of ERISA or any regulations promulgated thereunder of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan (within the meaning of Section 4975 of the
Code).
10.13 REMIC Loan. Any "Event of Default" (as such term is defined
in the REMIC Loan Agreement) occurs under the REMIC Loan Agreement with
respect to the REMIC Loan.
10.14 Failure to Satisfy Judgments. The General Partner, the
Borrower or any of its Subsidiaries shall fail within sixty (60) days
to pay, bond or otherwise discharge any judgments or orders for the payment of
money in an amount which, when added to all other judgments or orders
outstanding against the General Partner, the Borrower or any Subsidiary would
exceed $10,000,000 in the aggregate, which have not been stayed on appeal or
otherwise appropriately contested in good faith, unless the liability is
insured against and the insurer has not challenged coverage of such liability.
10.15 Environmental Remediation. Failure to remediate within the
time period required by law or governmental order, (or within a
reasonable time in light of the nature of the problem if no specific time period
is so established), environmental problems in violation of applicable law
related to Properties of Borrower and/or its Subsidiaries where the estimated
cost of remediation is in the aggregate in excess of $20,000,000, in each case
after all administrative hearings and appeals have been concluded.
ARTICLE XI
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ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
11.1 Acceleration.
If any Event of Default described in Section 10.10 hereof
occurs, the obligation of the Lenders to make Advances and of the Issuing Bank
to issue Facility Letters of Credit hereunder shall automatically terminate and
the Obligations shall immediately become due and payable. If any other Event of
Default described in Article X hereof occurs, such obligation to make Advances
and to issue Facility Letters of Credit shall be terminated and at the election
of the Majority Lenders, the Obligations may be declared to be due and payable.
In addition to the foregoing, following the occurrence of an
Event of Default and so long as any Facility Letter of Credit has not been fully
drawn and has not been cancelled or expired by its terms, upon demand by the
Majority Lenders the Borrower shall deposit in the Letter of Credit Collateral
Account cash in an amount equal to the aggregate undrawn face amount of all
outstanding Facility Letters of Credit and all fees and other amounts due or
which may become due with respect thereto. The Borrower shall have no control
over funds in the Letter of Credit Collateral Account, which funds shall be
invested by the Administrative Agent from time to time in its discretion in
certificates of deposit of First Chicago having a maturity not exceeding thirty
(30) days. Such funds shall be promptly applied by the Administrative Agent to
reimburse the Issuing Bank for drafts drawn from time to time under the Facility
Letters of Credit and to pay any fees or other amounts due with respect thereto.
Such funds, if any, remaining in the Letter of Credit Collateral Account
following the payment of all Obligations in full shall, unless the
Administrative Agent is otherwise directed by a court of competent jurisdiction,
be promptly paid over to the Borrower.
11.2 Preservation of Rights; Amendments. No delay or omission of
the Lenders in exercising any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of an Advance notwithstanding the
existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Advance shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Administrative Agent and the number of Lenders required hereunder
and then only to the extent in such writing specifically set forth. All
remedies contained in the Loan Documents or by law afforded shall be cumulative
and all shall be available to the Lenders until the Obligations have been paid
in full.
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ARTICLE XII
THE ADMINISTRATIVE AGENT
12.1 Appointment. First Chicago is hereby appointed Administrative
Agent hereunder and under each other Loan Document, and each of the Lenders
authorizes the Administrative Agent to act as the agent of such Lender. The
Administrative Agent agrees to act as such upon the express conditions contained
in this Article XII. The Administrative Agent shall not have a fiduciary
relationship in respect of any Lender by reason of this Agreement, except to the
extent the Administrative Agent acts as an agent with respect to the receipt or
payment of funds hereunder.
12.2 Powers. The Administrative Agent shall have and may exercise
such powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
12.3 General Immunity. Neither the Administrative Agent (in its
capacity as Administrative Agent) nor any of its directors, officers, agents or
employees shall be liable to the Borrower, the Lenders or any Lender for any
action taken or omitted to be taken by it or them hereunder or under any other
Loan Document or in connection herewith or therewith, except for its or their
own gross negligence or willful misconduct. Subject to the express terms hereof,
the Administrative Agent will, unless otherwise instructed as described in
Section 12.5, endeavor to administer the Facility in substantially the same
manner as it administers similar credit facilities held for its own account.
12.4 No Responsibility for Loans, Recitals, etc. Neither the
Administrative Agent (in its capacity as Administrative Agent) nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document; (iii) the satisfaction of any
condition specified in Article V, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith.
12.5 Action on Instructions of Lenders. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Majority Lenders, Supermajority Lenders or all
Lenders, as the case may be, and such instructions and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders and on
all holders
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of Notes. The Administrative Agent shall be fully justified in
failing or refusing to take any action hereunder and under any other Loan
Document unless it shall first be indemnified to its satisfaction by the Lenders
pro rata against any and all liability, cost and expense that it may incur by
reason of taking or continuing to take any such action.
12.6 Employment of Administrative Agents and Counsel. The
Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other Loan Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders, except as to money
or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to advice of counsel
concerning all matters pertaining to the agency hereby created and its duties
hereunder and under any other Loan Document.
12.7 Reliance on Documents; Counsel. The Administrative Agent shall
be entitled to rely upon any Note, notice, consent, certificate, affidavit,
letter, telegram, statement, paper or document believed by it to be genuine
and correct and to have been signed or sent by the proper person or persons,
and, in respect to legal matters, upon the opinion of outside counsel selected
by the Administrative Agent.
12.8 Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
accordance with their respective Percentages (i) for any amounts not reimbursed
by the Borrower for which the Administrative Agent is entitled to reimbursement
by the Borrower under the Loan Documents, (ii) for any other reasonable expenses
incurred by the Administrative Agent on behalf of the Lenders, in connection
with the preparation, execution, delivery, administration and enforcement of the
Loan Documents, if not paid by Borrower, and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Administrative Agent (in its capacity as
Administrative Agent and not as a Lender) in any way relating to or arising out
of the Loan Documents or any other document delivered in connection therewith or
the transactions contemplated thereby, or the enforcement of any of the terms
thereof or of any such other documents, provided that no Lender shall be liable
for any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Administrative Agent.
12.9 Rights as a Lender. With respect to the Commitment, Advances
made by it and the Note issued to it, the Administrative Agent shall
have the same rights and powers hereunder and under any other Loan Document as
any Lender and may exercise the same as though it were not the Administrative
Agent, and the term "Lender" or "Lenders" shall, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity. The
Administrative Agent, in its individual capacity, may accept deposits from, lend
money to, and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those
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contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person.
12.10 Commitment as a Lender. First Chicago and UBS each agrees to
maintain at all times a Commitment of at least 8.34% of the Aggregate Commitment
so long as First Chicago remains as Administrative Agent; provided, that the
foregoing agreement of First Chicago and UBS shall not apply at any time
following a Monetary Default or Event of Default (irrespective of whether such
Monetary Default or Event of Default subsequently is waived).
12.11 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
12.12 Successor Administrative Agent. Each Lender agrees that First
Chicago shall serve as Administrative Agent at all times during the term of this
Facility, except that First Chicago may resign as Administrative Agent in the
event (x) First Chicago and Borrower shall mutually agree in writing or (y) an
Event of Default shall occur under the Loan Documents (irrespective of whether
such Event of Default subsequently is waived), or (z) First Chicago shall
determine, in its sole reasonable discretion, that because of its other banking
relationships with Borrower and/or Borrower's Affiliates at the time of such
decision First Chicago's resignation as Administrative Agent would be necessary
in order to avoid creating an appearance of impropriety on the part of First
Chicago. First Chicago (or any successor Administrative Agent) may be removed as
Administrative Agent by written notice received by Administrative Agent from all
of the other Lenders (i) at any time with cause (i.e., a breach by First Chicago
(or any successor Administrative Agent) of its duties as Administrative Agent
hereunder), or (ii) without cause if First Chicago (or any successor
Administrative Agent) assigns a portion of First Chicago's (or such successor
Administrative Agent's) then applicable Commitment in an amount such that
following such assignment First Chicago's (or such successor Administrative
Agent's) then remaining Commitment is less than the then applicable Commitment
of any other Lender hereunder. Upon any such resignation or removal, UBS shall
be the successor Administrative Agent (unless objected to by the Majority
Lenders) or, if UBS declines or is so objected to, the Majority Lenders shall
have the right to appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Majority Lenders and shall have accepted such
appointment within thirty days after the retiring Administrative Agent's giving
notice of resignation, then the retiring Administrative Agent may appoint, on
behalf of the
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Borrower and the Lenders, a successor Administrative Agent. Such
successor Administrative Agent shall be a commercial bank having capital and
retained earnings of at least $100,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent (including the right to receive any fees for performing
such duties which accrue thereafter), and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and under the
other Loan Documents. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article XII shall
continue in effect for its benefit and that of the other Lenders in respect of
any actions taken or omitted to be taken by it while it was acting as the
Administrative Agent hereunder and under the other Loan Documents.
12.13 Notice of Defaults. If a Lender becomes aware of a Default
or Event of Default, such Lender shall notify the Administrative Agent of such
fact. Upon receipt of such notice that a Default or Event of Default has
occurred, the Administrative Agent shall notify each of the Lenders of such
fact.
12.14 Requests for Approval. If the Administrative Agent requests
in writing the consent or approval of a Lender, such Lender shall respond and
either approve or disapprove definitively in writing to the Administrative Agent
within ten Business Days (or sooner if such notice specifies a shorter period,
but in no event less than five Business Days for responses based on
Administrative Agent's good faith determination that circumstances exist
warranting its request for an earlier response) after such written request from
the Administrative Agent. If the Lender does not so respond, that Lender shall
be deemed to have approved the request. Upon request, the Administrative Agent
shall notify the Lenders which Lenders, if any, failed to respond to a request
for approval.
12.15 Copies of Documents. Administrative Agent shall promptly
deliver to each of the Lenders copies of all notices of default and
other formal notices sent or received and according to Section 15.1 of this
Agreement. Administrative Agent shall deliver to Lenders within 15 Business
Days following receipt, copies of all financial statements, certificates and
notices received regarding the General Partner's ratings except to the extent
such items are required to be furnished directly to the Lenders by Borrower
hereunder. Within fifteen Business Days after a request by a Lender to the
Administrative Agent for other documents furnished to the Administrative Agent
by the Borrower, the Administrative Agent shall provide copies of such
documents to such Lender except where this Agreement obligates Administrative
Agent to provide copies in a shorter period of time.
12.16 Defaulting Lenders. At such time as a Lender becomes a
Defaulting Lender, such Defaulting Lender's right to vote on matters
which are subject to the consent or approval of the Majority or Supermajority
Lenders, such Defaulting Lender or all Lenders shall be immediately suspended
until such time as the Lender is no longer a Defaulting Lender. If a
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Defaulting Lender has failed to fund its Percentage of any Advance and until
such time as such Defaulting Lender subsequently funds its Percentage of such
Advance, all Obligations owing to such Defaulting Lender hereunder shall be
subordinated in right of payment, as provided in the following sentence, to the
prior payment in full of all principal of, interest on and fees relating to the
Loans funded by the other Lenders in connection with any such Advance in which
the Defaulting Lender has not funded its Percentage (such principal, interest
and fees being referred to as "Senior Loans" for the purposes of this section).
All amounts paid by the Borrower and otherwise due to be applied to the
Obligations owing to such Defaulting Lender pursuant to the terms hereof shall
be distributed by the Administrative Agent to the other Lenders in accordance
with their respective Percentages (recalculated for the purposes hereof to
exclude the Defaulting Lender) until all Senior Loans have been paid in full. At
that point, the "Defaulting Lender" shall no longer be deemed a Defaulting
Lender. After the Senior Loans have been paid in full equitable adjustments will
be made in connection with future payments by the Borrower to the extent a
portion of the Senior Loans had been repaid with amounts that otherwise would
have been distributed to a Defaulting Lender but for the operation of this
Section 12.16. This provision governs only the relationship among the
Administrative Agent, each Defaulting Lender and the other Lenders; nothing
hereunder shall limit the obligation of the Borrower to repay all Loans in
accordance with the terms of this Agreement. The provisions of this Section
12.16 shall apply and be effective regardless of whether a Default occurs and is
continuing, and notwithstanding (i) any other provision of this Agreement to the
contrary, (ii) any instruction of the Borrower as to its desired application of
payments or (iii) the suspension of such Defaulting Lender's right to vote on
matters as provided above.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 Successors and Assigns.
The terms and provisions of the Loan Documents shall be
binding upon and inure to the benefit of Borrower and the Lenders and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights or obligations under the Loan Documents without the
consent of all the Lenders and any assignment by any Lender must be made in
compliance with Section 13.3. The Administrative Agent may treat the payee of
any Note as the owner thereof for all purposes hereof unless and until such
payee complies with Section 13.3 in the case of an assignment thereof or, in the
case of any other transfer, a written notice of the transfer is filed with the
Administrative Agent. Any assignee or transferee of a Note agrees by acceptance
thereof to be bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person who at the time of making such
request or giving such authority or consent is the holder of any Note, shall be
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conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
13.2 Participations.
13.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("Participants") participating interests in any Advance owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or
any other interest of such Lender under the Loan Documents. In the
event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, such
Lender shall remain the holder of any such Note for all purposes under
the Loan Documents, all amounts payable by Borrower under this
Agreement shall be determined as if such Lender had not sold such
participating interests, and Borrower and the Administrative Agent and
the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under
the Loan Documents.
13.2.2 Voting Rights. Each Lender shall retain the sole right
to vote its Percentage of the Aggregate Commitment, without the consent
of any Participant, for the approval or disapproval of any amendment,
modification or waiver of any provision of the Loan Documents, provided
that such Lender may grant such Participant the right to approve any
amendment, modification or waiver which forgives principal, interest or
fees or reduces the interest rate or fees payable hereunder, postpones
any date fixed for any regularly-scheduled payment of principal of or
interest on the Obligations, or extends the Maturity Date.
13.3 Assignments.
13.3.1 Permitted Assignments. Subject to the provisions of
Section 12.10 above with respect to First Chicago and UBS, any Lender
may, with the prior written consent of Administrative Agent and
Borrower (which consents shall not be unreasonably withheld or
delayed), in accordance with applicable law, at any time assign to one
or more banks or other entities (collectively, "Purchasers") all or any
part of its rights and obligations under the Loan Documents, except
that no consent of Borrower shall be required if an Event of Default
has occurred and is continuing and that no consent of Administrative
Agent or Borrower shall ever be required for (i) any assignment to a
Person directly or indirectly controlling, controlled by or under
direct or indirect common control with the assigning Lender or (ii) the
pledge or assignment by a Lender of such Lender's Note and other rights
under the Loan Documents to any Federal Reserve Bank in accordance with
applicable law. Such assignments and
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assumptions shall be substantially in the form of Exhibit J hereto. The
Borrower shall execute any and all documents which are customarily
required by such Lender (including, without limitation, a replacement
promissory note or notes in the forms provided hereunder) in connection
with any such assignment, but Borrower shall not be obligated to pay
any fees and expenses incurred by any Lender in connection with any
assignment pursuant to this Section. Any Lender selling all or any part
of its rights and obligation hereunder in a transaction requiring the
consent of the Administrative Agent shall pay to the Administrative
Agent a fee of $3,500.00 per assignee to reimburse Administrative Agent
for its involvement in such assignment.
13.3.2 Effect; Effective Date of Assignment. Upon delivery to
the Administrative Agent of a notice of assignment executed by the
assigning Lender and the Purchaser, such assignment shall become
effective on the effective date specified in such notice of assignment.
The notice of assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the
purchase of the Commitment and the Loan under the applicable assignment
agreement are "plan assets" as defined under ERISA and that the rights
and interests of the Purchaser in and under the Loan Documents will not
be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to
this Agreement and any other Loan Document executed by the Lenders and
shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto,
and no further consent or action by Borrower, the Lenders or the
Administrative Agent shall be required to release the transferor Lender
with respect to the percentage of the Commitment and Advances assigned
to such Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 13.3.2, the transferor Lender, the
Administrative Agent and Borrower shall make appropriate arrangements
so that replacement Notes are issued to such transferor Lender and new
Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their
respective Commitments, as adjusted pursuant to such assignment.
13.4 Dissemination of Information. Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information in such
Lender's possession concerning the creditworthiness of Borrower and General
Partner. Each Transferee shall agree in writing to keep confidential any such
information which is not publicly available.
13.5 Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with all applicable provisions of the Code with respect to
withholding and other tax matters.
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ARTICLE XIV
GENERAL PROVISIONS
14.1 Survival of Representations. All representations and
warranties contained in this Agreement shall survive delivery of the
Notes and the making of the Advances herein contemplated.
14.2 Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, no Lender shall be obligated to extend credit
to the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
14.3 Taxes. Any recording and other taxes (excluding franchise,
income or similar taxes) or other similar assessments or charges payable or
ruled payable by any governmental authority incurred in connection with the
consummation of the transactions contemplated by this Agreement shall be paid by
the Borrower, together with interest and penalties, if any.
14.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
14.5 No Third Party Beneficiaries. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
14.6 Expenses; Indemnification. Subject to the provisions of this
Agreement, Borrower will pay (a) all out-of-pocket costs and expenses incurred
by the Administrative Agent and the Arrangers (including the reasonable fees,
out-of-pocket expenses and other reasonable expenses of counsel, which counsel
may be employees of Administrative Agent) in connection with the preparation,
execution and delivery of this Agreement, the Notes, the Loan Documents and any
other agreements or documents referred to herein or therein and any amendments
thereto, (b) all out-of-pocket costs and expenses incurred by the Administrative
Agent and the Lenders (including the reasonable fees, out-of-pocket expenses and
other reasonable expenses of counsel to the Administrative Agent and the
Lenders, which counsel may be employees of Administrative Agent or the Lenders)
in connection with the enforcement and protection of the rights of the Lenders
under this Agreement, the Notes, the Loan Documents or any other agreement or
document referred to herein or therein, and (c) all reasonable and customary
costs and expenses of periodic audits by the Administrative Agent's personnel of
the Borrower's books and records provided that prior to an Event of Default,
Borrower shall be required to pay for only one such audit during any year. The
Borrower further agrees to indemnify the Lenders, their directors, officers and
employees against all losses, claims, damages, penalties, judgments, liabilities
and reasonable expenses (including,
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without limitation, all expenses of litigation or preparation therefor whether
or not the Lenders is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Advance hereunder, except that the
foregoing indemnity shall not apply to a Lender to the extent that any losses,
claims, etc. are the result of such Lender's gross negligence or wilful
misconduct. The obligations of the Borrower under this Section shall survive the
termination of this Agreement.
14.7 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
14.8 Nonliability of the Lenders. The relationship between the
Borrower and the Lenders shall be solely that of borrower and lender.
The Lenders shall not have any fiduciary responsibilities to the Borrower. The
Lenders undertake no responsibility to the Borrower to review or inform the
Borrower of any matter in connection with any phase of the Borrower's business
or operations.
14.9 Choice of Law. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS)
OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS.
14.10 Consent to Jurisdiction. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL
OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE LENDERS TO
BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE LENDERS OR ANY AFFILIATE OF
THE LENDERS INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY
IN A COURT IN CHICAGO, ILLINOIS.
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14.11 Waiver of Jury Trial. THE BORROWER, THE GENERAL PARTNER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
14.12 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights or obligations under the Loan
Documents. Any assignee or transferee of the Notes agrees by acceptance thereof
to be bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the holder of the Notes, shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Notes or of
any note or notes issued in exchange therefor.
14.13 Entire Agreement; Modification of Agreement. The Loan
Documents embody the entire agreement among the Borrower, General Partner,
Administrative Agent, and Lenders and supersede all prior conversations,
agreements, understandings, commitments and term sheets among any or all of
such parties with respect to the subject matter hereof. Any provisions of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower, and Administrative Agent if the
rights or duties of Administrative Agent are affected thereby, and
(a) each of the Lenders if such amendment or waiver
(i) reduces or forgives any payment of principal
or interest on the Obligations or any fees payable by Borrower
to such Lender hereunder; or
(ii) postpones the date fixed for any payment of
principal of or interest on the Obligations or any fees
payable by Borrower to such Lender hereunder; or
(iii) changes the amount of such Lender's
Commitment (other than pursuant to an assignment permitted
under Section 13.3 or a reduction in the Aggregate Commitment
pursuant to Section 2.17 hereof) or the unpaid principal
amount of such Lender's Note; or
(iv) extends the Maturity Date; or
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(v) releases or limits the liability of the
General Partner under the Loan Documents; or
(vi) changes the definition of Majority Lenders
or Supermajority Lenders or modifies any requirement for
consent by each of the Lenders; or
(vii) modifies or waives any covenant contained
in Sections 8.13, 9.3, 9.5, 9.6, 9.8 or 9.10 hereof; or
(b) the Majority Lenders, to the extent expressly provided for
herein; or
(c) the Supermajority Lenders, to the extent expressly
provided for herein and in the case of all other waivers or amendments if no
percentage of Lenders is specified herein.
14.14 Dealings with the Borrower. The Lenders and their affiliates
may accept deposits from, extend credit to and generally engage in any kind of
banking, trust or other business with the Borrower or the General Partner or any
of their Affiliates regardless of the capacity of the Lenders hereunder.
14.15 Set-Off.
(a) If an Event of Default shall have occurred, each Lender
shall have the right, at any time and from time to time without notice to the
Borrower, any such notice being hereby expressly waived, to set-off and to
appropriate or apply any and all deposits of money or property or any other
indebtedness at any time held or owing by such Lender to or for the credit or
the account of the Borrower against and on account of all outstanding
Obligations and all Obligations which from time to time may become due hereunder
and all other obligations and liabilities of the Borrower under this Agreement,
irrespective of whether or not such Lender shall have made any demand hereunder
and whether or not said obligations and liabilities shall have matured.
(b) Each Lender agrees that if it shall, by exercising any
right of set-off or counterclaim or otherwise, receive payment of a proportion
of the aggregate amount of principal, interest or fees due with respect to any
Note held by it which is greater than the proportion received by any other
Lender in respect of the aggregate amount of principal, interest or fees due
with respect to any Note held by such other Lender, the Lender receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Lenders and such other adjustments shall be made as may be
required so that all such payments of principal, interest or Fees with respect
to the Notes held by the Lenders shall be shared by the Lenders pro rata
according to their respective Commitments.
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14.16 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been executed by the
Borrower and each of the Lenders shown on the signature pages hereof.
ARTICLE XV
NOTICES
15.1 Giving Notice. All notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below or at such other address as may be designated by
such party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any notice,
if transmitted by telex or facsimile, shall be deemed given when transmitted
(answerback confirmed in the case of telexes). Notice may be given as follows:
To the Borrower:
First Industrial, L.P.
c/o First Industrial Realty Trust, Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxx
Telecopy: (000) 000-0000
To General Partner:
First Industrial Realty Trust, Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
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Each of the above with a copy to:
Barack Xxxxxxxxxx Xxxxxxxxxx & Xxxxxxx
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
To each Lender:
As shown below the Lenders' signatures.
To the Administrative Agent:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Finance Division
Telecopy: (000) 000-0000
With a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
To the Documentation Agent:
Union Bank of Switzerland,
New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
15.2 Change of Address. Each party may change the address for service
of notice upon it by a notice in writing to the other parties hereto.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
BORROWER: FIRST INDUSTRIAL, L.P.
By: FIRST INDUSTRIAL REALTY
TRUST, INC., its General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Title: Senior Vice President - Capital Markets
---------------------------------------
GENERAL PARTNER: FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Title: Senior Vice President - Capital Markets
---------------------------------------
LENDERS: THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Title: /s/ Vice - President
---------------------------------------
Commitment: $30,000,000
Percentage of
Aggregate Commitment: 10.000000000000%
Address for Notices:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Finance Division
Telephone: 312/000-0000
Telecopy: 312/732-1117
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XXXXXXX XXXX
By: _____________________________________
Title: __________________________________
Commitment: $25,000,000
Percentage of
Aggregate Commitment: 8.333333333333%
Address for Notices:
0000 0xx Xxxxxx, Xxxxx
XxXxxxx Sonat Tower, 9th Floor
Birmingham, Alabama 35203
Attention: Xxxxx Xxxxxxx
Telephone: 205/000-0000
Telecopy: 205/326-4075
BANK OF MONTREAL
By: _____________________________________
Title: __________________________________
Commitment: $30,000,000
Percentage of
Aggregate Commitment: 10.000000000000%
Address for Notices:
000 Xxxxx XxXxxxx Xxxxxx, 00 Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone: 312/000-0000
Telecopy: 312/750-4352
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COMERICA BANK
By: _____________________________________
Title: __________________________________
Commitment: $20,000,000
Percentage of
Aggregate Commitment: 6.666666666667%
Address for Notices:
000 Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
Telephone: 313/000-0000
Telecopy: 313/222-9295
COMMERZBANK AG
By: _____________________________________
Title: __________________________________
Commitment: $25,000,000
Percentage of
Aggregate Commitment: 8.333333333333%
Address for Notices:
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: 212/000-0000
Telecopy: 212/266-7530
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DRESDNER BANK AG NEW YORK AND GRAND
CAYMAN BRANCHES
By: _____________________________________
Title: __________________________________
Commitment: $20,000,000
Percentage of
Aggregate Commitment: 6.666666666667%
Address for Notices:
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx, Vice President
Telephone: 000-000-0000
Telecopy: 312/444-1305
U.S. BANK NATIONAL ASSOCIATION, F/K/A AND
D/B/A FIRST BANK NATIONAL ASSOCIATION
By: _____________________________________
Title: __________________________________
Commitment: $25,000,000
Percentage of
Aggregate Commitment: 8.333333333333%
Address for Notices:
U.S. Bank Place
000 Xxxxxx Xxxxxx Xxxxx
(MPSP0802)
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telephone: 612/000-0000
Telecopy: 612/973-0830
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FIRST UNION NATIONAL BANK
By: ________________________________________
Title: _____________________________________
Commitment: $20,000,000
Percentage of
Aggregate Commitment: 6.666666666667%
Address for Notices:
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxxx
Telephone: 704/000-0000
Telecopy: 704/383-6205
KEYBANK NATIONAL ASSOCIATION
By: ________________________________________
Title: _____________________________________
Commitment: $20,000,000
Percentage of
Aggregate Commitment: 6.666666666667%
Address for Notices:
Commercial Real Estate Division
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telephone: 312/000-0000
Telecopy: 312/251-0687
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00
XXXXXXX XXXXXXXX XXXX
By: _____________________________________
Title: __________________________________
Commitment: $15,000,000
Percentage of
Aggregate Commitment: 5.000000000000%
Address for Notices:
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx
Telephone: 312/000-0000
Telecopy: 312/904-6467
THE NORTHERN TRUST COMPANY
By: _____________________________________
Title: __________________________________
Commitment: $20,000,000
Percentage of
Aggregate Commitment: 6.666666666667%
Address for Notices:
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: 312/000-0000
Telecopy: 312/444-7028
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90
THE SUMITOMO BANK, LIMITED
By: _____________________________________
Title: __________________________________
Commitment: $20,000,000
Percentage of
Aggregate Commitment: 6.666666666667%
Address for Notices:
000 Xxxx Xxxxxx, 0xx Xxxxx
IFD Real Estate Division
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Telephone: 212/000-0000
Telecopy: 212/224-4887
UNION BANK OF SWITZERLAND, NEW YORK
BRANCH
By: _____________________________________
Title: __________________________________
By: _____________________________________
Title: __________________________________
Commitment: $30,000,000
Percentage of
Aggregate Commitment: 10.000000000000%
Address for Notices:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxx
Telephone: 212/000-0000
Telecopy: 212/821-4138
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91
ADMINISTRATIVE AGENT: THE FIRST NATIONAL BANK OF CHICAGO
By: _____________________________________
Title: __________________________________
Address for Notices:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Finance Division
Telephone: 312/000-0000
Telecopy: 312/732-1117
DOCUMENTATION AGENT: UNION BANK OF SWITZERLAND, NEW YORK
BRANCH
By: _____________________________________
Title: __________________________________
By: _____________________________________
Title: __________________________________
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EXHIBIT A
PERCENTAGES
See Percentages on Preceding Signature Pages
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EXHIBIT B-1
FORM OF NOTE
$_________________ _______________, 1997
On or before the Maturity Date, as defined in that certain Unsecured
Revolving Credit Agreement dated as of December 15, 1997 (the "Agreement")
between FIRST INDUSTRIAL, L.P., a Delaware limited partnership ("Borrower"),
First Industrial Realty Trust, Inc., a Maryland corporation, Union Bank of
Switzerland, New York Branch, individually and as Documentation Agent, The First
National Bank of Chicago, a national bank organized under the laws of the United
States of America, individually and as Administrative Agent for the Lenders (as
such terms are defined in the Agreement), and the other Lenders listed on the
signature pages of the Agreement, Borrower promises to pay to the order of
_________________________ (the "Lender"), or its successors and assigns, the
principal sum of AND NO/100 DOLLARS ($__________) or the aggregate
unpaid principal amount of all Loans (other than Competitive Bid Loans) made
by the Lender to the Borrower pursuant to Section2.1 of the Agreement, in
immediately available funds at the office of the Administrative Agent in
Chicago, Illinois, together with interest on the unpaid principal amount
hereof at the rates and on the dates set forth in the Agreement. The Borrower
shall pay this Promissory Note ("Note") in full on or before the Maturity Date
in accordance with the terms of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Advance and the date and amount of each principal
payment hereunder.
This Note is issued pursuant to, and is entitled to the security under
and benefits of, the Agreement and the other Loan Documents, to which Agreement
and Loan Documents, as they may be amended from time to time, reference is
hereby made for, inter alia, a statement of the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
If there is an Event of Default or Default under the Agreement or any
other Loan Document and Lender exercises its remedies provided under the
Agreement and/or any of the Loan Documents, then in addition to all amounts
recoverable by the Lender under such documents, Lender shall be entitled to
receive reasonable attorneys fees and expenses incurred by Lender in exercising
such remedies.
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Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly provided for in the Agreement), and any and all
lack of diligence or delays in collection or enforcement of this Note, and
expressly agree that this Note, or any payment hereunder, may be extended from
time to time, and expressly consent to the release of any party liable for the
obligation secured by this Note, the release of any of the security of this
Note, the acceptance of any other security therefor, or any other indulgence or
forbearance whatsoever, all without notice to any party and without affecting
the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of
the State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
its general partner
By: _______________________________________________________________________
Its: __________________________________________________________________
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PAYMENTS OF PRINCIPAL
Unpaid
Principal Notation
Date Balance Made by
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
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EXHIBIT B-2
FORM OF COMPETITIVE BID NOTE
_______________, 1997
On or before the last day of each "Interest Period" applicable to a
"Competitive Bid Loan", as defined in that certain Unsecured Revolving Credit
Agreement dated as of December 15, 1997 (the "Agreement") between FIRST
INDUSTRIAL, L.P., a Delaware limited partnership ("Borrower"), First Industrial
Realty Trust, Inc., a Maryland corporation, Union Bank of Switzerland, New York
Branch, The First National Bank of Chicago, a national bank organized under the
laws of the United States of America, individually and as Administrative Agent
for the Lenders (as such terms are defined in the Agreement), Borrower promises
to pay to the order of _________________________ (the "Lender"), or its
successors and assigns, the unpaid principal amount of such Competitive Bid Loan
made by the Lender to the Borrower pursuant to Section 2.16 of the Agreement, in
immediately available funds at the office of the Administrative Agent in
Chicago, Illinois, together with interest on the unpaid principal amount hereof
at the rates and on the dates set forth in the Agreement. The Borrower shall pay
any remaining unpaid principal amount of such Competitive Bid Loans under this
Competitive Bid Note ("Note") in full on or before the Maturity Date in
accordance with the terms of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date, amount and due date of each Competitive Bid Loan and the date and
amount of each principal payment hereunder.
This Note is issued pursuant to, and is entitled to the security under
and benefits of, the Agreement and the other Loan Documents, to which Agreement
and Loan Documents, as they may be amended from time to time, reference is
hereby made for, inter alia, a statement of the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
If there is an Event of Default or Default under the Agreement or any
other Loan Document and Lender exercises its remedies provided under the
Agreement and/or any of the Loan Documents, then in addition to all amounts
recoverable by the Lender under such documents, Lender shall be entitled to
receive reasonable attorneys fees and expenses incurred by Lender in exercising
such remedies.
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Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly provided for in the Agreement), and any and all
lack of diligence or delays in collection or enforcement of this Note, and
expressly agree that this Note, or any payment hereunder, may be extended from
time to time, and expressly consent to the release of any party liable for the
obligation secured by this Note, the release of any of the security of this
Note, the acceptance of any other security therefor, or any other indulgence or
forbearance whatsoever, all without notice to any party and without affecting
the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of the
State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
its general partner
By: ________________________________
Its: ____________________________
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PAYMENTS OF PRINCIPAL
Unpaid
Principal Notation
Date Balance Made by
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
-97-
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EXHIBIT C-1
FORM OF COMPETITIVE BID QUOTE REQUEST
(Section 2.16(b))
To: The First National Bank of Chicago,
as administrative agent (the "Agent")
From: First Industrial, L.P. (the "Borrower")
Re: Unsecured Revolving Credit Agreement dated as of December 15,
1997 among the Borrower, First Industrial Realty Trust, Inc.,
the lenders from time to time party thereto, Union Bank of
Switzerland and The First National Bank of Chicago, as Agent for
such lenders (as amended, supplemented or otherwise modified
from time to time through the date hereof, the "Agreement")
1. Capitalized terms used herein have the meanings assigned to them in
the Agreement.
2. We hereby give notice pursuant to Section 2.16(b) of the Agreement
that we request Competitive Bid Quotes for the following proposed Competitive
Bid Loan(s):
Borrowing Date: _______________, 19___
Principal Amount (1) Interest Period 2
3. Such Competitive Bid Quotes should offer [a Competitive LIBOR Margin]
[an Absolute Rate].
----------------
(1) Amount must be at least $10,000,000 and an integral multiple of $1,000,000.
(2) One, two, three or six months (Competitive LIBOR Margin) or up to 180 days
(Absolute Rate), subject to the provisions of the definitions of LIBOR
Interest Period and Absolute Interest Period.
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4. Upon acceptance by the undersigned of any or all of the Competitive
Bid Loans offered by Lenders in response to this request, the undersigned shall
be deemed to affirm as of the Borrowing Date thereof the representations and
warranties made in Article VI of the Agreement.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc., its general
partner
By: ________________________________________
Title: _____________________________________
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EXHIBIT C-2
INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.16(c))
To: Each of the Lenders party to
the Agreement referred to below
From: Invitation for Competitive Bid Quotes to
First Industrial, L.P. (the "Borrower")
Pursuant to Section 2.16(c) of the Unsecured Revolving Credit Agreement
dated as of December 15, 1997 among the Borrower, First Industrial Realty Trust,
Inc., the lenders from time to time party thereto, Union Bank of Switzerland and
The First National Bank of Chicago, as Administrative Agent for such lenders (as
amended, supplemented or otherwise modified from time to time through the date
hereof, the "Agreement"), we are pleased on behalf of the Borrower to invite you
to submit Competitive Bid Quotes to the Borrower for the following proposed
Competitive Bid Loan(s):
Borrowing Date: _______________, 19___
Principal Amount Interest Period
Such Competitive Bid Quotes should offer [a Competitive LIBOR Margin]
[an Absolute Rate]. Your Competitive Bid Quote must comply with Section 2.16(d)
of the Agreement and the foregoing. Capitalized terms used herein have the
meanings assigned to them in the Agreement.
Please respond to this invitation by no later than 9:00 a.m. (Chicago
time) on _______________, 19___.
THE FIRST NATIONAL BANK OF CHICAGO, as
Administrative Agent
By: ________________________________
Title: _____________________________
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EXHIBIT C-3
COMPETITIVE BID QUOTE
(Section 2.16(d))
_______________, 19___
To: The First National Bank of Chicago,
as Administrative Agent
Re: Competitive Bid Quote to First Industrial, L.P.
(the "Borrower")
In response to your invitation on behalf of the Borrower dated
_______________, 19___, we hereby make the following Competitive Bid Quote
pursuant to Section 2.16(d) of the Agreement hereinafter referred to and on the
following terms:
1. Quoting Lender: ____________________________________________________________
2. Person to contact at Quoting Lender: _______________________________________
3. Borrowing Date: ____________________________________________________________
(1)
4. We hereby offer to make Competitive Bid Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
_________________________
(1) As specified in the related Invitation For Competitive Bid Quotes.
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[Competitive
Principal Interest LIBOR [Absolute Minimum
Amount(2) Period(3) Margin(4)] Rate(5)] Amount(6)
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Unsecured
Revolving Credit Agreement dated as of December 15, 1997, among the Borrower,
First Industrial Realty Trust, Inc., the lenders from time to time party
thereto, Union Bank of Switzerland and The First National Bank of Chicago, as
Administrative Agent for such lenders (as amended, supplemented or otherwise
modified from time to time through the date hereof, the "Agreement"),
irrevocably obligates us to make the Competitive Bid Loan(s) for which any
offer(s) are accepted, in whole or in part. Capitalized terms used herein and
not otherwise defined herein shall have their meanings as defined in the
Agreement.
Very truly yours,
[NAME OF LENDER]
By:_______________________________
Title:____________________________
___________
(2) Principal amount bid for each Interest Period may not exceed the principal
amount requested. Buds must be made for at least $10,000,000 and integral
multiples of $1,000,000.
(3) One, two, three or six months or up to 180 days, as specified in the related
Invitation For Competitive Bid Quotes.
(4) Competitive LIBOR Margin for the applicable LIBOR Interest Period. Specify
percentage (rounded to the nearest 1/100 of 1%) and specify whether "PLUS" or
"MINUS".
(5) Specify rate of interest per annum (rounded to the nearest 1/100 of 1%).
(6) Specify minimum amount, if any, which the Borrower may accept (see
Section 2.16(d)(ii)(d)).
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EXHIBIT D
FORM OF GUARANTY
This Guaranty is made as of December 15, 1997, by First Industrial
Realty Trust, Inc., a Maryland corporation ("Guarantor"), to and for the benefit
of Union Bank of Switzerland, New York Branch, The First National Bank of
Chicago, a national banking association, individually ("First Chicago"), and as
administrative agent for itself and the lenders listed on the signature pages of
the Revolving Credit Agreement (as defined below) and their respective
successors and assigns (collectively, "Lender").
RECITALS
A. First Industrial, L.P., a Delaware limited partnership ("Borrower"),
and Guarantor have requested that Lender make an unsecured revolving credit
facility available to Borrower in the aggregate principal amount of up to
$300,000,000 ("Facility").
B. Lender has agreed to make available the Facility to Borrower pursuant
to the terms and conditions set forth in an Unsecured Revolving Credit Agreement
bearing even date herewith between Borrower, the Lenders and Guarantor
("Revolving Credit Agreement"). All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in the
Revolving Credit Agreement.
C. Borrower has executed and delivered to Lender one or more Promissory
Notes each of even date in the aggregate principal amount of $300,000,000 as
evidence of its indebtedness to Lender with respect to the Facility (the
promissory notes described above, together with any amendments or allonges
thereto, or restatements, replacements or renewals thereof, and/or new
promissory notes to new Lenders under the Revolving Credit Agreement, are
collectively referred to herein as the "Note"). Borrower has also executed and
delivered to each Lender a note ("Competitive Loan Note") which evidences any
Competitive Bid Loans which may be made by such Lender under the Revolving
Credit Agreement.
D. Guarantor is the sole general partner of Borrower and, therefore,
Guarantor will derive financial benefit from the Facility evidenced by the Note,
Revolving Credit Agreement and the other Loan Documents. The execution and
delivery of this Guaranty by Guarantor is a condition precedent to the
performance by Lender of its obligations under the Revolving Credit Agreement.
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AGREEMENTS
NOW, THEREFORE, Guarantor, in consideration of the matters described in
the foregoing Recitals, which Recitals are incorporated herein and made a part
hereof, and for other good and valuable consideration, hereby agrees as follows:
1. Guarantor absolutely, unconditionally, and irrevocably guarantees to
Lender:
(a) the full and prompt payment of the principal of and interest
on the Note and/or any Competitive Bid Loan Note when due, whether at
stated maturity, upon acceleration or otherwise, and at all times
thereafter, and the prompt payment of all sums which may now be or may
hereafter become due and owing under the Note, any Competitive Bid Loan
Note, the Revolving Credit Agreement, and the other Loan Documents;
(b) the payment of all Enforcement Costs (as hereinafter defined
in Paragraph 7 hereof); and
(c) the full, complete, and punctual observance, performance,
and satisfaction of all of the obligations, duties, covenants, and
agreements of Borrower under the Revolving Credit Agreement and the Loan
Documents.
All amounts due, debts, liabilities, and payment obligations described in
subparagraphs (a) and (b) of this Paragraph 1 are referred to herein as the
"Facility Indebtedness." All obligations described in subparagraph (c) of this
Paragraph 1 are referred to herein as the "Obligations."
2. In the event of any default by Borrower in making payment of the
Facility Indebtedness, or in performance of the Obligations, as aforesaid, in
each case beyond the expiration of any applicable grace period, Guarantor
agrees, on demand by Lender or the holder of the Note, to pay all the Facility
Indebtedness and to perform all the Obligations as are or then or thereafter
become due and owing or are to be performed under the terms of the Note, any
Competitive Bid Loan Note, the Revolving Credit Agreement and the other Loan
Documents, and to pay any reasonable expenses incurred by Lender in protecting,
preserving, or defending its interest in the Property or in connection with the
Facility or under any of the Loan Documents, including, without limitation, all
reasonable attorneys' fees and costs. Lender shall have the right, at its
option, either before, during or after pursuing any other right or remedy
against Borrower or Guarantor, to perform any and all of the Obligations by or
through any agent, contractor or subcontractor, or any of their agents, of its
selection, all as Lender in its sole discretion deems proper, and Guarantor
shall indemnify and hold Lender free and harmless from and against any and all
loss, damage, cost, expense, injury, or liability Lender may suffer or incur in
connection with the exercise of its rights under this Guaranty or the
performance of the Obligations, except to the extent the same arises as a result
of the gross negligence or wilful misconduct of Lender.
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All of the remedies set forth herein and/or provided by any of the Loan
Documents or law or equity shall be equally available to Lender, and the choice
by Lender of one such alternative over another shall not be subject to question
or challenge by Guarantor or any other person, nor shall any such choice be
asserted as a defense, set-off, or failure to mitigate damages in any action,
proceeding, or counteraction by Lender to recover or seeking any other remedy
under this Guaranty, nor shall such choice preclude Lender from subsequently
electing to exercise a different remedy. The parties have agreed to the
alternative remedies hereinabove specified in part because they recognize that
the choice of remedies in the event of a failure hereunder will necessarily be
and should properly be a matter of business judgment, which the passage of time
and events may or may not prove to have been the best choice to maximize
recovery by Lender at the lowest cost to Borrower and/or Guarantor. It is the
intention of the parties that such choice by Lender be given conclusive effect
regardless of such subsequent developments.
3. Guarantor does hereby waive (i) notice of acceptance of this Guaranty
by Lender and any and all notices and demands of every kind which may be
required to be given by any statute, rule or law, (ii) any defense, right of
set-off or other claim which Guarantor may have against the Borrower or which
Guarantor or Borrower may have against Lender or the holder of the Note or the
holder of any Competitive Bid Loan Note (other than defenses relating to payment
of the Facility Indebtedness or the correctness of any allegation by Lender that
Borrower was in default in the performance of the Obligations),
(iii) presentment for payment, demand for payment (other than as provided for in
Paragraph 2 above), notice of nonpayment (other than as provided for in
Paragraph 2 above) or dishonor, protest and notice of protest, diligence in
collection and any and all formalities which otherwise might be legally required
to charge Guarantor with liability, (iv) any failure by Lender to inform
Guarantor of any facts Lender may now or hereafter know about Borrower, the
Facility, or the transactions contemplated by the Revolving Credit Agreement, it
being understood and agreed that Lender has no duty so to inform and that the
Guarantor is fully responsible for being and remaining informed by the Borrower
of all circumstances bearing on the existence or creation, or the risk of
nonpayment of the Facility Indebtedness or the risk of nonperformance of the
Obligations, and (v) any and all right to cause a marshalling of assets of the
Borrower or any other action by any court or governmental body with respect
thereto, or to cause Lender to proceed against any other security given to
Lender in connection with the Facility Indebtedness or the Obligations. Credit
may be granted or continued from time to time by Lender to Borrower without
notice to or authorization from Guarantor, regardless of the financial or other
condition of the Borrower at the time of any such grant or continuation. Lender
shall have no obligation to disclose or discuss with Guarantor its assessment of
the financial condition of Borrower. Guarantor acknowledges that no
representations of any kind whatsoever have been made by Lender to Guarantor. No
modification or waiver of any of the provisions of this Guaranty shall be
binding upon Lender except as expressly set forth in a writing duly signed and
delivered on behalf of Lender. Guarantor further agrees that any exculpatory
language contained in the Revolving Credit Agreement, the Note and any
Competitive Bid Loan Note
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shall in no event apply to this Guaranty, and will not prevent Lender from
proceeding against Guarantor to enforce this Guaranty.
4. Guarantor further agrees that Guarantor's liability as guarantor shall
in nowise be impaired by any renewals or extensions which may be made from time
to time, with or without the knowledge or consent of Guarantor of the time for
payment of interest or principal under the Note or any Competitive Bid Loan Note
or by any forbearance or delay in collecting interest or principal under the
Note or any Competitive Bid Loan Note, or by any waiver by Lender under the
Revolving Credit Agreement or any other Loan Documents, or by Lender's failure
or election not to pursue any other remedies it may have against Borrower, or by
any change or modification in the Note, Revolving Credit Agreement, any
Competitive Bid Loan Note or any other Loan Documents, or by the acceptance by
Lender of any additional security or any increase, substitution or change
therein, or by the release by Lender of any security or any withdrawal thereof
or decrease therein, or by the application of payments received from any source
to the payment of any obligation other than the Facility Indebtedness, even
though Lender might lawfully have elected to apply such payments to any part or
all of the Facility Indebtedness, it being the intent hereof that Guarantor
shall remain liable as principal for payment of the Facility Indebtedness and
performance of the Obligations until all indebtedness has been paid in full and
the other terms, covenants and conditions of the Revolving Credit Agreement and
other Loan Documents and this Guaranty have been performed, notwithstanding any
act or thing which might otherwise operate as a legal or equitable discharge of
a surety. Guarantor further understands and agrees that Lender may at any time
enter into agreements with Borrower to amend and modify the Note, Revolving
Credit Agreement, any Competitive Bid Loan Note or other Loan Documents, or any
thereof, and may waive or release any provision or provisions of the Note, the
Revolving Credit Agreement, any Competitive Bid Loan Note and other Loan
Documents or any thereof, and, with reference to such instruments, may make and
enter into any such agreement or agreements as Lender and Borrower may deem
proper and desirable, without in any manner impairing this Guaranty or any of
Lender's rights hereunder or any of the Guarantor's obligations hereunder.
5. This is an absolute, unconditional, complete, present and continuing
guaranty of payment and performance and not of collection. Guarantor agrees that
this Guaranty may be enforced by Lender without the necessity at any time of
resorting to or exhausting any other security or collateral given in connection
herewith or with the Note, any Competitive Bid Loan Note, the Revolving Credit
Agreement, or any of the other Loan Documents, or resorting to any other
guaranties, and Guarantor hereby waives the right to require Lender to join
Borrower in any action brought hereunder or to commence any action against or
obtain any judgment against Borrower or to pursue any other remedy or enforce
any other right. Guarantor further agrees that nothing contained herein or
otherwise shall prevent Lender from pursuing concurrently or successively all
rights and remedies available to it at law and/or in equity or under the Note,
Revolving Credit Agreement, any Competitive Bid Loan Note or any other Loan
Documents, and the exercise of any of its rights or the completion of any of its
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remedies shall not constitute a discharge of any of Guarantor's obligations
hereunder, it being the purpose and intent of the Guarantor that the obligations
of such Guarantor hereunder shall be primary, absolute, independent and
unconditional under any and all circumstances whatsoever. Neither 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 any
impairment, modification, change, release or limitation of the liability of
Borrower under the Note, Revolving Credit Agreement, any Competitive Bid Loan
Note or other Loan Documents or by reason of Borrower's bankruptcy or by reason
of any creditor or bankruptcy proceeding instituted by or against Borrower. This
Guaranty shall continue to be effective and be deemed to have continued in
existence or be reinstated (as the case may be) if at any time payment of all or
any part of any sum payable pursuant to the Note, Revolving Credit Agreement,
any Competitive Bid Loan Note or any other Loan Document is rescinded or
otherwise required to be returned by the payee upon the insolvency, bankruptcy,
or reorganization of the payor, all as though such payment to Lender had not
been made, regardless of whether Lender contested the order requiring the return
of such payment. The obligations of Guarantor pursuant to the preceding sentence
shall survive any termination, cancellation, or release of this Guaranty.
6. This Guaranty shall be assignable by Lender to any assignee of all or
a portion of Lender's rights under the Loan Documents.
7. If: (i) this Guaranty, the Note, any Competitive Bid Loan Note, or any
other Loan Document is placed in the hands of an attorney for collection or is
collected through any legal proceeding; (ii) an attorney is retained to
represent Lender in any bankruptcy, reorganization, receivership, or other
proceedings affecting creditors' rights and involving a claim under this
Guaranty, the Note, any Competitive Bid Loan Note, the Revolving Credit
Agreement, or any Loan Document; (iii) an attorney is retained to provide advice
or other representation with respect to the Loan Documents in connection with an
enforcement action or potential enforcement action; or (iv) an attorney is
retained to represent Lender in any other legal proceedings whatsoever in
connection with this Guaranty, the Note, any Competitive Bid Loan Note, the
Revolving Credit Agreement, any of the Loan Documents, or any property subject
thereto (other than any action or proceeding brought by any Lender or
participant against the Administrative Agent (as defined in the Revolving Credit
Agreement) alleging a breach by the Administrative Agent of its duties under the
Loan Documents), then Guarantor shall pay to Lender upon demand all reasonable
attorney's fees, costs and expenses, including, without limitation, court costs,
filing fees, recording costs, expenses of foreclosure, title insurance premiums,
survey costs, minutes of foreclosure, and all other costs and expenses incurred
in connection therewith (all of which are referred to herein as "Enforcement
Costs"), in addition to all other amounts due hereunder.
8. The parties hereto intend that each provision in this Guaranty
comports with all applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Guaranty is found by a
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court of law to be in violation of any applicable local, state or federal
ordinance, statute, law, administrative or judicial decision, or public policy,
and if such court should declare such portion, provision or provisions of this
Guaranty to be illegal, invalid, unlawful, void or unenforceable as written,
then it is the intent of all parties hereto that such portion, provision or
provisions shall be given force to the fullest possible extent that they are
legal, valid and enforceable, that the remainder of this Guaranty shall be
construed as if such illegal, invalid, unlawful, void or unenforceable portion,
provision or provisions were not contained therein, and that the rights,
obligations and interest of Lender or the holder of the Note or any Competitive
Bid Loan Note under the remainder of this Guaranty shall continue in full force
and effect.
9. Any indebtedness of Borrower to Guarantor now or hereafter existing is
hereby subordinated to the Facility Indebtedness. Guarantor agrees that until
the entire Facility Indebtedness has been paid in full, (i) Guarantor will not
seek, accept, or retain for Guarantor's own account, any payment from Borrower
on account of such subordinated debt, and (ii) any such payments to Guarantor on
account of such subordinated debt shall be collected and received by Guarantor
in trust for Lender and shall be paid over to Lender on account of the Facility
Indebtedness without impairing or releasing the obligations of Guarantor
hereunder.
10. Guarantor waives and releases any claim (within the meaning of 11
U.S.C. Section 101) which Guarantor may have against Borrower arising from a
payment made by Guarantor under this Guaranty and agrees not to assert or take
advantage of any subrogation rights of Guarantor or Lender or any right of
Guarantor or Lender to proceed against (i) Borrower for reimbursement, or
(ii) any other guarantor or any collateral security or guaranty or right of
offset held by Lender for the payment of the Facility Indebtedness and
performance of the Obligations, nor shall Guarantor seek or be entitled to seek
any contribution or reimbursement from Borrower or any other guarantor in
respect of payments made by Guarantor hereunder. It is expressly understood that
the waivers and agreements of Guarantor set forth above constitute additional
and cumulative benefits given to Lender for its security and as an inducement
for its extension of credit to Borrower. Nothing contained in this Paragraph 10
is intended to prohibit Guarantor from making all distributions to its
constituent shareholders which are required by law from time to time in order
for Guarantor to maintain its status as a real estate investment trust in
compliance with all applicable provisions of the Code (as defined in the
Revolving Credit Agreement).
11. Any amounts received by Lender from any source on account of any
indebtedness may be applied by Lender toward the payment of such indebtedness,
and in such order of application, as Lender may from time to time elect.
12. The Guarantor hereby submits to personal jurisdiction in the State of
Illinois for the enforcement of this Guaranty and waives any and all personal
rights to object to such jurisdiction for the purposes of litigation to enforce
this Guaranty. Guarantor hereby consents
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to the jurisdiction of either the Circuit Court of Xxxx County, Illinois, or the
United States District Court for the Northern District of Illinois, in any
action, suit, or proceeding which Lender may at any time wish to file in
connection with this Guaranty or any related matter. Guarantor hereby agrees
that an action, suit, or proceeding to enforce this Guaranty may be brought in
any state or federal court in the State of Illinois and hereby waives any
objection which Guarantor may have to the laying of the venue of any such
action, suit, or proceeding in any such court; provided, however, that the
provisions of this Paragraph shall not be deemed to preclude Lender from filing
any such action, suit, or proceeding in any other appropriate forum.
13. All notices and other communications provided to any party hereto
under this Agreement or any other Loan Document shall be in writing or by telex
or by facsimile and addressed or delivered to such party at its address set
forth below or at such other address as may be designated by such party in a
notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid, shall be deemed given when received; any notice, if transmitted
by telex or facsimile, shall be deemed given when transmitted (answerback
confirmed in the case of telexes). Notice may be given as follows:
To the Guarantor:
First Industrial Realty Trust, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
With a copy to:
Barack Xxxxxxxxxx Xxxxxxxxxx & Xxxxxxx
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telecopy: 000-000-0000
To the Lender:
c/o The First National Bank of Chicago, as agent
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Finance Department
Telecopy: (000) 000-0000
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With a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice.
14. This Guaranty shall be binding upon the heirs, executors, legal and
personal representatives, successors and assigns of Guarantor and shall inure to
the benefit of Lender's successors and assigns.
15. This Guaranty shall be construed and enforced under the internal laws
of the State of Illinois.
16. GUARANTOR AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR
ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS GUARANTY AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
IN WITNESS WHEREOF, Guarantor has delivered this Guaranty in the State
of Illinois as of the date first written above.
FIRST INDUSTRIAL REALTY TRUST, INC., a
Maryland corporation
By:__________________________________
Its_________________________________
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XXXXX XX XXXXXXXX )
)SS.
COUNTY OF XXXX )
I, the undersigned, a Notary Public, in and for said County, in the
State aforesaid, DO HEREBY CERTIFY, that ____________,______________ of First
Industrial Realty Trust, Inc., personally known to me to be the same person
whose name is subscribed to the foregoing instrument, appeared before me this
day in person and acknowledged that he signed and delivered the said instrument
as his own free and voluntary act and as the free and voluntary act of said
corporation, for the uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal, this _____ day of December, 1997.
_______________________________
Notary Public
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EXHIBIT E
OPINION OF BORROWER'S COUNSEL
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EXHIBIT F
OPINION OF GENERAL PARTNER'S COUNSEL
Included in Exhibit E
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EXHIBIT G
WIRING INSTRUCTIONS
To: The First National Bank of Chicago,
as Administrative Agent (the "Agent")
under the Credit Agreement Described Below
Re: Unsecured Revolving Credit Agreement, dated as of December 15,
1997 (as amended, modified, renewed or extended from time to
time, the "Agreement"), among First Industrial, L.P. (the
"Borrower"), First Industrial Realty Trust, Inc. ("General
Partner"), The First National Bank of Chicago, individually and
as Administrative Agent, Union Bank of Switzerland, individually
and as Documentation Agent, and the Lenders named therein. Terms
used herein and not otherwise defined shall have the meanings
assigned thereto in the Credit Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Advances or other extensions of credit from time to time until
receipt by the Administrative Agent of a specific written revocation of such
instructions by the Borrower, provided, however, that the Administrative Agent
may otherwise transfer funds as hereafter directed in writing by the Borrower in
accordance with Section 15.1 of the Agreement or based on any telephonic notice
made in accordance with the Agreement.
Facility Identification Number(s)_______________________________________________
Customer/Account Name___________________________________________________________
Transfer Funds To_______________________________________________________________
_________________________________________
_________________________________________
For Account No. ________________________________________________________________
Reference/Attention To__________________________________________________________
Authorized Officer (Customer Representative) Date ________________________
________________________________________________________________________________
___________________________ ___________________________________
(Please Print) Signature
Bank Officer Name Date ______________________________
____________________________ ___________________________________
(Please Print) Signature
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(Deliver Completed Form to Credit Support Staff For Immediate Processing)
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EXHIBIT H
FORM OF COMPLIANCE CERTIFICATE
To: The Administrative Agent and the Lenders
who are parties to the Agreement described below
This Compliance Certificate is furnished pursuant to that certain
Unsecured Revolving Credit Agreement, dated as of December 15, 1997 (as amended,
modified, renewed or extended from time to time, the "Agreement") among First
Industrial, L.P. (the "Borrower"), First Industrial Realty Trust, Inc. (the
"General Partner"), The First National Bank of Chicago, individually and as
Administrative Agent, Union Bank of Switzerland, individually and as
Documentation Agent, and the Lenders named therein. Unless otherwise defined
herein, capitalized terms used in this Compliance Certificate have the meanings
ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected [Chief Financial Officer] [Chief Accounting
Officer] [Controller] of the [Borrower] [General Partner].
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the General Partner, the Borrower and their respective
Subsidiaries and Investment Affiliates during the accounting period covered by
the financial statements attached (or most recently delivered to the
Administrative Agent if none are attached).
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Material Adverse Financial Change, Event of Default or Default during or at
the end of the accounting period covered by the attached financial statements or
as of the date of this Compliance Certificate, except as set forth below.
4. Schedule I (if attached) attached hereto sets forth financial data
and computations and other information evidencing the General Partner's and the
Borrower's compliance with certain covenants of the Agreement, all of which
data, computations and information (or if no Schedule I is attached, the data,
computations and information contained in the most recent Schedule I attached to
a prior Compliance Certificate) are true, complete and correct in all material
respects.
5. The financial statements and reports referred to in Section 8.2(i),
8.2(iii) or 8.2(vii), as the case may be, of the Agreement which are delivered
concurrently with the delivery of this Compliance Certificate, if any, fairly
present in all material respects the consolidated financial condition and
operations of the General Partner, the Borrower and their respective
Subsidiaries at such date and the consolidated results of their operations for
the period then-ended, in accordance with GAAP applied consistently throughout
such period and with prior periods and correctly state the amounts of
Consolidated Total Indebtedness, Consolidated Secured Debt, Consolidated Senior
Unsecured Debt and the Values of all Unencumbered Assets as determined pursuant
to the Agreement.
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Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
The foregoing certifications, together with the computations and
information set forth in Schedule I hereto and the financial statements
delivered with this Compliance Certificate in support hereof, are made and
delivered this _____ day of _______________, 19___.
FIRST INDUSTRIAL, L.P.
By: FIRST INDUSTRIAL REALTY TRUST, INC.,
General Partner
By:__________________________________
Print Name:__________________________
Title:_______________________________
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SCHEDULE I
CALCULATION OF COVENANTS
[QUARTER]
1. Permitted Investments (Section 8.3)
Maximum
Percent of Percent of
Implied Implied
Investment Capitalization Capitalization
Category (i.e. Book Value) Value Value
-------- ----------------- ----- -----
(a) Unimproved Land 10%
(b) other property holdings 10%
(excluding cash, Cash
Equivalents, non-industrial
Properties and Indebtedness
of any Subsidiary to the
Borrower)
(c) stock holdings other than in 10%
Subsidiaries
(d) mortgages 10%
(e) joint ventures and 10%
partnerships
(f) total investments in 20% of Market
(a)-(e) Value Net
Worth
(g) investments in Unimproved 5%
Land not adjacent to existing
improvements and not under
active planning for near term
development as a percentage
of Implied Capitalization
Value
(h) Identify any single industrial property in excess of 5% of Implied
Capitalization Value (If none, insert "none"): _________________________
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2. Dividends (Section 8.13)
(a) Amount paid during most recent quarter ________________
(b) Amount paid during preceding three quarters ________________
(c) Funds From Operation during such four quarter period ________________
(i) GAAP net income for such period ________________
(ii) adjustments to GAAP net income per definition of Funds
From Operation (See Schedule) ________________
(iii) Funds From Operation ________________
TOTAL DIVIDEND PAY OUT RATIO [(A) PLUS (B), DIVIDED BY (C)(III)]
Must be less than or equal to: 95%
3. EBITDA To Interest Expense and Senior Preferred Stock Expense (Section 9.8(a))
(a) EBITDA for the quarter most recently ended ________________
(i) Borrower and its Subsidiaries ________________
(ii) less extraordinary items and gain or loss on sales ________________
(iii) less GAAP income from Investment Affiliate ________________
(iv) Allocable EBITDA of Investment Affiliates
(See Schedule) ________________
(v) EBITDA [(I) MINUS (II) MINUS (III) PLUS (IV)] ________________
(b) Interest income deducted from (a) (other than as to Defeased
REMIC Debt) ________________
(c) Interest Expense for the quarter most recently ended ________________
(i) GAAP interest expense (Borrower and Subsidiaries) ________________
(ii) Capitalized interest not covered by interest reserve ________________
(iii) Interest on Guaranteed Obligations ________________
(iv) Allocable Interest (Investment Affiliates) ________________
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(v) Interest Expense [SUM OF (I)-(IV)] ________________
(d) Senior Preferred Stock Expense (if required) for the quarter
most recently ended ________________
RATIO
[(A)(V) PLUS (B) DIVIDED BY THE SUM OF (C)(V) AND (D)]: ________________
Must be greater than or equal to: 2.0
4. Consolidated Total Indebtedness Ratio (Section 9.8(b))
(a) Consolidated Total Indebtedness (See Schedule) ________________
(b) Implied Capitalization Value ________________
(i) Adjusted EBITDA for the quarter most recently ended ________________
(ii) less Adjusted EBITDA from Preleased Assets Under
Development and from Projects acquired or completed
during quarter ________________
(iii) plus full quarter pro forma adjustment for Projects
acquired or completed during quarter ________________
(iv) annualized (x4) ________________
(v) most recent Korpacz Cap Rate (not less than 9% or
more than 9.5%) ________________ %
(vi) (item (iv) divided by item (v)) ________________
(vii) GAAP value of Preleased Assets Under Development ________________
(viii) GAAP value of those over 270 days in category ________________
(ix) 50% of item (vii) less item (viii) ________________
(x) lesser of 5% of Implied Capitalization Value
or $100,000,000 ________________
(xi) lesser of item (ix) and item (x) ________________
(xii) Unrestricted Cash and Unrestricted Cash Equivalents
(less those used to support Defeased REMIC Debt) ________________
(xiii) first mortgage receivables ________________
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(xiv) 10% of Implied Capitalization Value ________________
(xv) sum of (vi), (xi), (xii) and lesser of (xiii) or (xiv)
is "Implied Capitalization Value" ________________
CONSOLIDATED TOTAL INDEBTEDNESS RATIO [(A) DIVIDED BY (B) EXPRESSED AS A
PERCENTAGE]: ________________
Must be less than or equal to: 50%
5. Value of Unencumbered Assets Ratio (Section 9.8(c))
(a) Value of Unencumbered Assets
(i) Property Operating Income attributable to
Unencumbered Assets owned by Borrower and
wholly-owned Subsidiaries as of end of quarter as
appropriately annualized (including pro forma Property
Operating Income for entire quarter for Unencumbered
Assets acquired during the quarter) (attach schedule
noting Property Operating Income for each
Unencumbered Asset as appropriately annualized)
(ii) most recent Korpacz Cap Rate (not less than 9% or
more than 9.5%) ________________ %
(iii) item (i) divided by item (ii) is "Value of Unencumbered
Assets" ________________
(b) Consolidated Senior Unsecured Debt (provide schedule of
such Debt) ________________
VALUE OF UNENCUMBERED ASSETS RATIO [(A) DIVIDED BY (B)]:
Must be greater than or equal to: 1.65 (or 1.50 if
quarter ended
during a Rating
Period)
6. Property Operating Income Ratio (Section 9.8(d))
(a) Property Operating Income from all Unencumbered Assets
owned for any part of the preceding quarter ________________
(b) Debt Service on Consolidated Senior Unsecured Debt for the
preceding quarter
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(i) Interest Expense (Borrower and Subsidiaries only) ________________
(ii) Regular principal payments (Borrower and Subsidiaries) ________________
(iii) Senior Preferred Stock Expense ________________
(iv) Debt Service [SUM OF (I), (II) AND (III)] ________________
PROPERTY OPERATING INCOME RATIO [(A) DIVIDED BY (B)] ________________
Must be greater than or equal to: 1.75
7. Consolidated Secured Debt and Senior Preferred Stock to Implied
Capitalization Value (Section 9.8(e))
(a) Consolidated Secured Debt
(i) secured Indebtedness of Borrower and Subsidiaries ________________
(ii) unsecured Indebtedness of Subsidiaries in excess of
$5,000,000 ________________
(iii) Consolidated Secured Debt [SUM OF (I) PLUS (II)] ________________
(b) Senior Preferred Stock (excluded after release of PS Guaranty) ________________
(c) Implied Capitalization Value [LINE (XV) IN ITEM 4(B) ABOVE] ________________
(d) (a) plus (b) divided by (c) ________________
Must be less than or equal to: 35%
8. Minimum Market Value Net Worth (Section 9.8(f))
(a) Market Value Net Worth
(i) Implied Capitalization Value
[LINE (XV) IN ITEM 4(B) ABOVE] ________________
(ii) Indebtedness of Borrower and Subsidiaries ________________
(iii) Market Value Net Worth [(I) MINUS (II)] ________________
(b) $622,672,000
(c) product of .75 and net proceeds of stock and unit offerings
since September 30, 1997 ________________
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(d) sum of (b) plus (c) ________________
(a)(iii) must be greater than or equal to (d)
9. Maximum Revenue From a Single Tenant (Section 9.11)
(a) 7.5% of Consolidated Operating Partnership's total rent
revenue as of last day of quarter, annualized ________________
(b) Identify any tenant for which rent revenue (exclusive of tenant
reimbursements) as annualized exceeds amount shown in (a) ________________
10. Transfers of Unencumbered Assets (Section 9.5)
(a) Aggregate Value of all Unencumbered Assets transferred
during measuring period ________________
(b) Aggregate Value of Unencumbered Assets at start of current
measuring period (trailing 4 quarters) ________________
(c) Aggregate Value of Unencumbered Assets added during current
measuring period ________________
(d) 20% of sum of (b) and (c) ________________
Item (a) must be less than or equal to Item (d) ________________
NOTE: To the extent of any inconsistency between the form of this
Compliance Certificate and the terms of the Agreement, the
terms of the Agreement shall prevail.
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EXHIBIT I
SCOPE OF WORK FOR ENVIRONMENTAL INVESTIGATIONS
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EXHIBIT J
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between ________
________________(the "Assignor") and __________________ (the "Assignee") is
dated as of____________, 19 . The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to an Unsecured
Revolving Credit Agreement (which, as it may be amended, modified, renewed or
extended from time to time is herein called the "Credit Agreement") described in
Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement and the other Loan Documents. The aggregate
Commitment (or Loans, if the applicable Commitment has been terminated)
purchased by the Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two (2) Business Days (or such shorter period agreed to by the
Administrative Agent) after a Notice of Assignment substantially in the form of
Exhibit "I" attached hereto has been delivered to the Agent. In no event will
the Effective Date occur if the payments required to be made by the Assignee to
the Assignor on the Effective Date under Sections 4 and 5 hereof are not made on
the proposed Effective Date, unless otherwise agreed to in writing by Assignor
and Assignee. The Assignor will notify the Assignee of the proposed Effective
Date no later than the Business Day prior to the proposed Effective Date. As of
the Effective Date, (i) the Assignee shall have the rights and obligations of a
Lender under the Loan Documents with respect to the rights and obligations
assigned to the Assignee hereunder and (ii) the Assignor shall relinquish its
rights and be released from its corresponding obligations under the Loan
Documents with respect to the rights and obligations assigned to the Assignee
hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Administrative Agent all payments of
principal, interest and fees with respect to the interest assigned hereby. The
Assignee shall advance funds directly to the Administrative Agent with respect
to all Loans and reimbursement payments made on or after the Effective Date with
respect to the interest assigned hereby. [In
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consideration for the sale and assignment of Loans hereunder, (i) the Assignee
shall pay the Assignor, on the Effective Date, an amount equal to the principal
amount of the portion of all Adjusted Corporate Base Rate Loans assigned to the
Assignee hereunder and (ii) with respect to each ratable LIBOR Advance and
Competitive Bid Loan made by the Assignor and assigned to the Assignee hereunder
which is outstanding on the Effective Date, (a) on the last day of the Interest
Period therefor or (b) on such earlier date agreed to by the Assignor and the
Assignee or (c) on the date on which any such Loan either becomes due (by
acceleration or otherwise) or is prepaid (the date as described in the foregoing
clauses (a), (b) or (c) being hereinafter referred to as the "Fixed Due Date"),
the Assignee shall pay the Assignor an amount equal to the principal amount of
the portion of such Loan assigned to the Assignee which is outstanding on the
Fixed Due Date. If the Assignor and the Assignee agree that the applicable Fixed
Due Date for such Loan shall be the Effective Date, they shall agree, solely for
purposes of dividing interest paid by the Borrower on such Loan, to an alternate
interest rate applicable to the portion of such Loan assigned hereunder for the
period from the Effective Date to the end of the related Interest Period (the
"Agreed Interest Rate") and any interest received by the Assignee in excess of
the Agreed Interest Rate, with respect to such Loan for such period, shall be
remitted to the Assignor. In the event a prepayment of any Loan which is
existing on the Effective Date and assigned by the Assignor to the Assignee
hereunder occurs after the Effective Date but before the applicable Fixed Due
Date, the Assignee shall remit to the Assignor any excess of the funding
indemnification amount paid by the Borrower under Section 4.4 of the Credit
Agreement an account of such prepayment with respect to the portion of such Loan
assigned to the Assignee hereunder over the amount which would have been paid if
such prepayment amount were calculated based on the Agreed Interest Rate and
only covered the portion of the Interest Period after the Effective Date. The
Assignee will promptly remit to the Assignor (i) the portion of any principal
payments assigned hereunder and received from the Administrative Agent with
respect to any such Loan prior to its Fixed Due Date and (ii) any amounts of
interest on Loans and fees received from the Administrative Agent which relate
to the portion of the Loans assigned to the Assignee hereunder for periods prior
to the Effective Date, in the case of ratable Adjusted Corporate Base Rate Loans
or Fees, or the Fixed Due Date, in the case of LIBOR Loans and Competitive Bid
Loans, and not previously paid by the Assignee to the Assignor.]* In the event
that either party hereto receives any payment to which the other party hereto is
entitled under this Assignment Agreement, then the party receiving such amount
shall promptly remit it to the other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor
a fee on each day on which a payment of interest or Commitment Fees or Facility
Fees is made under the Credit Agreement with respect to the amounts assigned to
the Assignee hereunder (other than a payment of interest or Commitment Fees or
Facility Fees attributable to the period prior to the Effective Date or, in the
case of LIBOR Loans and Competitive Bid Loans, the Payment Date, which the
Assignee is obligated to deliver to the Assignor pursuant to Section 4 hereof).
The amount of such fee shall be the difference between (i) the interest or fee,
as applicable, paid with respect to the amounts assigned to the Assignee
hereunder and (ii) the interest or fee, as applicable, which would have been
paid with respect to the amounts
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assigned to the Assignee hereunder if each interest rate was calculated at the
rate of % rather than the actual percentage used to calculate the interest
rate paid by the Borrower or if the Commitment Fee or Facility Fee was
calculated at the rate of % rather than the actual percentage used to
calculate the Commitment Fee or Facility Fee paid by the Borrower, as
applicable. In addition, the Assignee agrees to pay ___% of the fee required
to be paid to the Agent in connection with this Assignment Agreement. [THIS
SENTENCE CAN BE REVISED APPROPRIATELY BASED ON HOW THE FEE IS BEING PAID.]
*EACH ASSIGNOR MAY INSERT ITS STANDARD PROVISIONS IN LIEU OF THE PAYMENT TERMS
INCLUDED IN SECTIONS 4 AND 5 OF THIS EXHIBIT.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor nor
any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower, its Subsidiaries or Investment
Affiliates, (vi) the validity, enforceability, perfection, priority, condition,
value or sufficiency of any collateral securing or purporting to secure the
Loans or (vii) any mistake, error of judgment, or action taken or omitted to be
taken in connection with the Loans or the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it
has received a copy of the Credit Agreement and the other Loan Documents,
together with copies of the financial statements requested by the Assignee and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment Agreement, (ii)
agrees that it will, independently and without reliance upon the Administrative
Agent, the Documentation Agent, the Assignor or any other Lender and based on
such documents and information at it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents, (iii) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto, (iv)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender, (v) agrees that its
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payment instructions and notice instructions are as set forth in the attachment
to Schedule 1, (vi) confirms that none of the funds, monies, assets or other
consideration being used to make the purchase and assumption hereunder are "plan
assets" as defined under ERISA and that its rights, benefits and interests in
and under the Loan Documents will not be "plan assets" under ERISA, [AND (VII)
ATTACHES THE FORMS PRESCRIBED BY THE INTERNAL REVENUE SERVICE OF THE UNITED
STATES CERTIFYING THAT THE ASSIGNEE IS ENTITLED TO RECEIVE PAYMENTS UNDER THE
LOAN DOCUMENTS WITHOUT DEDUCTION OR WITHHOLDING OF ANY UNITED STATES FEDERAL
INCOME TAXES].**
**TO BE INSERTED IF THE ASSIGNEE IS NOT INCORPORATED UNDER THE LAWS OF THE
UNITED STATES, OR A STATE THEREOF.
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 13.3.1 of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under Sections 4, 5 and 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage interest specified in Item 3 of Schedule 1
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
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13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:_______________________________
Title:____________________________
____________________________
____________________________
[NAME OF ASSIGNEE]
By:_______________________________
Title:____________________________
____________________________
____________________________
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SCHEDULE 1 TO
ASSIGNMENT AGREEMENT
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: ____________ , 19___
3. Amounts (As of Date of Item 2 above):
a. Aggregate Commitment
(Loans)* under
Credit Agreement $______________
b. Assignee's Percentage
of the Aggregate Commitment
purchased under this
Assignment Agreement** ______________ %
4. Amount of Assignee's Commitment (Loan Amount)*
Purchased under this Assignment Agreement: $_______________
5. Amount of Assignor's Commitment (Loan Amount)
After Purchase under this Assignment Agreement _______________
6. Proposed Effective Date: _______________
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By:_______________________ By:___________________________
Title:____________________ Title:________________________
* If a Commitment has been terminated, insert outstanding Loans in place of
Commitment
** Percentage taken to 10 decimal places
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ATTACHMENT TO SCHEDULE 1 TO
ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must include
notice address and account information for the Assignor and the Assignee
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EXHIBIT "I" TO
ASSIGNMENT AGREEMENT
NOTICE OF ASSIGNMENT
__________ , 19____
To: [NAME OF ADMINISTRATIVE AGENT]
_______________________
_______________________
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Unsecured Revolving Credit Agreement (the "Credit
Agreement") described in Item 1 of Schedule 1 attached hereto ("Schedule 1").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to
the Administrative Agent pursuant to Section 13.3.1 of the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of ________, 19__ (the "Assignment"), pursuant to which,
among other things, the Assignor has sold, assigned, delegated and transferred
to the Assignee, and the Assignee has purchased, accepted and assumed from the
Assignor the percentage interest specified in Item 3 of Schedule 1 of all
outstandings, rights and obligations under the Credit Agreement. From and after
such purchase, the Assignee's Commitment shall be the amount specified in Item
4 of Schedule 1 and the Assignor's Commitment shall be the amount specified in
Item 5 of Schedule 1. The Effective Date of the Assignment shall be the later
of the date specified in Item 5 of Schedule 1 or two (2) Business Days (or such
shorter period as agreed to by the Administrative Agent) after this Notice of
Assignment and any fee required by Section 13.3.1 of the Credit Agreement have
been delivered to the Administrative Agent, provided that the Effective Date
shall not occur if any condition precedent agreed to by the Assignor and the
Assignee or set forth in Section 13 of the Credit Agreement has not been
satisfied.
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4. The Assignor and the Assignee hereby give to the Administrative Agent
notice of the assignment and delegation referred to herein. The Assignor will
confer with the Administrative Agent before the date specified in Item 6 of
Schedule 1 to determine if the Assignment Agreement will become effective on
such date pursuant to Section 3 hereof, and will confer with the Administrative
Agent to determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Administrative Agent if the Assignment
Agreement does not become effective on any proposed Effective Date as a result
of the failure to satisfy the conditions precedent agreed to by the Assignor and
the Assignee. At the request of the Administrative Agent, the Assignor will give
the Administrative Agent written confirmation of the satisfaction of the
conditions precedent.
5. The Assignor or the Assignee shall pay to the Administrative Agent on
or before the Effective Date the processing fee of $3,500 required by
Section 13.3.1 of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the Assignor and the
Assignee request and direct that the Administrative Agent prepare and cause the
Borrower to execute and deliver new Notes or, as appropriate, replacements
notes, to the Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Administrative Agent the original Note
received by it from the Borrower upon its receipt of a new Note in the
appropriate amount.
7. The Assignee advises the Administrative Agent that notice and payment
instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase pursuant
to the Assignment are "plan assets" as defined under ERISA and that its rights,
benefits, and interests in and under the Loan Documents will not be "plan
assets" under ERISA.
9. The Assignee authorizes the Administrative Agent to act as its agent
under the Loan Documents in accordance with the terms thereof. The Assignee
acknowledges that the Administrative Agent has no duty to supply information
with respect to the Borrower or the Loan Documents to the Assignee until the
Assignee becomes a party to the Credit Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By:____________________________ By:_________________________________
Title:_________________________ Title:______________________________
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ACKNOWLEDGED AND CONSENTED TO
BY THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
By:____________________________
Title:_________________________
[ATTACH PHOTOCOPY OF SCHEDULE 1 TO ASSIGNMENT]
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EXHIBIT K
FORM OF DESIGNATION AGREEMENT
Dated _____________, 199__
Reference is made to the Unsecured Revolving Credit Agreement dated as
of December 15, 1997 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement") among First Industrial, L.P., a Delaware
limited partnership (the "Borrower"), First Industrial Realty Trust, Inc., the
Lenders parties thereto, Union Bank of Switzerland, New York Branch, as
Documentation Agent and The First National Bank of Chicago, as Administrative
Agent (the "Administrative Agent") for the Lenders. Terms defined in the Credit
Agreement are used herein with the same meaning.
[NAME OF DESIGNOR] (the "Designor"), [NAME OF DESIGNATED LENDER] (the
"Designee"), the Administrative Agent and the Borrower agree as follows:
1. The Designor hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Competitive Bid Loans pursuant
to Section 2.16 of the Credit Agreement. Any assignment by Designor to Designee
of its rights to make a Competitive Bid Loan pursuant to such Section 2.16 shall
be effective at the time of the funding for such Competitive Bid Loan and not
before such time.
2. Except as set forth in Section 7 below, the Designor makes no
representation or warranty and assumes no responsibility pursuant to this
Designation Agreement with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument and document furnished pursuant
thereto and (b) the financial condition of the Borrower or General Partner or
the performance or observance by the Borrower or General Partner of any of their
respective obligations under any Loan Document or any other instrument or
document furnished pursuant thereto. (It is acknowledged that the Designor may
make representations and warranties of the type described above in other
agreements to which the Designor is a party).
3. The Designee (a) confirms that it has received a copy of each Loan
Document, together with copies of the financial statements referred to in
Section 8.2 of the Credit Agreement and such other documents and information as
it has deemed appropriate to make its own independent credit analysis and
decision to enter into this Designation Agreement, (b) agrees that it will,
independently and without reliance upon the Administrative Agent, the Designor
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 any Loan Document; (c) confirms that it is a Designated
Lender; (d) appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise
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such powers and discretion under any Loan Document as are delegated to
the Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto, and (e) agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of any Loan Document are required to be performed by it as a Lender.
4. The Designee hereby appoints the Designor as the Designee's agent and
attorney in fact, and grants to the Designor an irrevocable power of attorney,
to deliver and receive all communications and notices under the Credit Agreement
and other Loan Documents and to exercise on the Designee's behalf all rights to
vote and to grant and make approvals, waivers, consents or amendment to or under
the Credit Agreement or other Loan Documents. Any document executed by the
Designor on the Designee's behalf in connection with the Credit Agreement or
other Loan Documents shall be binding on the Designee. The Borrower, the
Administrative Agent and each of the Lenders may rely on and are beneficiaries
of the preceding provisions.
5. Following the execution of this Designation Agreement by the Designor
and its Designee, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent and the Borrower. The
effective date for this Designation Agreement (the "Effective Date") shall be
the date of acceptance hereof by the Administrative Agent and the Borrower,
unless otherwise specified on the signature page thereto.
6. The Administrative Agent shall not institute or join any other person
in instituting against the Designee any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding under any federal or
state bankruptcy or similar law, for one year and a day after the Maturity Date.
7. The Borrower shall not institute or join any other person in
instituting against the Designee any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding under any federal or
state bankruptcy or similar law, for one year and a day after the Maturity Date.
8. The Designor unconditionally agrees to pay or reimburse the Designee
and save the Designee harmless against all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed or asserted by any of the
parties to the Loan Documents against the Designee, in its capacity as such, in
any way relating to or arising out of this Designation Agreement or any other
Loan Documents or any action taken or omitted by the Designee hereunder or
thereunder, provided that the Designor shall not be liable for any portion of
such liabilities, obligations, losses, damage, penalties, actions, judgments,
suits, costs, expenses or disbursements if the same results from the Designee's
gross negligence or willful misconduct.
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9. Upon such acceptance and recording of this Designation Agreement by
the Borrower and the Administrative Agent, as of the Effective Date, the
Designee shall be entitled to the benefits of the Credit Agreement with a right
to fund and receive payment of the principal and interest on Competitive Bid
Loans pursuant to Section 2.16 of the Credit Agreement and otherwise with the
rights and obligations of a Participant of Designor thereunder.
10. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of Illinois, without reference to the
provisions thereof regarding conflicts of law.
11. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as of delivery of a manually executed
counterpart of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee, intending to be
legally bound, have caused this Designation Agreement to be executed by their
officers thereunto duly authorized as of the date first above written.
Effective Date(7)_____________________, _______, 199____
[NAME OF DESIGNOR], as Designor
By:_________________________________
Title:______________________________
[NAME OF DESIGNATED LENDER],
as Designee
By:_________________________________
Title:______________________________
_____________
(7) This date should be no earlier than five Business Days after the delivery of
this Designation Agreement to the Administrative Agent.
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Applicable Lending Office (and address
for notices):
[ADDRESS]
Accepted this ____ day of _______________, 199__
[AGENT], as Administrative Agent [FIRST INDUSTRIAL, L.P.]
By: FIRST INDUSTRIAL REALTY
TRUST, INC., its general partner
By:_____________________________ By:__________________________________
Title:__________________________ Title:_____________________________
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SCHEDULE 6.9
LITIGATION (BORROWER)
NONE
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SCHEDULE 6.19
ENVIRONMENTAL COMPLIANCE
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SCHEDULE 6.24
TRADE NAMES
First Industrial (Michigan), Limited Partnership
First Industrial (Minnesota), Limited Partnership
First Industrial (Tennessee), L.P.
First Industrial Realty, Inc.
First Industrial Development Services
First Industrial (Alabama), Limited Partnership
First Industrial, Limited Partnership
First Industrial Realty, Inc.
First Industrial Financing Partnership (Alabama), Limited Partnership
First Industrial Financing Partnership, Limited Partnership
First Industrial Financing Partnership (Minnesota), Limited Partnership
First Industrial Financial Partnership (Wisconsin), Limited Partnership
First Industrial MP, L.P. dba First Industrial Mortgage Partnership, L.P.
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SCHEDULE 6.25
SUBSIDIARIES (BORROWER)
First Industrial Financing Partnership, L.P., a Delaware limited partnership*
First Industrial Pennsylvania, L.P., a Delaware limited partnership*
First Industrial Harrisburg, L.P., a Delaware limited partnership*
First Industrial Securities, L.P., a Delaware limited partnership*
First Industrial Mortgage Partnership, L.P., a Delaware limited partnership*
First Industrial Indianapolis Partnership, L.P., a Delaware limited partnership*
First Industrial Development Services, L.P., a Delaware limited partnership*
FI Development Services Group, L.P., a Delaware limited partnership*
NOTE: For property ownership information, see Exhibit 1 to this Schedule 6.25.
* Borrower owns 99% limited partnership interest in this entity.
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SCHEDULE 6.26
UNENCUMBERED ASSETS
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SCHEDULE 7.8
LITIGATION (GENERAL PARTNER)
NONE
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SCHEDULE 7.18
SUBSIDIARIES (GENERAL PARTNER)
1. FI Development Services Corporation, a Maryland corporation
2. First Industrial Finance Corporation, a Maryland corporation
3. First Industrial Management Corporation, a Maryland corporation
4. FR Acquisitions, Inc., a Maryland corporation
5. First Industrial Pennsylvania Corporation, a Maryland corporation
6. First Industrial Harrisburg Corporation, a Maryland corporation
7. First Industrial Securities Corporation, a Maryland corporation
8. First Industrial Mortgage Corporation, a Maryland corporation
9. First Industrial Indianapolis Corporation, a Maryland corporation
NOTE:
1. Each of these entities is 100% wholly owned by the General Partner.
2. None of these entities owns any properties.
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS..................................................................... 2
1.1 Definitions..................................................................................... 2
1.2 Financial Standards............................................................................. 19
ARTICLE II THE FACILITY........................................................................................ 19
2.1 The Facility.................................................................................... 19
2.2 Principal Payments and Extension Option......................................................... 20
2.3 Requests for Advances; Responsibility for Advances.............................................. 21
2.4 Evidence of Credit Extensions................................................................... 21
2.5 Ratable and Non-Pro Rata Loans.................................................................. 21
2.6 Applicable Margins.............................................................................. 21
2.7 Other Fees...................................................................................... 22
2.8 Minimum Amount of Each Advance.................................................................. 22
2.9 Interest........................................................................................ 22
2.10 Selection of Rate Options and LIBOR Interest Periods............................................ 23
2.11 Method of Payment............................................................................... 25
2.12 Default......................................................................................... 26
2.13 Lending Installations........................................................................... 26
2.14 Non-Receipt of Funds by Administrative Agent.................................................... 26
2.15 Swingline Loans................................................................................. 27
2.16 Competitive Bid Loans........................................................................... 28
2.17 Voluntary Reduction of Aggregate Commitment Amount.............................................. 32
2.18 Application of Moneys Received.................................................................. 32
ARTICLE III THE LETTER OF CREDIT SUBFACILITY................................................................... 33
3.1 Obligation to Issue............................................................................. 33
3.2 Types and Amounts............................................................................... 34
3.3 Conditions...................................................................................... 34
3.4 Procedure for Issuance of Facility Letters of Credit............................................ 35
3.5 Reimbursement Obligations; Duties of Issuing Bank............................................... 36
3.6 Participation................................................................................... 37
3.7 Payment of Reimbursement Obligations............................................................ 38
3.8 Compensation for Facility Letters of Credit..................................................... 39
3.9 Letter of Credit Collateral Account............................................................. 39
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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ARTICLE IV CHANGE IN CIRCUMSTANCES............................................................................. 40
4.1 Yield Protection................................................................................ 40
4.2 Changes in Capital Adequacy Regulations......................................................... 41
4.3 Availability of LIBOR Advances.................................................................. 41
4.4 Funding Indemnification......................................................................... 42
4.5 Lender Statements; Survival of Indemnity........................................................ 42
ARTICLE V CONDITIONS PRECEDENT................................................................................. 42
5.1 Conditions Precedent to Closing................................................................. 42
5.2 Conditions Precedent to Subsequent Advances..................................................... 45
ARTICLE VI REPRESENTATIONS AND WARRANTIES...................................................................... 46
6.1 Existence....................................................................................... 46
6.2 Corporate/Partnership Powers.................................................................... 46
6.3 Power of Officers............................................................................... 46
6.4 Government and Other Approvals.................................................................. 46
6.5 Solvency........................................................................................ 47
6.6 Compliance With Laws............................................................................ 47
6.7 Enforceability of Agreement..................................................................... 47
6.8 Title to Property............................................................................... 47
6.9 Litigation...................................................................................... 48
6.10 Events of Default............................................................................... 48
6.11 Investment Company Act of 1940.................................................................. 48
6.12 Public Utility Holding Company Act.............................................................. 48
6.13 Regulation U.................................................................................... 48
6.14 No Material Adverse Financial Change............................................................ 48
6.15 Financial Information........................................................................... 48
6.16 Factual Information............................................................................. 49
6.17 ERISA........................................................................................... 49
6.18 Taxes........................................................................................... 49
6.19 Environmental Matters........................................................................... 49
6.20 Insurance....................................................................................... 50
6.21 No Brokers...................................................................................... 50
6.22 No Violation of Usury Laws...................................................................... 51
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TABLE OF CONTENTS
(CONTINUED)
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6.23 Not a Foreign Person............................................................................ 51
6.24 No Trade Name................................................................................... 51
6.25 Subsidiaries.................................................................................... 51
6.26 Unencumbered Assets............................................................................. 51
ARTICLE VII ADDITIONAL REPRESENTATIONS AND WARRANTIES.......................................................... 53
7.1 Existence....................................................................................... 53
7.2 Corporate Powers................................................................................ 53
7.3 Power of Officers............................................................................... 53
7.4 Government and Other Approvals.................................................................. 54
7.5 Compliance With Laws............................................................................ 54
7.6 Enforceability of Agreement..................................................................... 54
7.7 Liens; Consents................................................................................. 54
7.8 Litigation...................................................................................... 54
7.9 Events of Default............................................................................... 54
7.10 Investment Company Act of 1940.................................................................. 54
7.11 Public Utility Holding Company Act.............................................................. 55
7.12 No Material Adverse Financial Change............................................................ 55
7.13 Financial Information........................................................................... 55
7.14 Factual Information............................................................................. 55
7.15 ERISA........................................................................................... 55
7.16 Taxes........................................................................................... 55
7.17 No Brokers...................................................................................... 55
7.18 Subsidiaries.................................................................................... 56
7.19 Status.......................................................................................... 56
ARTICLE VIII AFFIRMATIVE COVENANTS............................................................................. 56
8.1 Notices......................................................................................... 56
8.2 Financial Statements, Reports, Etc.............................................................. 57
8.3 Existence and Conduct of Operations............................................................. 59
8.4 Maintenance of Properties....................................................................... 60
8.5 Insurance....................................................................................... 60
8.6 Payment of Obligations.......................................................................... 60
8.7 Compliance with Laws............................................................................ 60
8.8 Adequate Books.................................................................................. 60
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(CONTINUED)
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8.9 ERISA........................................................................................... 61
8.10 Maintenance of Status........................................................................... 61
8.11 Use of Proceeds................................................................................. 61
8.12 Pre-Acquisition Environmental Investigations.................................................... 61
ARTICLE IX NEGATIVE COVENANTS.................................................................................. 61
9.1 Change in Business.............................................................................. 61
9.2 Change of Management of Properties.............................................................. 62
9.3 Change of Borrower Ownership or Financing Partnership Ownership................................. 62
9.4 Use of Proceeds................................................................................. 62
9.5 Transfers of Unencumbered Assets................................................................ 62
9.6 Liens........................................................................................... 62
9.7 Regulation U.................................................................................... 63
9.8 Indebtedness and Cash Flow Covenants............................................................ 63
9.9 Mergers and Dispositions........................................................................ 64
9.10 Negative Pledge................................................................................. 64
9.11 Maximum Revenue from Single Tenant.............................................................. 65
ARTICLE X DEFAULTS............................................................................................. 65
10.1 Nonpayment of Principal......................................................................... 65
10.2 Certain Covenants............................................................................... 65
10.3 Nonpayment of Interest and Other Obligations.................................................... 65
10.4 Cross Default................................................................................... 65
10.5 Loan Documents.................................................................................. 65
10.6 Representation or Warranty...................................................................... 66
10.7 Covenants, Agreements and Other Conditions...................................................... 66
10.8 No Longer General Partner....................................................................... 66
10.9 Material Adverse Financial Change............................................................... 66
10.10 Bankruptcy...................................................................................... 66
10.11 Legal Proceedings............................................................................... 67
10.12 ERISA........................................................................................... 67
10.13 REMIC Loan...................................................................................... 67
10.14 Failure to Satisfy Judgments.................................................................... 67
10.15 Environmental Remediation....................................................................... 67
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(CONTINUED)
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ARTICLE XI ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES...................................................... 68
11.1 Acceleration.................................................................................... 68
11.2 Preservation of Rights; Amendments.............................................................. 68
ARTICLE XII THE ADMINISTRATIVE AGENT........................................................................... 69
12.1 Appointment..................................................................................... 69
12.2 Powers.......................................................................................... 69
12.3 General Immunity................................................................................ 69
12.4 No Responsibility for Loans, Recitals, etc...................................................... 69
12.5 Action on Instructions of Lenders............................................................... 69
12.6 Employment of Administrative Agents and Counsel................................................. 70
12.7 Reliance on Documents; Counsel.................................................................. 70
12.8 Administrative Agent's Reimbursement and Indemnification........................................ 70
12.9 Rights as a Lender.............................................................................. 70
12.10 Commitment as a Lender.......................................................................... 71
12.11 Lender Credit Decision.......................................................................... 71
12.12 Successor Administrative Agent.................................................................. 71
12.13 Notice of Defaults.............................................................................. 72
12.14 Requests for Approval........................................................................... 72
12.15 Copies of Documents............................................................................. 72
12.16 Defaulting Lenders.............................................................................. 72
ARTICLE XIII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS................................................. 73
13.1 Successors and Assigns.......................................................................... 73
13.2 Participations.................................................................................. 74
13.2.1 Permitted Participants; Effect.................................................................. 74
13.2.2 Voting Rights................................................................................... 74
13.3 Assignments..................................................................................... 74
13.3.1 Permitted Assignments........................................................................... 74
13.3.2 Effect; Effective Date of Assignment............................................................ 75
13.4 Dissemination of Information.................................................................... 75
13.5 Tax Treatment................................................................................... 75
ARTICLE XIV GENERAL PROVISIONS................................................................................. 76
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(CONTINUED)
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14.1 Survival of Representations..................................................................... 76
14.2 Governmental Regulation......................................................................... 76
14.3 Taxes........................................................................................... 76
14.4 Headings........................................................................................ 76
14.5 No Third Party Beneficiaries.................................................................... 76
14.6 Expenses; Indemnification....................................................................... 76
14.7 Severability of Provisions...................................................................... 77
14.8 Nonliability of the Lenders..................................................................... 77
14.9 Choice of Law................................................................................... 77
14.10 Consent to Jurisdiction......................................................................... 77
14.11 Waiver of Jury Trial............................................................................ 78
14.12 Successors and Assigns.......................................................................... 78
14.13 Entire Agreement; Modification of Agreement..................................................... 78
14.14 Dealings with the Borrower...................................................................... 79
14.15 Set-Off......................................................................................... 79
14.16 Counterparts.................................................................................... 79
ARTICLE XV NOTICES............................................................................................. 80
15.1 Giving Notice................................................................................... 80
15.2 Change of Address............................................................................... 81
EXHIBITS
--------
A - Percentages
B-1 - Form of Note
B-2 - Form of Competitive Bid Note
C-1 - Form of Competitive Bid Quote Request
C-2 - Invitation for Competitive Bid Quotes
C-3 - Competitive Bid Quote
D - Form of Guaranty
E - Opinion of Borrower's Counsel
F - Opinion of General Partner's Counsel
G - Wiring Instructions
H - Form of Compliance Certificate
I - Scope of Work for Environmental Investigations
-vi-
153
TABLE OF CONTENTS
(CONTINUED)
PAGE
J - Form of Assignment Agreement
K - Form of Designation Agreement
SCHEDULES
---------
6.9 Litigation (Borrower)
6.19 Environmental Compliance
6.24 Trade Names
6.25 Subsidiaries (Borrower)
6.26 Unencumbered Assets
7.8 Litigation (General Partner)
7.18 Subsidiaries (General Partner)
-vii-
