Exhibit 4.2
AMENDED AND RESTATED LINE OF CREDIT
LOAN AGREEMENT
among
CATELLUS DEVELOPMENT CORPORATION,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Arranger and Administrative Agent,
THE FIRST NATIONAL BANK OF CHICAGO
as Documentation Agent,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Dated as of October 28, 1998
TABLE OF CONTENTS
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Page
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ARTICLE 1. DEFINITIONS............................................. 2
1.1 Certain Defined Terms.............................. 2
1.2 Other Interpretive Provisions...................... 22
1.2.1 Use of Defined Terms............................ 22
1.2.2 Certain Common Terms............................ 23
(a) The Agreement................................... 23
(b) Documents....................................... 23
(c) Including....................................... 23
(d) Performance..................................... 23
(e) Contracts....................................... 23
(f) Laws............................................ 23
(g) Captions........................................ 24
(h) Independence of Provisions...................... 24
(i) Exhibits........................................ 24
1.2.3 Accounting Principles........................... 24
(a) Accounting Terms................................ 24
(b) Fiscal Periods.................................. 24
ARTICLE 2. THE CREDITS............................................. 24
2.1 Amounts and Terms of Commitments.................. 24
2.2 Loan Accounts..................................... 25
2.3 Procedure for Borrowing........................... 26
2.4 Conversion and Continuation Elections............. 27
2.5 Optional Prepayments.............................. 28
2.6 Mandatory Prepayments of Loans.................... 29
2.6.1 Property Dispositions..................... 29
2.6.2 Events of Loss............................ 29
2.6.3 Remargining............................... 29
2.6.4 General................................... 31
2.7 Repayment at Maturity.................................... 31
2.8 Interest................................................. 31
2.8.1 Accrual Rate.............................. 31
2.8.2 Payment................................... 31
2.8.3 Default Interest.......................... 31
2.8.4 Maximum Legal Rate........................ 32
2.9 Fees..................................................... 32
2.9.1 Administrative Agent Fees................. 32
2.9.2 Commitment Fee............................ 32
2.9.3 Unused Fee................................ 32
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2.9.4 Letter of Credit Fees...................... 33
2.10 Computation of Interest and Fees................... 33
2.11 Payments by the Borrower........................... 33
2.12 Payments by the Banks to the Administrative Agent.. 34
2.13 Sharing of Payments................................ 35
2.14 Security........................................... 35
2.15 Reconveyance....................................... 35
2.16 Encumbrance of Additional Properties............... 39
2.17 Development of Entitled Land and Construction
Properties......................................... 42
2.18 Increases and Decreases in Pro Rata Shares......... 42
2.19 Increase in Maximum Commitment Amount.............. 42
ARTICLE 3. TAXES, YIELD PROTECTION AND ILLEGALITY.................. 44
3.1 Taxes.............................................. 44
3.2 Illegality......................................... 44
3.3 Increased Costs and Reduction of Return............ 45
3.4 Funding Losses..................................... 47
3.5 Inability to Determine Rates....................... 48
3.6 Certificates of Banks.............................. 48
3.7 Survival........................................... 48
ARTICLE 4. CONDITIONS PRECEDENT.................................... 49
4.1 Conditions of Initial Loans........................ 49
4.1.1 Credit Agreement, Notes and
Environmental Indemnity............. 49
4.1.2 Resolutions; Incumbency............. 49
4.1.3 Organization Documents; Good
Standing............................ 49
4.1.4 Legal Opinions...................... 50
4.1.5 Payment of Fees..................... 50
4.1.6 Collateral Documents................ 50
4.1.7 Environmental Review................ 52
4.1.8 Lease Review........................ 52
4.1.9 Certificate......................... 52
4.1.10 Establishment of Appraised Values... 52
4.1.11 Other Documents..................... 53
4.2 Conditions to All Borrowings....................... 53
4.2.1 Notice of Borrowing................. 53
4.2.2 Continuation of Representations
and Warranties...................... 53
4.2.3 No Existing Default................. 53
4.2.4 No Future Advance Notice............ 53
4.2.5 Further Assurances.................. 53
4.2.6 Title Indorsements.................. 54
4.3 Letters of Credit.................................. 54
4.3.1 Letter of Credit Application........ 54
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ARTICLE 5. REPRESENTATIONS AND WARRANTIES.......................... 54
5.1 Corporate Existence and Power...................... 54
5.2 Corporate Authorization; No Contravention.......... 55
5.3 Governmental Authorization......................... 55
5.4 Binding Effect..................................... 55
5.5 Litigation......................................... 56
5.6 No Default......................................... 56
5.7 ERISA Compliance................................... 56
5.8 Use of Proceeds; Margin Regulations................ 57
5.9 Title to Properties................................ 57
5.10 Taxes 57
5.11 Financial Condition................................ 58
5.12 Environmental Matters.............................. 58
5.13 Collateral Documents............................... 59
5.14 Regulated Entities................................. 60
5.15 No Burdensome Restrictions......................... 60
5.16 Subsidiaries....................................... 60
5.17 Insurance.......................................... 60
5.18 Solvency........................................... 60
5.19 Full Disclosure.................................... 60
5.20 Name and Principal Place of Business............... 61
5.21 Year 2000 Readiness and Disclosure................. 61
ARTICLE 6. AFFIRMATIVE COVENANTS................................... 61
6.1 Financial Statements............................... 61
6.1.1 Annual Borrower Financial Statements....... 61
6.1.2 Annual Borrower Cash Flow Projections...... 62
6.1.3 Quarterly Borrower Financial Statements.... 62
6.1.4 Quarterly Property Operating Statements
and Rent Rolls............................. 62
6.2 Certificates; Other Information.................... 62
6.3 Notices 63
6.4 Preservation of Corporate Existence, Etc........... 65
6.5 Maintenance of Property............................ 65
6.6 Insurance.......................................... 65
6.7 Payment of Obligations............................. 67
6.8 Compliance with Laws............................... 67
6.9 Inspection of Property and Books and Records....... 67
6.10 Environmental Laws................................. 68
6.11 Use of Proceeds.................................... 68
6.12 Further Assurances................................. 68
6.13 Copies of Leases................................... 69
6.14 Debt Coverage...................................... 69
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6.15 Fixed Charge Coverage.............................. 69
6.16 Leverage........................................... 69
6.17 Tangible Net Worth................................. 69
6.18 Portfolio Net Cash Flow Coverage................... 70
ARTICLE 7. NEGATIVE COVENANTS...................................... 70
7.1 Limitation on Liens................................ 70
7.2 Lease of a Property................................ 71
7.3 Consolidations and Mergers......................... 72
7.4 Limitation on Subordinated Indebtedness............ 72
7.5 Limitation on Preferred Shares..................... 72
7.6 Transactions with Affiliates....................... 72
7.7 Use of Proceeds.................................... 72
7.8 Change in Business................................. 72
7.9 Accounting Changes................................. 72
7.10 Lease Amendments................................... 73
7.11 Leasing or Management Office....................... 73
7.12 Management Agreements.............................. 73
ARTICLE 8. EVENTS OF DEFAULT....................................... 73
8.1 Event of Default................................... 73
(a) Non-Payment............................. 73
(b) Representation or Warranty............... 73
(c) Certain Specific Defaults................ 73
(d) Other Specific Defaults.................. 74
(e) Other Defaults.......................... 74
(f) Insolvency; Voluntary Proceedings........ 74
(g) Involuntary Proceedings.................. 74
(h) Monetary Judgments....................... 74
(i) Non-Monetary Judgments................... 75
(j) Adverse Change........................... 75
8.2 Remedies........................................... 75
8.3 Rights Not Exclusive............................... 76
ARTICLE 9. THE ADMINISTRATIVE AGENT................................ 76
9.1 Appointment and Authorization...................... 76
9.2 The Administrative Agent's Powers.................. 76
9.3 Limitation on the Administrative Agent's Duties.... 77
9.4 Acknowledgment of the Co-Lender Agreement.......... 77
9.5 Documentation Agent and Co-Agents.................. 77
9.6 Successor Administrative Agent, Documentation
Agent and Co-Agents................................ 77
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ARTICLE 10. MISCELLANEOUS........................................... 78
10.1 Amendments and Waivers............................. 78
10.2 Notices 79
10.3 No Waiver; Cumulative Remedies..................... 80
10.4 Costs and Expenses................................. 80
10.5 Indemnity.......................................... 81
10.6 Assignments, Participations, etc................... 83
10.7 Successors and Assigns............................. 85
10.8 Confidentiality.................................... 85
10.9 Set-off 85
10.10 Notification of Addresses, Lending Offices, Etc.... 86
10.11 Counterparts....................................... 86
10.12 Severability....................................... 86
10.13 No Third Parties Benefited......................... 86
10.14 Governing Law and Jurisdiction..................... 86
10.15 Reference and Arbitration.......................... 87
10.15.1 Judicial Reference........................ 87
10.15.2 Mandatory Arbitration..................... 87
10.15.3 Real Property Collateral.................. 87
10.15.4 Provisional Remedies, Self-Help and
Foreclosure............................... 88
10.16 Entire Agreement; Amendment and Restatement........ 88
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AMENDED AND RESTATED LINE OF CREDIT
LOAN AGREEMENT
(Secured)
This AMENDED AND RESTATED LINE OF CREDIT LOAN AGREEMENT (the "Agreement")
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is entered into as of October 28, 1998, among CATELLUS DEVELOPMENT CORPORATION,
a Delaware corporation (the "Borrower"), the several financial institutions from
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time to time party to this Agreement (collectively, the "Banks"; individually, a
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"Bank"), Bank of America National Trust and Savings Association, as arranger and
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as administrative agent for the Banks, and The First National Bank of Chicago,
as documentation agent.
Factual Background
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WHEREAS, certain of the Banks have previously made available to the
Borrower a secured revolving line of credit on the terms and subject to the
conditions set forth in that certain Line of Credit Loan Agreement dated as of
October 28, 1996, among the Borrower, the banks party thereto and BofA, as
administrative agent for such banks, as amended by (i) that certain First
Modification Agreement to Line of Credit Loan Agreement dated as of December 23,
1996 (the "First Modification"), (ii) that certain Second Modification Agreement
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to Line of Credit Loan Agreement dated as of March 1, 1997 (the "Second
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Modification"), (iii) that certain Third Modification Agreement to Line of
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Credit Loan Agreement dated as of June 1, 1997 (the "Third Modification"), (iv)
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that certain Fourth Modification Agreement to Line of Credit Loan Agreement
dated as of September 15, 1997 (the "Fourth Modification"), (v) that certain
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Fifth Modification Agreement to Line of Credit Loan Agreement (the "Fifth
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Modification") dated as of December 23, 1997, and (vi) that certain Sixth
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Modification Agreement to Line of Credit Loan Agreement (the "Sixth
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Modification") dated as of July 29, 1998 (as amended, the "Existing Loan
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Agreement");
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WHEREAS, under the Existing Loan Agreement, the Banks party thereto agreed
to make available to the Borrower a secured revolving line of credit in the
maximum principal amount of $265,000,000, with BofA having a pro rata share of
29.24528%, representing a maximum commitment of $77,500,000; The First National
Bank of Chicago having a pro rata share of 15.09433%, representing a maximum
commitment of $40,000,000; CIBC Inc. having a pro rata share of 11.32075%,
representing a maximum commitment of $30,000,000; The Bank of Nova Scotia, San
Francisco Agency, having a pro rata share of 11.00000%, representing a maximum
commitment of $30,000,000; The First National Bank of Boston having a pro rata
share of 11.32075%, representing a maximum commitment of $30,000,000;
Commerzbank AG, Los Angeles Branch, having a pro rata share of 9.43396%,
representing a maximum commitment of $25,000,000; Union Bank of California, N.A.
having a pro rata share of 7.54716%, representing a maximum commitment of
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20,000,000; and Xxxxx Fargo Bank, National Association having a pro rata share
of 4.71698%, representing a maximum commitment of $12,500,000;
WHEREAS, the Borrower has requested that the Banks modify the terms of the
secured revolving line of credit made available to the Borrower pursuant to the
Existing Loan Agreement;
WHEREAS, following modification of the revolving credit facility made
available to the Borrower pursuant to the Existing Loan Agreement, CIBC Inc. and
Commerzbank AG, Los Angeles Branch, will no longer be parties to the revolving
line of credit; and
WHEREAS, the remaining Banks have agreed to make available to the Borrower
an amended secured revolving line of credit in the maximum principal amount of
$213,000,000 upon the terms and subject to the conditions set forth in this
Agreement, which amends and restates in full the Existing Loan Agreement, with
the pro rata shares of the remaining Banks adjusted so that BofA has a pro rata
share of 36.3850%, representing a maximum commitment of $77,500,000; The First
National Bank of Chicago has a pro rata share of 15.4930%, representing a
maximum commitment of $33,000,000; The Bank of Nova Scotia, San Francisco
Agency, has a pro rata share of 14.0845%, representing a maximum commitment of
$30,000,000; The First National Bank of Boston has a pro rata share of 14.0845%,
representing a maximum commitment of $30,000,000; Union Bank of California, N.A.
has a pro rata share of 14.0845%, representing a maximum commitment of
30,000,000; and Xxxxx Fargo Bank, National Association has a pro rata share of
5.8685%, representing a maximum commitment of $12,500,000.
Agreement
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NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE 1.
DEFINITIONS
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1.1 Certain Defined Terms . The following terms have the following
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meanings:
"Administrative Agent" means BofA in its capacity as administrative
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agent for the Banks hereunder, and any successor administrative agent designated
under Section 9.6.
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"Affiliate" means, as to any Person, (a) any other Person which,
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directly or indirectly, is in control of, is controlled by, or is under common
control with, (i) such Person or (ii) any general partner of such Person; (b)
any other Person five percent (5%) or more of the equity interest of which is
held beneficially or of record by (i) such Person or (ii) any general partner of
such Person; or (c) any general or limited partner of (i) such Person or (ii)
any general partner of such Person. A Person shall be deemed to "control"
another Person if the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of the
other Person, whether through the ownership of voting securities, by contract,
or otherwise; provided, however, that no Person shall be deemed to "control"
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another Person solely because such Persons have a common director or an employee
or agent of one such Person is a director of the other.
"Agent-Related Persons" means BofA and any successor administrative
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agent designated under Section 9.6, together with their respective Affiliates,
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and the officers, directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
"Agent's Payment Office" means the address for payments set forth on
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the signature page hereto in relation to the Administrative Agent, or such other
address as the Administrative Agent may from time to time specify by written
notice to Borrower in accordance with the terms of this Agreement.
"Agreement" means this Amended and Restated Line of Credit Loan
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Agreement, as amended, supplemented or modified from time to time.
"Applicable Margin" means (i) with respect to Base Rate Loans, 0.50%,
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and (ii) with respect to LIBOR Loans, 1.80%.
"Appraisal" means an appraisal of the value of a Property taking into
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account any and all Estimated Remediation Costs applicable to such Property.
Such appraisal shall be conducted in accordance with all Requirements of Law
applicable to the Banks, and all applicable internal policies of the
Administrative Agent, by (i) an independent appraisal firm selected by the
Administrative Agent or (ii) the BofA in-house appraisal department. No
appraisal of any Property shall include any part of such Property (or any
improvements located on such part of such Property) previously released or
reconveyed from the Lien of the Deed of Trust encumbering such Property and no
longer owned by the Borrower.
"As-Completed Appraised Value" means, for any Construction Property at
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any time, the estimated market value of such Property upon completion of all of
the improvements to be constructed by the Borrower pursuant to the sale
agreement or lease relating to such Construction Property, as established by an
Appraisal conducted prior to the recording of the Deed of Trust encumbering such
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Construction Property to secure the Obligations. The As-Completed Appraised
Values for the Construction Properties as of the Closing Date are set forth on
Schedule 1.1. However, nothing contained in this Agreement is intended to be,
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nor should it be construed as, an admission by the Borrower as to the fair cash
market value of any Property, or any portion thereof.
"As-Is Appraised Value" means, for any Property at any time, the
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market value of such Property in the condition existing as of the date of the
Appraisal establishing its value, as established by an Appraisal conducted (i)
prior to the recording of the Deed of Trust encumbering such Property to secure
the Obligations or (ii) if a Deed of Trust was recorded pursuant to the Existing
Loan Agreement and continues to secure the Obligations, prior to the recording
of the Modification Agreement relating to such Deed of Trust. The As-Is
Appraised Values for the Properties (other than the Construction Properties) as
of the Closing Date are set forth on Schedule 1.1. However, nothing contained
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in this Agreement is intended to be, nor should it be construed as, an admission
by the Borrower as to the fair cash market value of any Property, or any portion
thereof.
"Assignee" has the meaning specified in Section 10.6.1.
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"Attorney Costs" means and includes all reasonable fees and
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disbursements of any law firm or other external counsel, and the reasonable
allocated cost of internal legal services and all disbursements of internal
counsel, to the extent described in Sections 4.1.5, 10.4 and 10.5.1.
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"Availability" means, at any time, the lesser of (i) the Portfolio
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Appraisal Value at such time, or (ii) the Maximum Commitment Amount at such
time.
"Bank" means one of the institutions described as a "Bank" in the
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introductory clause hereto.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as amended
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or recodified from time to time (11 U.S.C. '101, et seq.) .
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"Base Rate" means, at any time, the greater of the Reference Rate or
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the Federal Funds Rate at such time.
"Base Rate Loan" means a Loan that bears interest based on the Base
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Rate.
"BofA" means Bank of America National Trust and Savings Association, a
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national banking association.
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"Borrower" means the Person specified as the "Borrower" in the
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introductory clause hereto.
"Borrowing" means a disbursement hereunder consisting of Loans of the
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same Type made to the Borrower on the same day by the Banks under Article 2 and,
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other than in the case of Base Rate Loans, having the same Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs under
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Section 2.3.
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"Business Day" means any day other than a Saturday, Sunday or other
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day on which commercial banks in New York City or San Francisco are authorized
or required by law to close and, if the applicable Business Day relates to any
LIBOR Loan, means such a day on which dealings are carried on in the applicable
offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline, request or
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directive of any central bank or other Governmental Authority, or any other law,
rule or regulation, whether or not having the force of law, in each case,
regarding capital adequacy of any bank or of any corporation controlling a bank.
"Capital Allowance" means (a) with respect to an Industrial Property,
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fifty cents ($0.50) per annum per square foot of net rentable area of such
Industrial Property, (b) with respect to an Office Property, one dollar and
fifty cents ($1.50) per annum per square foot of net rentable area of such
Office Property, or (c) with respect to a Retail Property, seventy-five cents
($0.75) per annum per square foot of net rentable area of such Retail Property.
For purposes of this definition, the Sale-Leaseback Property located in Ontario,
California, shall be considered to be an Industrial Property and the Sale-
Leaseback Property located in Emeryville, California, shall be considered to be
a Retail Property.
"CERCLA" means the Comprehensive Environmental Response, Compensation
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and Liability Act of 1980, as amended or recodified from time to time.
"Closing Date" means the date of recording of (i) the initial Deeds of
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Trust, and (ii) as to Deeds of Trust recorded pursuant to the Existing Loan
Agreement that continue to secure the Obligations, the Modification Agreements
relating to such Deeds of Trust
"Co-Agent" means any Bank designated as a "Co-Agent" in this
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Agreement, each in its capacity as a co-agent for the Banks hereunder, and any
successor co-agent designated under Section 9.6.
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"Code" means the Internal Revenue Code of 1986, as amended or
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recodified from time to time, and regulations promulgated thereunder.
"Collateral" means all property and interests in property and proceeds
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thereof now owned or hereafter acquired by the Borrower in or upon which a Lien
now or hereafter exists in favor of the Administrative Agent, on behalf of the
Banks, whether under this Agreement or under any other documents executed by the
Borrower and delivered to the Administrative Agent, on behalf of the Banks.
"Collateral Documents" means, collectively, (i) the Deeds of Trust,
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the Lease Assignments and all other security agreements, mortgages, deeds of
trust, lease assignments and other similar agreements between the Borrower and
the Administrative Agent, for the benefit of the Banks, now or hereafter
delivered to the Administrative Agent pursuant to or in connection with the
transactions contemplated hereby, and all financing statements (or comparable
documents now or hereafter filed in accordance with the Uniform Commercial Code
or comparable law) against the Borrower as debtor in favor of the Administrative
Agent, for the benefit of the Banks, as secured party, pursuant to or in
connection with the transactions contemplated hereby, and (ii) any amendments,
supplements, modifications, renewals, replacements, consolidations,
substitutions and extensions of any of the foregoing, including the Modification
Agreements.
"Commitment" means the amount of the credit and the outstanding Loans
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for which each Bank is obligated under this Agreement.
"Compliance Certificate" means a certificate substantially in the form
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of Exhibit C.
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"Construction Property" means a Property (a) that is either (i) pre-
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sold (subject only to completion of the improvements) to a third-party buyer
satisfactory to the Banks under a signed sale agreement satisfactory to the
Banks, in each case in their sole and absolute discretion, or (ii) pre-leased
(subject only to completion of the improvements) to one or more third-party
lessees satisfactory to the Banks under signed leases satisfactory to the Banks,
in each case in their sole and absolute discretion, and (b) on which the
Borrower intends to construct an industrial, manufacturing, research and
development or warehouse distribution facility. A pre-leased Construction
Property shall cease to be a Construction Property, and shall instead become an
Industrial Property, upon (w) the recording of a notice of completion or
comparable notice with respect to the improvements constructed on such Property,
if and to the extent permitted in the jurisdiction in which such Property is
located, (x) delivery to the Administrative Agent of reasonably satisfactory
evidence of lien-free completion of such improvements, (y) the issuance of a
certificate of occupancy or comparable permit for such improvements by the
applicable
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Governmental Authority, if and to the extent available in the
jurisdiction in which such Property is located, and (z) occupancy of such
improvements by the lessee.
"Construction Property Value" means, with respect to each Construction
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Property at any time, an amount equal to the lesser of (i) seventy-five percent
(75%) of the Cost of such Construction Property, or (ii) seventy percent (70%)
of the As-Completed Appraised Value of such Construction Property; provided,
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however, that the Construction Property Value of any Construction Property pre-
sold to a third party buyer shall be reduced to zero (0) for the period after
the first anniversary of the date on which such Construction Property is
encumbered with a Deed of Trust for the benefit of the Administrative Agent to
secure the Obligations.
"Contingent Obligation" means, as to any Person, any liability of that
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Person, whether or not contingent, with or without recourse, (a) with respect to
any Guaranty Obligation; or (b) with respect to any Surety Instrument issued for
the account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings or payments; provided, however, that for purposes of
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the definition of the term "Total Liabilities," the Borrower's liability for
Guaranty Obligations relating to the Indebtedness of any affiliate of the
Borrower whose financial results are not consolidated with those of the Borrower
for financial reporting purposes in accordance with GAAP shall be the greater of
(i) the Borrower's pro rata share of such affiliate's Indebtedness, determined
in accordance with GAAP, or (ii) the amount of such Guaranty Obligation.
"Contractual Obligation" means, as to any Person, any provision of any
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security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"Conversion/Continuation Date" means any date on which, under Section
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2.4, the Borrower (a) converts Loans of one Type to another Type, or (b)
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continues as Loans of the same Type, but with a new Interest Period, Loans
having Interest Periods expiring on such date.
"Cost" means, with respect to each Construction Property, the actual
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cost of developing such Property, including both hard costs and soft costs of
constructing the improvements to be constructed by the Borrower on such
Construction Property (based on the initial construction budget for such
improvements that the Borrower delivers to the Administrative Agent), the value
of the land (which shall be equal to the lesser of book value or cost) and a
management fee payable to the Borrower or an Affiliate of the Borrower in an
amount not to exceed three percent (3%) of the total cost of developing such
Construction Property, but excluding all other development and other fees
payable to the Borrower or an Affiliate of the Borrower.
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["CRG" means Catellus Residential Group, Inc., a California
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corporation.]
"Debt Coverage" means, at any time, the ratio of (a) EBITDA to (b)
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Debt Service, each measured over the four (4) most recent consecutive fiscal
quarters for which financial statements are available at such time.
"Debt Service" means, for any period, (i) all interest expense
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(including capitalized interest expense and accrued interest expense) for such
period, plus (ii) the aggregate amount of regularly scheduled principal payments
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due and payable during such period.
"Deed of Trust" means any deed of trust, mortgage, leasehold mortgage,
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assignment of rents or other document creating a Lien on real property or any
interest in real property.
"Default" means any event or circumstance which, with the giving of
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notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Disposition" means the sale, conveyance or other disposition of a
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Property, but excluding any Event of Loss.
"Documentation Agent" means The First National Bank of Chicago in its
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capacity as documentation agent for the Banks hereunder, and any successor
documentation agent designated under Section 9.6.
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"Dollars," "dollars" and "$" each mean lawful money of the United
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States.
"EBITDA" means, for any fiscal period, (a) the sum of the aggregate
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amounts of the following items for the Borrower and its subsidiaries for such
period: (i) net income, (ii) provisions for taxes based on income, (iii)
interest expense (including capitalized interest expense), (iv) depreciation
expense, (v) amortization expense and (vi) the aggregate amount of other
expenses, losses on sales of non-strategic assets, net realizable value write-
downs and other non-recurring charges and extraordinary losses, less (b) the
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aggregate amount of gain on sales of non-strategic assets and other
extraordinary gains, all as determined on a consolidated basis for the Borrower
and its subsidiaries in accordance with GAAP, consistently applied.
"Eligible Assignee" means (i) a commercial bank, savings and loan or
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savings bank organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least $100,000,000;
(ii) a commercial bank
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organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the
"OECD"), or a political subdivision of any such country, and having a combined
----
capital and surplus of at least $100,000,000, provided that such bank is acting
--------
through a branch or agency located in the United States; (iii) a Person that is
primarily engaged in the business of commercial banking and that is (A) a
Subsidiary of a Bank, (B) a Subsidiary of a Person of which a Bank is a
Subsidiary, or (C) a Person of which a Bank is a Subsidiary; or (iv) any other
Person engaged in the business of commercial real estate lending and acceptable
to the Administrative Agent, the Majority Banks and the Borrower in their sole
discretion.
"Entitled Land" means an unimproved Property that satisfies all of the
-------------
following conditions: (i) the intended use of such Property (which shall be
limited to an industrial, manufacturing or warehouse distribution facility, a
research and development facility or an office building, except that the
Internationale Centre Property located in Woodridge, Illinois, may include any
one or more of the uses permissible under clause (i) of the first sentence of
Section 2.16.1) is permissible under the applicable general plan or its
--------------
equivalent, and (ii) such intended use is permissible under any applicable
specific plan, zoning classification or development agreement; provided,
--------
however, that the Property located in Romeoville, Illinois shall be deemed to be
"Entitled Land" notwithstanding the zoning of a portion of such Property for
agricultural uses. The Entitled Land as of the date of this Agreement is
described on Exhibit G.
---------
"Environmental Claims" means all claims, however asserted, by any
--------------------
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting from
or based upon the presence, placement, discharge, emission or release (including
intentional and unintentional, negligent and non-negligent, sudden or non-
sudden, accidental or non-accidental, placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in, or from property,
whether or not owned by the Borrower.
"Environmental Indemnity" means the unsecured environmental indemnity
-----------------------
executed by the Borrower and delivered to the Administrative Agent, for the
benefit of the Banks, pursuant to Section 4.1.1.
-------------
"Environmental Laws" means all federal, state or local laws, statutes,
------------------
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of,
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and agreements with, any Governmental Authorities, in each case
relating to environmental, health and safety matters, including CERCLA, the
Clean Air Act, the Federal Water Pollution Control Act of 1972, the Solid Waste
Disposal Act, the Federal Resource Conservation and Recovery Act, the Toxic
Substances Control Act, the Emergency Planning and Community Right-to-Know Act,
the California Hazardous Waste Control Law, the California Solid Waste
Management, Resource, Recovery and Recycling Act, the California Water Code and
the California Health and Safety Code.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended or recodified from time to time, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) under common control with the Borrower within the meaning of
Sections 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
-----------
Plan or a Multiemployer Plan; (b) a withdrawal by the Borrower or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations which is treated as such a withdrawal under
Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower
or any ERISA Affiliate from a Multiemployer Plan; (d) the filing of a notice of
intent to terminate, the treatment of a plan amendment as a termination under
Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC
to terminate a Pension Plan or Multiemployer Plan subject to Title IV of ERISA;
(e) failure by the Borrower or any member of the Controlled Group to make
required contributions to a Pension Plan or Multiemployer Plan; (f) an event or
condition which might reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; (g) the imposition of any
liability under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate; or (g) an application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Tax Code with respect to any
Pension Plan.
"Estimated Remediation Cost" means for any Property all costs
--------------------------
associated with performing work to remediate contamination of real property or
groundwater, as determined by a qualified engineer or consultant reasonably
acceptable to the Administrative Agent, to the extent that any such work is
required to be performed or any such cost must be incurred in order to bring
such Property into compliance with any Requirement of Law, including engineering
and other
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professional fees and expenses, costs to remove, transport and dispose
of contaminated soil, costs to "cap" or otherwise contain contaminated soil, and
costs to pump and treat water and monitor water quality.
"Event of Default" means any of the events or circumstances specified
----------------
in Section 8.1.
-----------
"Event of Loss" means, with respect to any Property, any of the
-------------
following: (a) any loss or destruction of, or damage to, such Property; or (b)
any actual condemnation, seizure or taking, by exercise of the power of eminent
domain or otherwise, of such Property, or confiscation of such Property or the
requisition of the use of such Property by a Governmental Authority or any
Person having the power of eminent domain, or any voluntary transfer of such
Property or any portion thereof in lieu of any such condemnation, seizure or
taking.
"Existing Properties" means those Properties encumbered with Deeds of
-------------------
Trust entered into pursuant to the Existing Loan Agreement that have not been
released.
"Federal Funds Rate" means, for any day, the rate set forth in the
------------------
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including any
such successor, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be the
arithmetic mean, as determined by the Administrative Agent, of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York City time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Administrative Agent.
"Fee Letter" has the meaning specified in Section 2.9.1.
---------- -------------
"Fixed Charge Coverage" means, as of any date of determination, the
---------------------
ratio of (a) an amount equal to EBITDA plus the aggregate amount of gain on
----
sales of non-strategic assets less the aggregate amount of losses on sales of
----
non-strategic assets to (b) Fixed Charges, each measured over the four (4) most
recent consecutive fiscal quarters for which financial statements are available
at such time.
"Fixed Charges" means, for any period, the sum of (i) the consolidated
-------------
interest expense (including capitalized interest expense and accrued interest
expense) of the Borrower and its subsidiaries for such period, plus (ii) the
----
aggregate amount of regularly scheduled principal payments due and payable by
the Borrower and its subsidiaries during such period, plus (iii) the aggregate
----
amount of dividends declared and payable to both preferred and common
shareholders of the Borrower during such
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period, all as determined on a consolidated basis in accordance with GAAP,
consistently applied.
"FRB" means the Board of Governors of the Federal Reserve System, and
---
any Governmental Authority succeeding to any of its principal functions.
"GAAP" means generally accepted accounting principles set forth from
----
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
"Governmental Authority" means any nation or government, any state or
----------------------
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Ground Leased Property" means a Property that (a) the Borrower has
----------------------
leased in its entirety to a third-party lessee satisfactory to the Banks in
their sole and absolute discretion (b) pursuant to a lease that is senior to any
Lien encumbering such Property (other than a Permitted Lien or the Lien of a
Deed of Trust securing the Obligations), and (c) such lease has a term of which
not less than ten (10) years are remaining at the time such Property is
encumbered with a Deed of Trust.
"Guaranty Obligation" means, as to any Person, any direct or indirect
-------------------
contractual liability of that Person, whether or not contingent, with or without
recourse, with respect to any Indebtedness, lease, dividend, letter of credit or
other monetary obligation (the "primary obligations") of another Person (the
"primary obligor").
"Hazardous Materials" means all those substances that are regulated
-------------------
by, or which may form the basis of liability under, any Environmental Law,
including all substances identified under any Environmental Law as a pollutant,
contaminant, hazardous waste, hazardous constituent, special waste, hazardous
substance, hazardous material or toxic substance, or petroleum or petroleum-
derived substance or waste.
"Indebtedness" of any Person means, without duplication, (a) all
------------
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables entered into in the ordinary course of business on ordinary terms); (c)
all non-contingent reimbursement or payment obligations with respect to Surety
Instruments; (d) all
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obligations evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with the acquisition
of property, assets or businesses; (e) all indebtedness created or arising under
any conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to property acquired by the Person (even
though the rights and remedies of the seller or bank under such agreement in the
event of default are limited to repossession or sale of such property); (f) all
obligations with respect to capital leases; (g) all liquidated net obligations
with respect to Swap Contracts; (h) all indebtedness referred to in clauses (a)
through (g) above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon or
in property (including accounts and contracts rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Indebtedness; and (i) all Guaranty Obligations in respect of indebtedness or
obligations of others of the kinds referred to in clauses (a) through (g) above.
"Indemnified Liabilities" has the meaning specified in Section 10.5.
----------------------- ------------
"Indemnified Person" has the meaning specified in Section 10.5.
------------------ ------------
"Independent Auditor" has the meaning specified in Section 6.1.1.
------------------- -------------
"Industrial Property" means any Property improved with an industrial,
-------------------
manufacturing or warehouse distribution facility, including any R&D Property.
"Insolvency Proceeding" means (a) any case, action or proceeding
---------------------
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshaling of assets for creditors, or other similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors, undertaken under U.S. federal, state or foreign law, including
the Bankruptcy Code.
"Interest Payment Date" means, as to any Loan, the tenth (10th) day of
---------------------
each calendar month.
"Interest Period" means, as to any LIBOR Loan, the period commencing
---------------
on the Borrowing Date of such Loan or on the Conversion/Continuation Date on
which the Loan is converted into or continued as a LIBOR Loan, and ending on the
date one (1), two (2), three (3), four (4), six (6), nine (9) or twelve (12)
months thereafter (and any other period that is twelve (12) months or less and
is consented to by the Majority Banks in the given instance), as selected by the
Borrower in its Notice of Borrowing or Notice of Conversion/Continuation;
provided that:
--------
(i) if any Interest Period would otherwise end on a day that is
not
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a Business Day, that Interest Period shall be extended to the following
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the preceding Business Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the calendar month at the end of such
Interest Period; and
(iii) no Interest Period for any Loan shall extend beyond the
Maturity Date.
"IRS" means the Internal Revenue Service, and any Governmental
---
Authority succeeding to any of its principal functions.
"Lease Assignment" means any assignment of leases or rents executed by
----------------
the Borrower to secure the Obligations.
"Lending Office" means, as to any Bank, the office or offices of such
--------------
Bank specified as its "Lending Office" or "Domestic Lending Office" or "Offshore
Lending Office", as the case may be, on Schedule 10.2, or such other office or
-------------
offices as the Bank may from time to time notify the Borrower and the
Administrative Agent.
"Letter of Credit" means a letter of credit issued by BofA for the
----------------
Borrower's account pursuant to Article 2.
---------
"Leverage" means, as of any date of determination, the ratio of (a)
--------
Total Liabilities as of such date to (b) Total Assets as of such date.
"LIBOR" means the rate of interest per annum (rounded upward to the
-----
next 1/16th of 1%) determined by the Administrative Agent as the rate at which
dollar deposits in the approximate amount of the Loan to be made or continued
as, or converted into, a LIBOR Loan and having a maturity comparable to such
Interest Period would be offered by BofA's London Branch, London, England, to
major banks in the London dollar interbank market at their request at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the
commencement of such Interest Period.
"LIBOR Loan" means a Loan that bears interest based on LIBOR.
----------
"Lien" means any security interest, mortgage, deed of trust, pledge,
----
hypothecation, assignment, charge or deposit arrangement, encumbrance or lien
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-14-
(statutory or other) in respect of any property (including those created by,
arising under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease, any financing lease
having substantially the same economic effect as any of the foregoing, or the
filing of any financing statement naming the owner of the asset to which such
lien relates as debtor, under the UCC or any comparable law), but not including
the interest of a lessor under an operating lease.
"Loan" means an extension of credit by a Bank to the Borrower under
----
Article 2, and may be a Base Rate Loan or a LIBOR Loan.
---------
"Loan Documents" means this Agreement, any Notes, the Collateral
--------------
Documents, the Fee Letters and all other documents (except for the Environmental
Indemnity) delivered to the Administrative Agent, on behalf of the Banks, to
evidence or secure any of the Loans or reimbursement obligations relating to any
Letter of Credit.
"Majority Banks" means at any time at least two Banks then holding at
--------------
least 66-2/3% of the then aggregate unpaid principal amount of the Loans, or, if
no such principal amount is then outstanding, at least two Banks then having at
least
66-2/3% of the aggregate amount of the Commitments; provided, however, that
--------
solely for purposes of removing the Administrative Agent, the Documentation
Agent or any Co-Agent pursuant to Section 9.6, if any Bank holds more than 33-
-----------
1/3% of the then aggregate unpaid principal amount of the Loans (or, if
applicable, the Commitments), "Majority Banks" means at least two Banks holding
a percentage of the amount of the aggregate unpaid principal amount of the Loans
(or, if applicable, the Commitments) equal to 66-2/3% less the aggregate
----
percentage in excess of 33-1/3% held by any Bank.
"Margin Stock" means "margin stock" as such term is defined in
------------
Regulation G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material impairment of the
-----------------------
Borrower's ability to perform under any Loan Document and to avoid any Event of
Default; or (b) a material adverse effect upon (i) the legality, validity,
binding effect or enforceability against the Borrower of any Loan Document, or
(ii) the perfection or priority of any Lien granted under any of the Collateral
Documents.
"Material Lease" means any lease covering more than the greater of (i)
--------------
twenty-five percent (25%), or (ii) fifty thousand (50,000) square feet, of the
net rentable area of the improvements located on any Property.
"Maturity Date" means November 1, 2000.
-------------
"Maximum Commitment Amount" means, at any time, Two Hundred Thirteen
-------------------------
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-15-
Million and No/100 Dollars ($213,000,000.00), subject to increase pursuant to,
and on the terms and subject to the conditions set forth in, Section 2.19.
------------
"Modification Agreement" means an agreement dated as of the date
----------------------
hereof modifying a Deed of Trust encumbering an Existing Property.
"Monetary Default" means any Default with respect to the payment of
----------------
any amount owed by Borrower to a Bank under any Loan Document.
"Multiemployer Plan" means a "multiemployer plan" within the meaning
------------------
of Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes, is making, or is obligated to make contributions or, during the preceding
three calendar years, has made, or been obligated to make, contributions.
"Net Cash Flow" means, (a) for any Operating Property at any time, the
-------------
actual net operating income for such Operating Property for the last twelve (12)
consecutive calendar months for which operating reports are available at such
time; provided, however, that for any Operating Property for which operating
--------
reports are not required to have been delivered to the Administrative Agent for
twelve (12) consecutive calendar months as of the determination date, "Net Cash
Flow" means an amount equal to the actual net operating income for such
Operating Property for the number of the most recent consecutive calendar months
for which operating reports are available at such time multiplied by a fraction
the numerator of which is twelve (12) and the denominator of which is the number
of consecutive calendar months for which operating reports are available for
such Operating Property at such time, or (b) for any Construction Property at
any time, the stabilized net operating income for such Construction Property
established by the Appraisal of such Construction Property.
"Net Proceeds" means, as to any Disposition by a Person, proceeds in
------------
cash, checks or other cash equivalent financial instruments as and when received
by such Person or any exchange accommodator for the benefit of such Person, net
of: (a) the out-of-pocket costs relating to such Disposition, excluding amounts
ultimately payable to such Person or any Affiliate of such Person, and (b) sale,
use or other transaction taxes paid or payable by such Person as a direct result
thereof. "Net Proceeds" shall also include proceeds paid on account of any
------------
Event of Loss, net of (i) all money actually applied or to be applied to repair
or reconstruct the damaged property or property affected by the condemnation or
taking, (ii) all of the costs and expenses reasonably incurred in connection
with the collection of such proceeds, award or other payments, and (iii) any
amounts retained by or paid to parties having superior rights to such proceeds,
awards or other payments.
"Note" means a promissory note executed by the Borrower in favor of a
----
Bank pursuant to subsection 2.2(b), in substantially the form of Exhibit F;
----------------- ---------
"Notes" means, at any time,
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all of the Notes executed by the Borrower in favor of a Bank outstanding at
such time.
"Notice of Borrowing" means a notice in substantially the form of
-------------------
Exhibit A.
---------
"Notice of Conversion/Continuation" means a notice in substantially
---------------------------------
the form of Exhibit B.
---------
"Obligations" means all advances, debts, liabilities, obligations,
-----------
covenants and duties arising under any Loan Document owing by the Borrower to
any Bank, the Administrative Agent, or any Indemnified Person, whether direct or
indirect (including those acquired by assignment), absolute or contingent, due
or to become due, now existing or hereafter arising.
"Office Property" means any Property improved with an office building.
---------------
"Operating Portfolio Debt Service Interest Rate" means, at any time, a
----------------------------------------------
rate per annum (calculated on the basis of a 360-day year, actual days elapsed)
equal to the greater of (a) eight percent (8.0%) or (b) the sum of (i) the rate
payable on United States Treasury Notes having a maturity of seven (7) years,
determined on the first day of the month in which the calculation is made (or
the date closest to the first day of such month for which rate data are
available), plus (ii) 1.75%.
"Operating Portfolio Net Cash Flow" means, at any time, (a) the
---------------------------------
aggregate amount of Net Cash Flow for all of the Properties that on the date of
determination are considered to be Operating Properties or Construction
Properties pursuant to this Agreement, adjusted for deferred rents, plus (b) the
----
Net Proceeds of the Disposition of any Property during the twelve (12)
consecutive calendar month period used to determine Net Cash Flow, less (c) the
----
aggregate amount of Capital Allowances for all of the Properties that on the
date of determination are considered to be Industrial Properties, Retail
Properties, Office Properties, Sale-Leaseback Properties or Construction
Properties pursuant to this Agreement; provided, however, that for purposes of
--------
clause (a), above, any portion of the Net Cash Flow for any Operating Property
that exceeds fifteen percent (15%) of the aggregate amount of Net Cash Flow for
all of the Operating Properties at such time shall not be considered in
computing the aggregate amount of Net Cash Flow for all of the Properties at
such time.
"Operating Property" means an Industrial Property, a Retail Property,
------------------
an Office Property, a Ground Leased Property or a Sale-Leaseback Property; the
Operating Properties as of the date of this Agreement are described on Exhibit
-------
G.
"Opinions of Counsel" has the meaning specified in Section 5.3.
------------------- -----------
"Organization Documents" means, for any corporation, the certificate
----------------------
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or articles of incorporation, any certificate of determination or instrument
relating to the rights of preferred shareholders of such corporation, any
shareholder rights agreement, and all applicable resolutions of the board of
directors (or any committee thereof) of such corporation.
"Other Taxes" means any present or future stamp or documentary taxes
-----------
or any other excise or property taxes, charges or similar levies which arise
from any payment made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement or any of the other Loan
Documents, excluding, in the case of each Bank and the Administrative Agent,
such taxes (including income taxes or franchise taxes) as are imposed on or
measured by such Person's net income, gross income or net worth.
"Participant" has the meaning specified in Section 10.6.4.
----------- --------------
"PBGC" means the Pension Benefit Guaranty Corporation, or any
----
Governmental Authority succeeding to any of its principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2) of
------------
ERISA) subject to Title IV of ERISA which the Borrower sponsors, maintains, or
to which it makes, is making, or is obligated to make contributions, or in the
case of a multiple employer plan (as described in Section 4064(a) of ERISA) has
made contributions at any time during the immediately preceding five (5) plan
years.
"Permitted Encumbrances" has the meaning specified in Section 5.13.
---------------------- ------------
"Permitted Liens" has the meaning specified in Section 7.1.
--------------- -----------
"Person" means an individual, partnership, corporation, business
------
trust, limited liability company, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
----
ERISA) which the Borrower sponsors or maintains or to which the Borrower makes,
is making, or is obligated to make contributions, and includes any Pension Plan.
"Portfolio Appraisal Value" means, at any time, the sum of (i) 75% of
-------------------------
the aggregate amount of the As-Is Appraised Values for each of the Industrial
Properties at such time, and (ii) 65% of the aggregate amount of the As-Is
Appraised Values for each of the Retail Properties at such time, (iii) 65% of
the aggregate amount of the As-Is Appraised Values for each of the Office
Properties at such time, (iv) 60% of the aggregate amount of the As-Is Appraised
Values for each of the Sale-Leaseback Properties at such time, (v) 70% of the
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aggregate amount of the As-Is Appraised Values for each of the Ground Leased
Properties at such time, (vi) 50% of the aggregate amount of the As-Is Appraised
Values for each of the parcels of Entitled Land at such time, and (vii) the
aggregate amount of the Construction Property Values for each of the
Construction Properties at such time; provided, however, that neither the amount
--------
determined under clause (vi), above, nor the amount determined under clause
(vii), above, shall at any time exceed 25% of the sum of the amounts determined
under clauses (i), (ii), (iii), (iv), (v), (vi) and (vii), above, and any
portion of the aggregate amount of the As-Is Appraised Values for the Entitled
Land that exceeds such limit at any time, or any portion of the aggregate amount
of the Construction Property Values for the Construction Properties that exceeds
such limit at any time, shall not be considered in computing the "Portfolio
Appraisal Value" at such time; and provided further, however, that for purposes
----------------
of determining the amount under clause (vi), above, no single parcel of Entitled
Land (other than the Internationale Centre Property located in Woodridge,
Illinois) shall be considered to have an As-Is Appraised Value in excess of
$20,000,000.
"Portfolio Net Cash Flow Coverage Ratio" means, at any time, the ratio
--------------------------------------
of (a) Operating Portfolio Net Cash Flow at such time to (b) the annual interest
that would accrue on the aggregate principal amount of the Loans outstanding at
such time at a rate equal to the Operating Portfolio Debt Service Interest Rate
at such time, computed on the basis of a 360-day year for the actual number of
days elapsed.
"Property" means, collectively, all right, title and interest, whether
--------
now existing or hereafter acquired, in and to any real property which is
encumbered by a Deed of Trust, together with all easements and other rights now
or hereafter made appurtenant thereto, all improvements and fixtures now or
hereafter located thereon, and all additions and accretions thereto.
"Pro Rata Share" means, as to any Bank at any time, the percentage
--------------
equivalent (expressed as a decimal, rounded to the ninth decimal place) at such
time of such Bank's Commitment divided by the combined Commitments of all Banks.
"R&D Property" means any parcel of real property owned by the Borrower
------------
more than fifty percent (50%) of whose net rentable area is improved as research
and development space.
"Reference Rate" means, at any time, the rate of interest publicly
--------------
announced from time to time by BofA in San Francisco, California, as its
"reference rate." (The "reference rate" is a rate set by BofA based upon
various factors, including BofA's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate.) Any change
in the reference rate announced by BofA shall take effect at the opening of
business on the day specified in the public announcement of such change.
-19-
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"Release Price" means, with respect to a Property, the amount, if any,
-------------
necessary to reduce the aggregate outstanding principal amount of the Loans to
the Availability (computed without regard to the Property for which the Borrower
is seeking release), determined on the date of the Borrower's request that the
Administrative Agent, on behalf of the Banks, release the Deed of Trust
encumbering such Property.
"Reportable Event" means, as to any Plan, any of the events set forth
----------------
in Section 4043(c) of ERISA, or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been waived in
regulations issued by the PBGC.
"Requirement of Law" means, as to any Person, any law (statutory or
------------------
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or as to which the Person or any of its property is subject.
"Responsible Officer" means the chief financial officer, treasurer,
-------------------
controller, director of finance or Vice President of Asset Management of the
Borrower, or any other officer having substantially the same authority and
responsibility.
"Retail Property" means any Property improved with a shopping center,
---------------
theater, restaurant facility or other similar retail project or use (or any
combination thereof).
"Sale-Leaseback Property" means the leasehold interest of the Borrower
-----------------------
in either or both of the real properties located in Emeryville, California, and
Ontario, California, more particularly described in Exhibit J attached hereto,
---------
for as long as the Borrower's interest in such Property is a leasehold
interest. Regardless of the improvements located thereon, none of the Sale-
Leaseback Properties shall be considered to be an Industrial Property, an Office
Property or a Retail Property for so long as Borrower's interest in such
Property is a leasehold interest.
"SEC" means the Securities and Exchange Commission, or any
---
Governmental Authority succeeding to any of its principal functions.
"Senior Officer" means the chief executive officer, chief financial
--------------
officer, the vice president-finance or general counsel of Borrower.
"Solvent" means, as to any Person at any time, that (a) the fair value
-------
of the property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated liabilities) as
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such value is established and liabilities evaluated for purposes of Section
101(31) of the Bankruptcy Code and, in the alternative, for purposes of the
California Uniform Fraudulent Transfer Act; (b) the present fair saleable value
of the property of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become
absolute and matured; (c) such Person is able to realize upon its property and
pay its debts and other liabilities (including disputed, contingent and
unliquidated liabilities) as they mature in the normal course of business; (d)
such Person does not intend to, and does not believe that it will, incur debts
or liabilities beyond such Person's ability to pay as such debts and liabilities
mature; and (e) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital.
"Subsidiary" of a Person means, as of any date of determination, any
----------
corporation, partnership, joint venture or other business entity, whether now
existing or hereafter organized or acquired: (a) (i) in the case of a
corporation, of which a majority of the securities having ordinary voting power
for the election of directors or other governing body (other than securities
having such power only by reason of the happening of a contingency) are at the
time owned by such Person or by one or more Subsidiaries of such Person, or (ii)
in the case of a partnership, joint venture or other business entity, of which
such Person or a Subsidiary of such Person is a general partner or joint
venturer or of which a majority of the partnership or other ownership interests
are at the time owned by such Person or by one or more of its Subsidiaries, and
(b) the financial condition and results of which would be consolidated with the
financial condition and results of such Person under GAAP, consistently applied.
"Supermajority Banks" means at any time at least two Banks then
-------------------
holding at least 76% of the then aggregate unpaid principal amount of the Loans,
or, if no such principal amount is then outstanding, at least two Banks then
having at least 76% of the aggregate amount of the Commitments.
"Surety Instrument" means any letter of credit (including standby and
-----------------
commercial), banker's acceptance, bank guaranty, surety bond or similar
instrument.
"Swap Contract" means any agreement, whether or not in writing,
-------------
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap or
option, bond, note or xxxx option, interest rate option, forward foreign
exchange transaction, cap, collar or floor transaction, currency swap, cross-
currency rate swap, swaption, currency option or any other, similar transaction
(including any option to enter into any of the foregoing) or any combination of
the foregoing and, unless the context otherwise clearly requires, any master
agreement relating to or governing any or all of the foregoing.
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"Tangible Net Worth" means, as of any date of determination, the
------------------
consolidated total stockholders= equity of the Borrower and its subsidiaries
(net of intangible assets) using the historical cost method in accordance with
GAAP, consistently applied, based on the Borrower's consolidated balance sheet
for the most recent fiscal period.
"Taxes" means any and all present or future taxes, levies, imposts,
-----
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank and the Administrative Agent, such taxes
(including income taxes or franchise taxes) as are imposed on or measured by
such Person's net income, gross income or net worth.
"Total Assets" means, as of any date of determination, the aggregate
------------
amount of all assets of the Borrower and its subsidiaries, as shown on the
Borrower's consolidated balance sheet for the most recent fiscal period, plus
----
accumulated depreciation as of such date; provided, however, that the Borrower's
--------
investment in any affiliate of the Borrower whose financial results are not
consolidated with those of the Borrower for financial reporting purposes in
accordance with GAAP shall be an amount equal to the Borrower's pro rata share
of such affiliate's assets (which assets shall be determined in accordance with
GAAP).
"Total Liabilities" means, as of any date of determination, the
-----------------
aggregate amount of all liabilities of the Borrower and its subsidiaries, as
shown on the Borrower's consolidated balance sheet for the most recent fiscal
period, plus Contingent Obligations of the Borrower.
----
"Type" means, in connection with a Loan, the characterization of such
----
Loan as a Base Rate Loan or a LIBOR Loan.
"UCC" means the Uniform Commercial Code as in effect in the State of
---
California.
"United States" and "U.S." each means the United States of America.
------------- ----
1.2 Other Interpretive Provisions .
-----------------------------
1.2.1 Use of Defined Terms. Unless otherwise specified herein or
--------------------
therein, all terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant to
this Agreement. The meaning of defined terms shall be equally applicable to the
singular and plural forms of the defined terms. Terms (including uncapitalized
terms) not otherwise defined herein and that are defined in the UCC shall have
the meanings therein described.
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1.2.2 Certain Common Terms.
--------------------
(a) The Agreement . The words "hereof," "herein," "hereunder"
-------------
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement,
and section, schedule and exhibit references are to this Agreement unless
otherwise specified.
(b) Documents . The term "documents" includes any and all
---------
instruments, documents, agreements, certificates, indentures, notices and
other writings, however evidenced.
(c) Including . The term "including" is not limiting and means
---------
"including without limitation."
(d) Performance . Whenever any performance obligation
-----------
hereunder (including a payment obligation) shall be stated to be due or
required to be satisfied on a day other than a Business Day, such
performance shall be made or satisfied on the next succeeding Business Day.
In the computation of periods of time from a specified date to a later
specified date (other than with respect to computation of interest owed or
accrued under this Agreement), the word "from" means "from and including"
and the words "to" and "until" each mean "to and including". If any
provision of this Agreement refers to any action taken or to be taken by
any Person, or which such Person is prohibited from taking, such provision
shall be interpreted to encompass any and all reasonable means, direct or
indirect, of taking or not taking such action.
(e) Contracts . Unless otherwise expressly provided in this
---------
Agreement, references to agreements and other contractual instruments shall
be deemed to include all subsequent amendments and other modifications
thereto, but only to the extent such amendments and other modifications are
not prohibited by the terms of any Loan Document.
(f) Laws . References to any statute or regulation are to be
----
construed as including all statutory and regulatory provisions
consolidating, amending or replacing the statute or regulation.
(g) Captions . The captions and headings of this Agreement are
--------
for convenience of reference only, and shall not affect the construction of
this Agreement.
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(h) Independence of Provisions . If a conflict exists between
--------------------------
the terms of this Agreement and those of any other Loan Document, this
Agreement shall prevail; provided, however, that the parties acknowledge
--------
that this Agreement and the other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters,
and that such limitations, tests and measurements are cumulative and must
each be performed, except as expressly stated to the contrary in this
Agreement, or unless the applicable provisions are inconsistent or cannot
be simultaneously enforced or performed.
(i) Exhibits . All of the exhibits attached to this Agreement
--------
are incorporated herein by this reference.
1.2.3 Accounting Principles.
---------------------
(a) Accounting Terms . Unless the context otherwise clearly
----------------
requires, all accounting terms not expressly defined herein shall be
construed, and all financial computations required under this Agreement
shall be made, in accordance with GAAP, consistently applied.
(b) Fiscal Periods . References herein to "fiscal year" and
--------------
"fiscal quarter" refer to such fiscal periods of the Borrower.
ARTICLE 2.
THE CREDITS
-----------
2.1 Amounts and Terms of Commitments . Each Bank severally agrees, on
--------------------------------
the terms and subject to the conditions set forth in this Agreement,
(a) to make Loans to the Borrower (each, a "Loan")from time to time
on any Business Day during the period from the Closing Date to the Maturity
Date, in an aggregate amount not to exceed at any time outstanding such Bank=s
Pro Rata Share of the Availability, as the same may be reduced as a result of
one or more assignments permitted under Section 10.6, and
------------
(b) to fund drawings on any Letters of Credit that BofA issues for
the Borrower's account from time to time, in an aggregate amount not to exceed
at any time outstanding such Bank=s Pro Rata Share of the amount of such
drawing.
BofA agrees to issue Letters of Credit for the Borrower's account on any
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Business Day during the period from the Closing Date to the Maturity Date, for
any purpose, in an aggregate amount not to exceed Fifteen Million Dollars
($15,000,000.00) at any time outstanding; provided, however, that no Letter of
--------
Credit shall have an expiry date later than the Maturity Date. Notwithstanding
any contrary provision of this Agreement, the aggregate principal amount of all
outstanding Loans shall not at any time exceed the Availability, and the
aggregate amount of outstanding but undrawn Letters of Credit shall be
considered a portion of the principal amount outstanding on the Loans for
purposes of determining (x) the amount of Availability remaining available for
disbursement, (y) mandatory repayments under Section 2.6.3 and (z) computation
-------------
of the unused fee pursuant to Section 2.9.3. Within the limits of each Bank's
-------------
Commitment, and subject to the other terms and conditions hereof, the Borrower
may borrow under this Section 2.1, repay under Section 2.5 and reborrow under
----------- -----------
this Section 2.1.
-----------
2.2 Loan Accounts .
-------------
(a) The Loans made by each Bank shall be evidenced by one or more loan
accounts or records maintained by such Bank in the ordinary course of business.
The loan accounts or records maintained by the Administrative Agent and each
Bank shall be conclusive, absent manifest error, of the amount of the Loans made
by the Banks to the Borrower and the interest and payments thereon. Any failure
to record any such amounts or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrower hereunder to pay any amount
owing with respect to the Loans.
(b) Upon the request of any Bank made through the Administrative
Agent, the Loans made by such Bank may be evidenced by one or more Notes,
instead of loan accounts. Each such Bank may endorse on schedules annexed to
its Note(s) the date, amount (which shall not include undrawn amounts on
outstanding Letters of Credit, but shall include the amounts of any drawings on
outstanding Letters of Credit) and maturity of each Loan made by it and the
amount of each payment of principal made by the Borrower with respect thereto.
Each such Bank is irrevocably authorized by the Borrower to endorse its Note(s),
and each Bank's record shall be conclusive absent manifest error; provided,
--------
however, that the failure of a Bank to make, or an error in making, a notation
-------
thereon with respect to any Loan shall not limit or otherwise affect the
obligations of the Borrower hereunder or under any such Note to such Bank.
2.3 Procedure for Borrowing .
-----------------------
2.3.1 Each Borrowing shall be made and each Letter of Credit shall
be issued upon the Borrower's irrevocable written notice (including notice by
facsimile, confirmed immediately by telephone) delivered to the Administrative
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Agent in the form of a Notice of Borrowing (which notice must be received by the
Administrative Agent prior to 11:00 a.m. San Francisco time (i) four (4)
Business Days prior to the requested Borrowing Date, in the case of LIBOR Loans,
(ii) one (1) Business Day prior to the requested Borrowing Date, in the case of
Base Rate Loans, or (iii) five (5) Business Days prior to the requested issuance
date of a Letter of Credit) specifying:
(a) the amount of the Borrowing or the Letter of Credit, which
for any Borrowing shall be in an aggregate minimum amount of $2,500,000 or
any multiple of $100,000 in excess thereof, and for any Letter of Credit
may be any amount; provided, however, that the aggregate minimum amount of
--------
LIBOR Loans in respect of any Borrowing shall be $5,000,000.00 or any
multiple of $100,000.00 in excess thereof;
(b) the requested Borrowing Date or Letter of Credit issuance
date, which shall be a Business Day;
(c) the Type of Loans comprising the Borrowing; and
(d) the duration of the Interest Period applicable to such Loans
included in such notice. If the Notice of Borrowing fails to specify the
duration of the Interest Period for any Borrowing comprised of LIBOR Loans,
such Interest Period shall be one (1) month; provided, however, that with
-------- -------
respect to the Borrowing to be made on the Closing Date, the Notice of
Borrowing shall be delivered to the Administrative Agent not later than
11:00 a.m. San Francisco time one (1) Business Day before the Closing Date,
and such Borrowing will consist of Base Rate Loans only.
Notwithstanding the foregoing provisions of this Section 2.3.1, any amount drawn
-------------
under a Letter of Credit shall, from and after the date on which such drawing is
made, constitute a Borrowing for all purposes under this Agreement (including
accrual and payment of interest and repayment of principal) other than
disbursement of Loan proceeds under this Section 2.3.1.
-------------
2.3.2 The Administrative Agent will notify each Bank (a) on the day
of its receipt of any Notice of Borrowing, in the case of a request for a
Borrowing consisting of Base Rate Loans, and (b) within one (1) Business Day
after its receipt of any Notice of Borrowing, in the case of a request for a
Borrowing consisting of LIBOR Loans, of the amount of such Bank's Pro Rata Share
of that Borrowing.
2.3.3 Each Bank will make the amount of its Pro Rata Share of each
Borrowing available to the Administrative Agent for the account of the Borrower
at the Administrative Agent's Payment Office by 11:00 a.m. San Francisco time on
the Borrowing Date requested by the Borrower in funds immediately available to
the Administrative Agent. The Administrative Agent will then make the proceeds
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of all such Loans available to the Borrower by wire transfer to a deposit
account designated by the Borrower of like funds as received by the
Administrative Agent.
2.3.4 After giving effect to any Borrowing, there may not be more
than eight (8) different Interest Periods in effect.
2.3.5 Borrowings and/or the issuance of Letters of Credit shall be
made on not more than three (3) Business Days during any calendar month without
payment of a fee. The Borrower shall pay to the Administrative Agent, on the
date of each additional Borrowing and/or issuance of a Letter of Credit, an
administration fee of $1,500.00 for each additional Business Day during any
calendar month on which one or more Borrowings occurs and/or a Letter of Credit
is issued.
2.4 Conversion and Continuation Elections .
-------------------------------------
2.4.1 The Borrower may, upon irrevocable written notice to the
Administrative Agent in accordance with Section 2.4.2:
-------------
(a) elect, as of any Business Day, in the case of Base Rate
Loans, or as of the last day of the applicable Interest Period, in the case
of LIBOR Loans, to convert any such Loans (or any part thereof in an amount
not less than $5,000,000.00, or that is in an integral multiple of $100,000
in excess thereof) into Loans of any other Type; or
(b) elect, as of the last day of the applicable Interest Period,
to continue any Loans having Interest Periods expiring on such day (or any
part thereof in an amount not less than $5,000,000.00, or that is in an
integral multiple of $100,000 in excess thereof);
provided, that if at any time the aggregate amount of LIBOR Loans in respect of
--------
any Borrowing is reduced, by payment, prepayment, or conversion of part thereof
to be less than $5,000,000, such LIBOR Loans shall automatically convert into
Base Rate Loans, and on and after such date the right of the Borrower to
continue such Loans as, and convert such Loans into, LIBOR Loans shall
terminate.
2.4.2 The Borrower shall deliver a Notice of Conversion/Continuation
by facsimile, immediately confirmed in writing, to be received by the
Administrative Agent not later than 11:00 a.m. San Francisco time at least (i)
four (4) Business Days in advance of the Conversion/Continuation Date, if the
Loans are to be converted into or continued as LIBOR Loans; and (ii) one (1)
Business Day in advance of the Conversion/ Continuation Date, if the Loans are
to be converted into Base Rate Loans (provided, however, that the Administrative
--------
Agent may, in its discretion, permit the Borrower's chief financial officer,
treasurer or controller to give such notice by telephone, to be followed by a
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written Notice of Conversion/Continuation within forty-eight (48) hours),
specifying:
(a) the proposed Conversion/Continuation Date;
(b) the aggregate amount of Loans to be converted or renewed;
(c) the Type of Loans resulting from the proposed conversion or
continuation; and
(d) other than in the case of conversions into Base Rate Loans,
the duration of the requested Interest Period.
2.4.3 If upon the expiration of any Interest Period applicable to
LIBOR Loans the Borrower has failed to select timely a new Interest Period to be
applicable to such LIBOR Loans, or if any Event of Default then exists, the
Borrower shall be deemed to have elected to convert such LIBOR Loans into Base
Rate Loans effective as of the expiration date of such Interest Period.
2.4.4 The Administrative Agent will notify each Bank within one (1)
Business Day after its receipt of a Notice of Conversion/Continuation, or, if no
timely notice is provided by the Borrower, the Administrative Agent will
promptly notify each Bank of the details of any automatic conversion. All
conversions and continuations shall be made ratably according to the respective
outstanding principal amounts of the Loans with respect to which the notice was
given.
2.4.5 Unless the Majority Banks otherwise agree, (a) during the
existence of a Monetary Default, the Borrower may not elect to have a Loan
converted into or continued as a LIBOR Loan having an Interest Period longer
than one (1) month, and (b) during the existence of an Event of Default, the
Borrower may not elect to have a Loan converted into or continued as a LIBOR
Loan.
2.4.6 After giving effect to any conversion or continuation of
Loans, there may not be more than eight (8) different Interest Periods in
effect.
2.5 Optional Prepayments . Subject to the provisions of Section 3.4, the
-------------------- -----------
Borrower may, at any time or from time to time (but in no event more often than
three times during any calendar month, unless the Borrower pays to the
Administrative Agent an administrative fee of $1,500.00 for each additional
prepayment), upon not less than one (1) Business Days' irrevocable written
notice to the Administrative Agent, ratably prepay Loans in whole or in part, in
minimum amounts of $2,500,000.00 or any multiple of $100,000.00 in excess
thereof. Such notice of prepayment shall specify the date and amount of such
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prepayment and the Type(s) of Loans to be prepaid. The Administrative Agent
will promptly notify each Bank of its receipt of any such notice, and of such
Bank's Pro Rata Share of such prepayment. If such notice is given by the
Borrower, the payment amount specified in such notice shall be due and payable
on the date specified therein, together with accrued interest to each such date
on the amount prepaid and any amounts required pursuant to Section 3.4;
-----------
provided, however, that the Borrower's failure to prepay the amount specified in
--------
such notice on such date shall not constitute a Default or an Event of Default
so long as the Borrower pays the amount required pursuant to Section 3.4.
-----------
2.6 Mandatory Prepayments of Loans .
------------------------------
2.6.1 Property Dispositions. If at any time or from time to time
---------------------
the Borrower shall make a Disposition with respect to a Property, then (a) the
Borrower shall notify the Administrative Agent of such proposed Disposition at
least ten (10) days prior to the requested reconveyance date and (b) promptly
upon the Borrower's receipt of the Net Proceeds of such Disposition, the
Borrower shall prepay Loans in an aggregate amount equal to the Release Price of
the Property subject to the Disposition.
2.6.2 Events of Loss. If at any time or from time to time the
--------------
Borrower shall suffer an Event of Loss with respect to a Property, then (a) the
Borrower shall promptly notify the Administrative Agent of such Event of Loss
(including the amount of the estimated Net Proceeds to be received by the
Borrower in respect thereof) and (b) except to the extent that the Net Proceeds
are to be made available for restoration pursuant to Section 5.5 of the Deed of
Trust encumbering such Property, promptly upon the Borrower's receipt of the Net
Proceeds of such Event of Loss, the Borrower shall prepay Loans in an amount
equal to the Release Price of the Property subject to such Event of Loss.
2.6.3 Remargining. The Portfolio Appraisal Value will from time to
-----------
time be adjusted (i) upon the encumbrance of an additional Property with a Deed
of Trust to secure the Obligations pursuant to Section 2.16, (ii) upon the
------------
release of a Property or a Parcel pursuant to Section 2.15, (iii) on any date on
------------
which the Construction Property Value for any Construction Property is reduced
to zero (0) pursuant to the terms of this Agreement, and (iv) on the date that
the Administrative Agent notifies the Borrower of any Bank's disapproval of a
Property or the As-Is Appraised Value of an Existing Property pursuant to
Section 2.15.3, and the amount of the Availability as of each such date shall be
--------------
adjusted solely to reflect the foregoing occurrences. If (x) the aggregate
outstanding principal amount of the Loans on the date of any such adjustment
exceeds the Availability (computed using the adjusted Portfolio Appraisal Value
determined as of such date) or (y) at any time a violation of the Portfolio Net
Cash Flow covenant of Section 6.18 has occurred, the Borrower shall, within
------------
fifteen (15) Business Days after the Administrative Agent's notice to the
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Borrower (with copies to the Banks) of the existence and amount of such excess
or of the violation of Section 6.18, either (a) prepay Loans in an aggregate
------------
amount equal to (i) the amount of such excess or (ii) in the event of a
violation of Section 6.18, an aggregate amount sufficient to remedy such
------------
violation, or (b) identify to the Administrative Agent and the Banks one or more
real properties owned by the Borrower, satisfactory to the Administrative Agent
or the Supermajority Banks, as applicable, and improved with an industrial,
manufacturing or warehouse distribution facility, a research and development
facility, an office building, or a shopping center, theater, restaurant facility
or other similar retail project or use (or any combination thereof), that, if
encumbered with Deeds of Trust for the benefit of the Administrative Agent, as
administrative agent for the Banks, would (i) cause the Availability (computed
using a Portfolio Appraisal Value that assumes that such identified real
properties have become Operating Properties) as of the date of determination to
equal or exceed the aggregate outstanding principal amount of the Loans on such
date, or (ii) in the event of a violation of Section 6.18, cause the Portfolio
------------
Net Cash Flow Coverage Ratio to satisfy the requirements of Section 6.18. The
------------
Borrower shall promptly provide to the Administrative Agent a "New Property
Information Package" containing the information described in Section 2.16.1
--------------
relating to each of the identified real properties, and the Administrative Agent
shall provide a copy of the "New Property Information Package" to each Bank. In
the event that the Borrower timely identifies one or more real properties that
satisfy the conditions set forth in clause (b), above, and promptly delivers a
"New Property Information Package" to the Administrative Agent with respect to
each such identified real property, the Administrative Agent shall cause an
Appraisal of each such identified real property to be prepared and delivered to
each of the Banks for review and comment pursuant to Section 2.16.2, the
--------------
Administrative Agent or the Supermajority Banks, as applicable, shall approve or
disapprove any such identified real property pursuant to Section 2.16.3, and if
--------------
any such identified real property is approved by the Administrative Agent or the
Supermajority Banks pursuant to Section 2.16.3, the Borrower shall cause each of
--------------
the conditions set forth in Section 2.16 with respect to such property to be
------------
satisfied not later than ninety (90) days after the Administrative Agent's
notice to the Borrower of the existence and amount of such excess or of the
violation of Section 6.18. If all such conditions have not been satisfied with
------------
respect to all of the identified properties within such ninety-day period, the
amount by which the outstanding principal amount of the Loans exceeds the
Availability shall be immediately due and payable on the first Business Day
following the end of such ninety-day period or, in the event of a violation of
Section 6.18, such failure of all such conditions shall constitute an Event of
------------
Default. Neither the Administrative Agent nor the Banks shall have the right to
reappraise any Property in connection with any adjustment of the Portfolio
Appraisal Value pursuant to this Section 2.6.3 except as specifically
-------------
contemplated in Section 2.15, with respect to the release of a Property or a
------------
Parcel thereof, or Section 2.16, with respect to the encumbrance of an
------------
additional property with a Deed of Trust.
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2.6.4 General. Any prepayments pursuant to this Section 2.6 shall
------- -----------
be applied first to any Base Rate Loans then outstanding and then to LIBOR Loans
with the shortest Interest Periods remaining; provided, however, that if the
-------- -------
amount of Base Rate Loans then outstanding is not sufficient to satisfy the
entire prepayment requirement, and so long as no Monetary Default or Event of
Default has occurred and remains uncured, the Borrower may, at its option, place
any amounts which it would otherwise be required to use to prepay LIBOR Loans on
a day other than the last day of the Interest Period therefor in an interest-
bearing account pledged to the Administrative Agent for the benefit of the Banks
until the end of such Interest Period, at which time such pledged amounts will
be applied to prepay such LIBOR
Loans. The Borrower shall pay, together with each prepayment under this Section
-------
2.6, accrued interest on the amount prepaid and any amounts required pursuant to
---
Section 3.4.
-----------
2.7 Repayment at Maturity . Subject to acceleration pursuant to the
---------------------
provisions of Section 8.2, the outstanding principal amount of the Loans shall
-----------
be due and payable in full, together with all accrued and unpaid interest, fees
and costs thereon, on the Maturity Date.
2.8 Interest .
--------
2.8.1 Accrual Rate. Each Loan shall bear interest on the
------------
outstanding principal amount thereof from the applicable Borrowing Date (which,
in the case of a drawing on a Letter of Credit, is the date of such drawing) at
a rate per annum equal to LIBOR or the Base Rate, as the case may be (and
subject to the Borrower's right to convert to other Types of Loans under Section
-------
2.4), plus the Applicable Margin.
--- ----
2.8.2 Payment. Interest on each Loan shall be paid in arrears on
-------
each Interest Payment Date. Not less than five (5) days prior to each Interest
Payment Date, the Administrative Agent shall notify the Borrower, by telecopier
or other means reasonably selected by the Administrative Agent, of the amount of
accrued and unpaid interest due and payable on such Interest Payment Date.
During the existence of any Event of Default, interest shall be paid on demand
of the Administrative Agent at the request or with the consent of the Majority
Banks.
2.8.3 Default Interest. Notwithstanding the provisions of Section
---------------- -------
2.8.1, while any Event of Default exists the Borrower shall pay interest (after
-----
as well as before entry of judgment thereon to the extent permitted by law) on
the principal amount of all outstanding Loans at a rate per annum which is
determined by adding three percent (3%) per annum to the Applicable Margin then
in effect for such Loans and, in the case of Obligations other than Loans, at a
rate per annum equal to the Base Rate plus 3%; provided, however, that, on and
-------- -------
after the expiration of any Interest Period applicable to any LIBOR Loan
outstanding on the date of occurrence of such Event of Default, the principal
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amount of such Loan shall, during the continuation of such Event of Default,
bear interest at a rate per annum equal to the Base Rate plus 3%.
2.8.4 Maximum Legal Rate. Notwithstanding any contrary provision of
------------------
this Agreement, the Borrower's Obligations to any Bank hereunder shall be
subject to the limitation that payments of interest shall not be required, for
any period for which interest is computed hereunder, to the extent (but only to
the extent) that such Bank's contracting for or receiving such payment would be
contrary to the provisions of any
law applicable to such Bank limiting the highest rate of interest that such Bank
may lawfully contract for, charge or receive, and in such event the Borrower
shall pay such Bank interest at the highest rate permitted by applicable law.
2.9 Fees .
----
2.9.1 Administrative Agent Fees. The Borrower shall pay to the
-------------------------
Administrative Agent, for the Administrative Agent's own account, such fees as
required by the letter agreement of even date herewith (the "Fee Letter")
----------
between the Borrower and the Administrative Agent.
2.9.2 Commitment Fee. The Borrower shall pay to the Administrative
--------------
Agent on the Closing Date, for the account of each Bank, a commitment fee in an
amount equal to one-half of one percent (0.50%) of the Maximum Commitment Amount
on such date.
2.9.3 Unused Fee. The Borrower shall pay to the Administrative
----------
Agent, for the account of each Bank, an unused fee equal to (i) four-tenths of
one percent (0.40%) per annum of the difference between the Maximum Commitment
Amount and the average daily amount outstanding hereunder (the "Average Unused
--------------
Amount"), if the Average Unused Amount for the determination period is greater
------
than or equal to fifty percent (50%) of the Maximum Commitment Amount, or (ii)
two-tenths of one percent (0.20%) per annum of the Average Unused Amount, if the
Average Unused Amount for the determination period is less than fifty percent
(50%) of the Maximum Commitment Amount, as calculated by the Administrative
Agent quarterly in arrears at the end of each calendar quarter after the Closing
Date, pro rated for partial calendar quarters. Such unused fee shall accrue
from the Closing Date to the Maturity Date, and shall be due and payable
quarterly in arrears on the 15th day of each January, April, July and October,
with the final payment to be made on the Maturity Date. The unused fee provided
in this Section 2.9.3 shall accrue at all times after the Closing Date,
-------------
including at any time during which one or more conditions in Article 4 are not
---------
met.
2.9.4 Letter of Credit Fees. The Borrower shall pay to the
---------------------
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Administrative Agent, for the account of each Bank, a fee with respect to
outstanding Letters of Credit equal to one and five-eighths percent (1.625%) per
annum of the aggregate face amount of all Letters of Credit outstanding
hereunder (as reduced by the aggregate amount of any drawings thereunder), as
calculated by the Administrative Agent quarterly in arrears at the end of each
calendar quarter after the Closing Date during which one or more Letters of
Credit are outstanding, pro rated for partial calendar quarters. The letter of
credit fee payable under this Section 2.9.4 shall accrue with respect to each
-------------
Letter of Credit from the date of issuance to the date of expiration,
cancellation or drawing in full, and shall be due and payable quarterly in
arrears on the 15th day of each January, April, July and October.
2.10 Computation of Interest and Fees . All computations of interest for
--------------------------------
Base Rate Loans shall be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed
(which results in more interest being paid than if computed on the basis of a
365-day year). Interest and fees shall accrue during each period during which
interest or such fees are computed from the first day thereof to the last day
thereof. Each determination of an interest rate by the Administrative Agent
shall be conclusive and binding on the Borrower and the Banks in the absence of
manifest error.
2.11 Payments by the Borrower .
------------------------
2.11.1 All payments (including prepayments) to be made by the
Borrower shall be made without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by the Borrower shall be made
to the Administrative Agent for the account of the Banks at the Administrative
Agent's Payment Office, and shall be made in dollars and in immediately
available funds, no later than 11:00 a.m. San Francisco time on the date
specified herein. The Administrative Agent will promptly distribute to each
Bank its Pro Rata Share (or other applicable share as expressly provided herein)
of such payment in like funds as received. Any payment received by the
Administrative Agent later than 11:00 a.m. San Francisco time shall be deemed to
have been received on the following Business Day, and any applicable interest or
fee shall continue to accrue.
2.11.2 Subject to the provisions set forth in the definition of the
term "Interest Period", whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
2.11.3 Unless the Administrative Agent receives notice from the
Borrower prior to the date on which any payment is due to the Banks that the
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Borrower will not make such payment in full as and when required, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Borrower has not made such
payment in full to the Administrative Agent, each Bank shall repay to the
Administrative Agent on demand such amount distributed to such Bank, together
with interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Bank until the date repaid.
2.12 Payments by the Banks to the Administrative Agent .
-------------------------------------------------
2.12.1 Unless the Administrative Agent receives notice from a Bank
on or prior to the Closing Date or, with respect to any Borrowing after the
Closing Date, at least one (1) Business Day prior to the date of such
Borrowing, that such Bank will not make available to the Administrative Agent,
for the account of the Borrower, the amount of that Bank's Pro Rata Share of the
Borrowing as and when required hereunder, the Administrative Agent may assume
that each Bank has made such amount available to the Administrative Agent in
immediately available funds on the Borrowing Date and the Administrative Agent
may (but shall not be so required), in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent any Bank shall not have made its full amount available to the
Administrative Agent in immediately available funds and the Administrative Agent
in such circumstances has made available to the Borrower such amount, that Bank
shall, on the Business Day following such Borrowing Date, make such amount
available to the Administrative Agent, together with interest at the Federal
Funds Rate for each day during such period. A notice of the Administrative
Agent submitted to any Bank with respect to amounts owing under this Section
-------
2.12.1 shall be conclusive, absent manifest error. If such amount is so made
------
available, such payment to the Administrative Agent shall constitute such Bank's
Loan on the date of Borrowing for all purposes of this Agreement. If such
amount is not made available to the Administrative Agent on the Business Day
following the Borrowing Date, the Administrative Agent will notify the Borrower
of such failure to fund and, within five (5) Business Days following written
demand by the Administrative Agent, the Borrower shall pay such amount to the
Administrative Agent for the Administrative Agent's account, together with
interest thereon for each day elapsed since the date of such Borrowing, at a
rate per annum equal to the interest rate applicable at the time to the Loans
comprising such borrowing (but without payment of any breakage costs or other
amounts described in Section 3.4).
-----------
2.12.2 The failure of any Bank to make any Loan on any Borrowing
Date shall not relieve any other Bank of any obligation hereunder to make a Loan
on such Borrowing Date, but no Bank shall be responsible for the failure of any
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other Bank to make the Loan to be made by such other Bank on any Borrowing Date.
Any Bank that fails to make a Loan to the Borrower on a Borrowing Date shall be
liable to the Borrower for such failure, and the Borrower may proceed to enforce
this Agreement against such defaulting Bank.
2.13 Sharing of Payments . If, other than as expressly provided
-------------------
elsewhere herein, any Bank shall obtain on account of the Obligations owing to
it any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its Pro Rata Share, such Bank shall
immediately (a) notify the Administrative Agent of such fact, and (b) purchase
from the other Banks such participations in the Loans made by them as shall be
necessary to cause such purchasing Bank to share the excess payment pro rata
with each of them; provided, however, that if all or any portion of such excess
--------
payment is thereafter recovered from the purchasing Bank, such purchase shall to
that extent be rescinded and each other Bank shall repay to the purchasing Bank
the purchase price paid therefor, together with an amount equal to such paying
Bank's ratable share (according to the proportion of (i) the amount of such
paying Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower
agrees that any Bank so purchasing a participation from another Bank may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off, as limited by Section 10.9) with respect to such
------------
participation as fully as if such Bank were the direct creditor of the Borrower
in the amount of such participation. The Administrative Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section 2.13, and will in each case notify
------------
the Banks following any such purchases or repayments.
2.14 Security . All obligations of the Borrower under this Agreement,
--------
the Notes and all other Loan Documents (but not including the Environmental
Indemnity) shall be secured in accordance with the Collateral Documents.
2.15 Reconveyance .
------------
2.15.1 Reconveyance of a Property. The Administrative Agent shall
--------------------------
reconvey or release a Property from the lien of the applicable Deed of Trust
upon the satisfaction of all of the following conditions precedent:
(a0 The Borrower shall have delivered to the Administrative
Agent a written request for the reconveyance or release of such Property at
least ten (10) days prior to the requested reconveyance or release date;
(b0 The Borrower shall have paid to the Administrative Agent,
for the account of the Banks, as a mandatory prepayment of principal of the
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Loans, an amount equal to the applicable Release Price for such Property;
(c0 The Borrower shall have complied, with respect to such
Property, with all applicable Requirements of Law governing the subdivision
and transfer of real property;
(d0 No Monetary Default or Event of Default shall have occurred
and be continuing, except the occurrence of any Monetary Default or Event
of Default that would be fully cured by the reconveyance or release of such
Property from the lien of the applicable Deed of Trust; and
(e0 The Borrower shall have delivered to the Administrative
Agent such endorsements to the Administrative Agent's policies of title
insurance covering the Deeds of Trust as the Administrative Agent may
reasonably request.
2.15.2 Reconveyance of a Portion of a Property. The Administrative
---------------------------------------
Agent shall reconvey a parcel ("Parcel") of a Property from the lien of the
------
applicable Deed of Trust in connection with any sale or exchange of any such
Parcel, or upon the Borrower=s request, upon the satisfaction of all of the
following conditions precedent:
(a) The Borrower shall have delivered to the Administrative
Agent, at least thirty (30) days prior to the requested reconveyance date,
a written request for reconveyance of the applicable Parcel, accompanied by
the certificate of a Responsible Officer (to which a true and complete copy
of the purchase and sale or exchange agreement for the Parcel, if any,
shall be attached as an exhibit) setting forth, in such detail as the
Administrative Agent may reasonably require, (i) if applicable, the gross
purchase price of the Parcel and (ii) a calculation of the value of the
Parcel (determined by multiplying the average per acre value of the Parcel,
based on the last full appraisal of the Property from which the Parcel is
to be released, by the size of the Parcel in acres (and fractions
thereof));
(b) The Administrative Agent shall have determined the
Availability which would exist following the release of the Parcel by
revaluing the Property from which such Parcel is to be released (the
"Revaluation Property") as follows: (i) during the period from the date of
---------------------
such release until the earlier of (A) the date on which the Administrative
Agent has completed its review and update of the last full Appraisal of the
Revaluation Property or (B) the date that is forty-five (45) days after the
release of such Parcel (the "Interim Valuation Period" for such Revaluation
------------------------
Property), the As-Is Appraised Value of the Revaluation Property shall be
reduced by the greater of (x) 100% percent of the gross purchase price of
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the Parcel, if any, or (y) an amount equal to the average per acre value of
the Parcel, based on the last full appraisal of the Revaluation Property,
multiplied by the size of the Parcel in acres (and fractions thereof); (ii)
during the period, if any, from the end of the Interim Valuation Period
until the date on which the Administrative Agent has completed its review
and update of the last full Appraisal of the Revaluation Property, the As-
Is Appraised Value of the Revaluation Property shall be further reduced by
100% of the value attributed to the remainder of the Revaluation Property
consisting of land in the last full appraisal of the Revaluation Property;
and (iii) from and after the date on which the Administrative Agent
completes its review and update of the last full Appraisal of the
Revaluation Property, the As-Is Appraised Value of the Revaluation Property
shall be based upon the Administrative Agent=s review and update of such
Appraisal (which review and update may result in a change in the As-Is
Appraised Value of the Revaluation Property, but shall be based on a
valuation as of the date of the last full Appraisal of such Property). The
Borrower shall cooperate with the Administrative Agent and provide the
Administrative Agent and its appraiser with all information regarding the
Revaluation Property reasonably required by the Administrative Agent or
such appraiser to prepare an Appraisal update for such Property. Promptly
following completion of the Appraisal update for the Revaluation Property
and, if earlier, at the end of the Interim Valuation Period, the
Administrative Agent shall notify the Borrower in writing of the revised
As-Is Appraised Value of the Revaluation Property, taking into account the
release of the Parcel. The Borrower shall pay to the Administrative Agent,
within ten (10) days after the Administrative Agent=s written demand, all
costs and expenses of the Administrative Agent's appraiser. If the
Administrative Agent determines, in accordance with this Section 2.15.2(b),
-----------------
that the Availability which would exist immediately following release of
the subject Parcel would be less than the aggregate principal amount
outstanding on the Loans, the Administrative Agent shall notify the
Borrower of such fact and of the amount of any principal prepayment
necessary to reduce the aggregate principal amount outstanding on the Loans
to the amount of the Availability. The Borrower shall thereupon have the
right to cause the condition precedent contained in this Section 2.15.2(b)
-----------------
to be satisfied by paying to the Administrative Agent, on account of the
principal of the Loan, the amount stated in the notification described
above. If the Administrative Agent determines, in accordance with this
Section 2.15.2(b), that the Availability which would exist (i) at the end
-----------------
of the Interim Valuation Period or (ii) upon completion of the Appraisal
update for the Revaluation Property would be less than the principal amount
outstanding on the Loans at such time, the Administrative Agent's notice to
the Borrower of the revised As-Is Appraised Value of the Revaluation
Property shall also notify the Borrower of such fact and of the amount of
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any principal prepayment (the "Required Principal Reduction") necessary to
----------------------------
reduce the principal amount then outstanding on the Loans to the amount of
the Availability at such time. Within ten (10) days after the
Administrative Agent's notice to the Borrower of the amount of any Required
Principal Reduction, the Borrower shall pay such Required Principal
Reduction to the Administrative Agent, for the account of the Banks, in
accordance with the mandatory prepayment provisions of Section 2.6;
-----------
(c) If the Parcel to be released is not a separate, transferrable
legal parcel on the date of this Agreement (or on the recording date of the
Deed of Trust encumbering such Parcel, if later), the Administrative Agent
shall have approved, in its reasonable discretion, the location and
configuration of the Parcel to be released and of the remaining Property;
(d) The Borrower shall have complied, with respect to the Parcel
to be released and the remaining Property, with all applicable laws, rules
and regulations governing the subdivision and transfer of real property
(and the remaining Property shall be lawfully transferable as a whole,
without the need to file a subdivision or parcel map of any kind);
(e) The Borrower shall have reserved such access, utility and
other easements over the real property to be reconveyed for the benefit of
the remaining Property as may be reasonably required by the Administrative
Agent;
(a0 No Event of Default or Monetary Default shall have occurred
and be continuing as of the date of reconveyance, except the occurrence of
any such Event of Default or Monetary Default which would be fully cured by
the reconveyance of the Parcel to be reconveyed from the lien of the Deed
of Trust; and
(b0 The Borrower shall have delivered to the Administrative
Agent such endorsements to the Administrative Agent's policies of title
insurance covering the Deeds of Trust as the Administrative Agent may
reasonably request.
In addition, upon the reconveyance or release of all of a Sale-Leaseback
Property from the lien of the Deed of Trust encumbering such Sale-Leaseback
Property, the Administrative Agent shall also release any liens or security
interests it may then hold in any of the Borrower's other rights or interests in
such Sale-Leaseback Property, including any assignment of the Borrower's option
to purchase the Sale-Leaseback Property and any pledge of the purchase money
note payable to the Borrower and secured by one or more deeds of trust
encumbering the fee interest in such Sale-Leaseback Property.
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2.15.3 Mandatory Release or Adjustment of Appraised Value. Each of
--------------------------------------------------
the Banks shall have the right, at any time on or before the date that is sixty
(60) days after the Closing Date, to approve or disapprove, in its sole and
absolute discretion, (a) each Property that is encumbered with a Deed of Trust
being recorded on the Closing Date and (b) the As-Is Appraised Value established
for each Existing Property. If within such sixty (60) day period any Bank
disapproves any such Property or the As-Is Appraised Value established for any
such Existing Property by giving written notice of such disapproval to the
Administrative Agent, the Administrative Agent shall give prompt written notice
to the Borrower of such disapproval. For purposes of determining Portfolio
Appraisal Value on and after the date of such written notice to the Borrower,
(c) any such disapproved Property shall no longer be considered and (d) the As-
Is Appraised Value of any such disapproved Existing Property shall be recomputed
making use of the "Appraised Value" of such Existing Property immediately prior
to the Closing Date under the Existing Loan Agreement. Following such
disapproval notice to the Borrower, Portfolio Appraisal Value will be
redetermined pursuant to Section 2.6.3, and the Borrower shall repay any amount
-------------
by which the outstanding principal amount of the Loans at such time exceeds the
Availability at such time pursuant to Section 2.6.3.
-------------
2.16 Encumbrance of Additional Properties .
------------------------------------
2.16.1 The Borrower may, from time to time (but in no event more
than once during any calendar month) up to three (3) months prior to the
Maturity Date, submit to the Administrative Agent for the Administrative Agent's
review and, if required by the terms of this Section 2.16, the Banks' approval,
------------
a real property (a) that is owned in fee by the Borrower or a wholly-owned
Subsidiary of the Borrower and that is improved with an industrial,
manufacturing or warehouse distribution facility, a research and development
facility, an office building, or a shopping center, theater, restaurant facility
or other similar retail project or use (or any combination thereof) (which may
include Entitled Land on which the Borrower has constructed any of the foregoing
types of improvements), at least ninety percent (90%) of the net rentable area
of which improvements has been leased to, and occupied by, paying third party
tenants under signed leases, or (b) that is owned in fee by the Borrower or a
wholly-owned Subsidiary of the Borrower and that is (i) unimproved, but
satisfies all of the conditions set forth in the definition of the term
"Entitled Land", or (ii) unimproved, but satisfies all of the conditions set
forth in the definition of the term "Construction Property", or (c) that is
owned in fee by the Borrower and satisfies all of the conditions set forth in
the definition of the term "Ground Leased Property", that the Borrower proposes
to encumber with a Deed of Trust for the benefit of the Administrative Agent, as
administrative agent for the Banks, as additional security for the Obligations.
Any such submission shall be accompanied or promptly supplemented by a "New
Property Information Package" relating to the property, containing all of the
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following information (except with respect to an improved property, for which
item (7) will not be required, an unimproved property that satisfies all of the
conditions set forth in the definition of the term "Entitled Land", for which
items (5), (6) and (7) will not be required, or an unimproved property that
satisfies all of the conditions set forth in the definition of the term
"Construction Property", for which item (6) will not be required), in form
reasonably satisfactory to the Administrative Agent:
(1 a detailed site plan for the property;
(2 the most recent written appraisal of the property (if
available);
(3 a preliminary title report (and copies of all exceptions noted
therein);
(4 a "Phase 1" environmental assessment of the property prepared
by a qualified engineer or consultant reasonably acceptable to the
Administrative Agent;
(5 a rent roll for the property, together with copies of all
tenant leases;
(6 a statement of profit and loss for the property for the most
recent twelve (12) consecutive calendar months;
(7 plans, specifications and a construction budget for any
improvements to be constructed on the property; and
(8 all other information reasonably required by the
Administrative Agent.
2.16.2 Upon its receipt of a complete New Property Information
Package for any property, the Administrative Agent shall provide a copy of such
New Property Information Package to each Bank, and shall cause an Appraisal of
the property to be prepared by (i) an independent appraiser selected by the
Administrative Agent or (ii) the BofA in-house appraisal department. The
Administrative Agent shall notify each Bank of the identity and qualifications
of the proposed appraiser, which appraiser shall be deemed approved unless a
Bank objects within three (3) Business Days after receipt of such notice. The
Administrative Agent shall deliver a copy of such Appraisal to each Bank, and
the Banks shall review such Appraisal within ten (10) Business Days after
receipt and, based upon such review and such comments as the Administrative
Agent may receive from any Bank within such ten (10) Business Day period, the
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Administrative Agent shall make such adjustments to such Appraisal as the
Administrative Agent, on behalf of the Banks, reasonably deems appropriate.
2.16.3 Within five (5) Business Days after the Administrative Agent
determines the final As-Is Appraised Value for a property, the Administrative
Agent shall determine whether such property satisfies all of the following
conditions:
(a0 such property is improved with a completed industrial,
manufacturing or warehouse distribution facility, or is an R&D Property;
(b0 100% of the net rentable area of such property is subject to
one or more signed leases to paying third party tenants expiring not less
than five (5) years after the date of the Administrative Agent's
determination; and
(c0 such property would, if encumbered with a Deed of Trust,
cause an increase in the Availability of $10,000,000.00 or less.
If the Administrative Agent determines that such property satisfies all of the
conditions set forth in this Section 2.16.3, the Administrative Agent may, in
--------------
its sole discretion, approve encumbering such property with a Deed of Trust for
the benefit of the Administrative Agent, as administrative agent for the Banks;
if the Administrative Agent determines that such property does not satisfy all
such conditions, then the Supermajority Banks may, in their sole discretion,
approve encumbering such property with a Deed of Trust for the benefit of the
Administrative Agent, as administrative agent for the Banks; provided, however,
--------
that notwithstanding the foregoing, if such property satisfies all of the
conditions set forth in the definition of the term "Construction Property" all
of the Banks, in their sole discretion, must approve encumbering such property
with a Deed of Trust for the benefit of the Administrative Agent, as
administrative agent for the Banks.
2.16.4 Upon the satisfaction of all of the conditions set forth in
Sections 4.1.2 (if required by the Administrative Agent), 4.1.3 (if required by
-------------- -----
the Administrative Agent), 4.1.6, 4.1.7, 4.1.8, 4.1.9 and 4.1.10 solely with
-------------------------------------
respect to the new property approved by the Administrative Agent or by the
Supermajority Banks, as applicable, such property shall be a "Property" for all
purposes under this Agreement and the other Loan Documents, and the Availability
shall be recomputed taking account of such additional Property.
2.17 Development of Entitled Land and Construction Properties .
--------------------------------------------------------
2.17.1 The Borrower shall have the right, without the consent of the
Administrative Agent or the Banks, to develop any of the Entitled Land
(including the performance of site work, the installation of utilities or
infrastructure, the alteration or demolition of existing improvements, if any,
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or the construction of improvements on any such Entitled Land, or the taking of
such actions as may be necessary to obtain permits or approvals for the
development of any such Entitled Land). However, unless the Borrower submits
such developed Entitled Land to the Administrative Agent pursuant to Section
-------
2.16, and such developed Entitled Land satisfies the requirements of Section
---- -------
2.16, such Property shall continue to be considered Entitled Land
----
notwithstanding the Borrower's construction of improvements thereon.
2.17.2 The Borrower shall have the right without the consent of the
Administrative Agent or the Banks to develop each Construction Property
(including the performance of site work, installation of utilities, construction
of improvements and alteration or removal of any existing improvements) to the
extent contemplated under the leases and/or the sale agreement relating to such
Construction Property. Once the Borrower has commenced construction of
improvements on a Construction Property, the Borrower shall diligently proceed
to complete construction of such improvements, free and clear of Liens,
substantially in accordance with the plans and specifications delivered to the
Administrative Agent.
2.18 Increases and Decreases in Pro Rata Shares . Upon the Borrower's
------------------------------------------
satisfaction of all of the conditions set forth in Section 4.1 of this
-----------
Agreement, each Bank whose Pro Rata Share of the combined Commitments of all of
the Banks has increased, as evidenced by the difference for each Bank between
the Pro Rata Share reflected in the Existing Loan Agreement and the Pro Rata
Share reflected in this Agreement, shall pay to the Administrative Agent, for
distribution to the Banks whose Pro Rata Shares of the combined Commitments of
all of the Banks has decreased pursuant to this Agreement, an amount equal to
the product of the increase in such Bank's Pro Rata Share (expressed as a
decimal) multiplied by the aggregate outstanding principal amount of the Loans
on the date of determination.
2.19 Increase in Maximum Commitment Amount .
-------------------------------------
2.19.1 On the terms and subject to the conditions set forth in this
Section 2.19, the Borrower may, at any time and from time to time prior to the
------------
Maturity Date, by notice to the Administrative Agent, request an increase in the
Maximum Commitment Amount by (i) permitting any Bank to increase its Commitment
(and accordingly increase the Maximum Commitment Amount by such amount), or (ii)
inviting any Eligible Assignee that has previously been approved by the
Administrative Agent in writing to become a Bank under this Agreement and to
provide a commitment to lend hereunder (and accordingly increase the Maximum
Commitment Amount by such amount); provided, however, that in no event shall
-------- -------
such actions cause the Maximum Commitment Amount to increase above $265,000,000.
2.19.2 The Administrative Agent shall notify the Banks of each such
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request by the Borrower. The Borrower, the Banks and each such Bank or Eligible
Assignee shall execute and deliver to the Administrative Agent (for the benefit
of the Administrative Agent, the Borrower and such Bank or Eligible Assignee)
supplemental signature pages to this Agreement and any Co-Lender Agreement among
the Administrative Agent and the Banks relating to this Agreement, in the form
of Exhibit K-1 attached hereto, in the case of a Bank, or in the form of Exhibit
----------- -------
K-2 hereto in the case of an Eligible Assignee (each, a "Supplemental Signature
--- ----------------------
Page"). Upon the execution and delivery of each such Supplemental Signature
----
Page, and despite any contrary provision of this Agreement (i) each such
Eligible Assignee shall become a party to this Agreement, and thereafter shall
have all of the rights and obligations of a Bank hereunder, (ii) each such
Eligible Assignee or Bank shall simultaneously pay to the Administrative Agent,
for distribution to the Banks whose Pro Rata Shares of the combined Commitments
of all of the Banks has decreased as a result of the new Commitment of such
Eligible Assignee or the increased Commitment of such Bank, an amount equal to
the product of such Eligible Assignee's Pro Rata Share (or the increase in such
Bank's Pro Rata Share), expressed as a decimal, multiplied by the aggregate
outstanding principal amount of the Loans on the date of determination, and
(iii) each such Eligible Assignee or Bank shall thereafter be obligated to make
its Pro Rata Share of Borrowings to the Borrower up to and including the amount
of such Eligible Assignee's or Bank's Pro Rata Share of the increased Maximum
Commitment Amount, on the terms and subject to the conditions set forth in this
Agreement.
2.19.3 Upon any increase in the Maximum Commitment Amount pursuant
to Section 2.19.1, the Administrative Agent shall amend Schedule 2.1 attached
-------------- ------------
hereto to reflect the revised Pro Rata Shares held by the Banks. Such amended
Schedule 2.1 shall supersede all earlier versions of Schedule 2.1, and shall be
------------ ------------
conclusive and binding absent manifest error.
2.19.4 Notwithstanding any contrary provision of this Section 2.19,
------------
no increase in the Maximum Commitment Amount will be permitted unless (a) all
then outstanding Loans constitute Base Rate Loans or (b) the Interest Periods
for all outstanding LIBOR Loans will expire (and any new Interest Periods for
any such LIBOR Loans will commence) concurrently with the date on which any
increase in the Maximum Commitment Amount becomes effective.
2.19.5 The effectiveness of any increase in the Maximum Commitment
Amount pursuant to Section 2.19.1 is subject to the Administrative Agent's
--------------
receipt of a CLTA form 108.10 indorsement or other comparable indorsement to
each policy of title insurance insuring a then-existing Deed of Trust, insuring
that the validity and priority of each such Deed of Trust is not affected by the
increase in the Maximum Commitment Amount.
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ARTICLE 3.
TAXES, YIELD PROTECTION AND ILLEGALITY
--------------------------------------
3.1 Taxes . The Borrower shall pay all Other Taxes. In addition, if
-----
after the date hereof any new Taxes are at any time imposed on any payments
under or in respect of any LIBOR Loan or any instrument or agreement required
hereunder, including payments made pursuant to this Section 3.1, and the result
-----------
thereof is to increase the cost to any Bank or its Offshore Lending Office of
making or maintaining any LIBOR Loan or to reduce the amounts received or
receivable by such Bank or its Offshore Lending Office in connection with any
LIBOR Loan, then within thirty (30) days following such Lender's request, from
time to time the Borrower shall pay all such Taxes and shall also pay to the
Administrative Agent, at the time interest is paid, all additional amounts which
such Bank specifies as necessary to preserve the yield, after payment of such
Taxes, that such Bank would have received if such taxes had not been imposed;
provided, however, that the Borrower shall not be obligated to pay such Bank any
--------
compensation attributable to any period prior to the date that is ninety (90)
days prior to the date on which such Bank gave notice to the Borrower of the
circumstance entitling such Bank to compensation. Each Bank agrees to notify
the Borrower promptly of its actual knowledge of any event that would entitle
such Bank to compensation under this Section 3.1 (and further agrees to
-----------
designate a different Lending Office with respect to its LIBOR Loans if such
redesignation will avoid the need for or reduce the amount of any such
compensation and will not, in the judgment of such Bank, be illegal or otherwise
disadvantageous to such Bank); provided further, however, that a Lender's
----------------
failure to give any such notice shall not affect the Borrower's obligation to
pay such compensation, except as otherwise expressly provided above. If any
Bank claims compensation or a right to reimbursement under this Section 3.1, the
-----------
Borrower may at any time, upon at least four (4) Business Days' prior written
notice to the Administrative Agent and the Bank and upon payment of all amounts
then due under this Section 3.1 plus any prepayment fee required under Section
----------- -------
3.4, prepay such Bank's affected LIBOR Loans or request that such Bank's LIBOR
---
Loans be converted to Base Rate Loans.
3.2 Illegality .
----------
3.2.1 If any Bank determines that (a) the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, occurring after the
date of this Agreement has made it unlawful, or (b) any central bank or other
Governmental Authority has asserted after the date of this Agreement that it is
unlawful for such Bank or its applicable Lending Office to make LIBOR Loans,
then, on notice thereof by such Bank to the Borrower and the Administrative
Agent, any obligation of such Bank to make LIBOR Loans shall be suspended until
such Bank notifies the Administrative Agent and the Borrower that the
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circumstances giving rise to such determination no longer exist.
3.2.2 If any Bank determines that it is unlawful to maintain any
LIBOR Loan, the Borrower shall, upon its receipt of notice of such fact and
demand from such Bank (with a copy to the Administrative Agent), prepay in full
such Bank's LIBOR Loans then outstanding, together with interest accrued
thereon, but without any amounts that would otherwise be required to be paid in
connection with such prepayment under Section 3.4, either on the last day of the
-----------
Interest Period thereof, if such Bank may lawfully continue to maintain such
LIBOR Loans to such day, or immediately, if such Bank may not lawfully continue
to maintain such LIBOR Loans. If the Borrower is required to so prepay any
LIBOR Loan, then concurrently with such prepayment, the Borrower shall borrow
from the affected Bank, in the amount of such repayment, a Base Rate Loan.
3.2.3 If the obligation of any Bank to make or maintain LIBOR Loans
has been so terminated or suspended, the Borrower may elect, by giving notice to
such Bank and the Administrative Agent, that all Loans which would otherwise be
made by such Bank as LIBOR Loans shall be instead Base Rate Loans.
3.2.4 Before giving any notice to the Borrower and the
Administrative Agent under this Section 3.2, the affected Bank shall designate a
-----------
different Lending Office with respect to its LIBOR Loans if such designation
will avoid the need for giving such notice or making such demand and will not,
in the judgment of such Bank, be illegal or otherwise disadvantageous to such
Bank.
3.3 Increased Costs and Reduction of Return .
---------------------------------------
3.3.1 If any Bank determines that, due to either (i) the
introduction of, or any change in or in the interpretation of, any law or
regulation occurring after the date of this Agreement or (ii) the compliance by
such Bank (or its Lending Office) with any guideline or request from any central
bank or other Governmental Authority (whether or not having the force of law)
imposed after the date hereof, there shall be any increase in the cost to such
Bank of agreeing to make or making, funding or maintaining any LIBOR Loans, then
the Borrower shall be liable for, and shall from time to time, within thirty
(30) days of demand by such Bank (with a copy of such demand to be sent to the
Administrative Agent), pay to the Administrative Agent, for the account of such
Bank, additional amounts as are sufficient to compensate such Bank for such
increased costs; provided, however, that the Borrower shall not be obligated to
--------
pay to the Administrative Agent, for the account of such Bank, any compensation
attributable to any period prior to the date that is ninety (90) days prior to
the date on which such Bank gave notice to the Borrower of the circumstance
entitling such Bank to compensation. A Bank's statement claiming compensation
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under this Section 3.3.1 and setting forth the additional amounts to be paid
-------------
hereunder shall, in the absence of manifest error, be conclusive and binding for
all purposes so long as the amount claimed is calculated and charged in the same
manner as such amounts are generally calculated and charged for such Bank's
other similarly situated borrowers. Each Bank agrees promptly to notify the
Borrower (with a copy to the Administrative Agent) of its actual knowledge of
any event that would entitle such Bank to compensation under this Section 3.3.1
-------------
(and further agrees to designate a different Lending Office with respect to its
LIBOR Loans if such redesignation will avoid the need for, or reduce the amount
of, any such compensation and will not, in the judgment of such Bank, be illegal
or otherwise disadvantageous to such Bank); provided further, however, that a
----------------
Bank's failure to give any such notice(s) shall not affect the Borrower's
obligation to pay such additional amounts hereunder, except as otherwise
expressly provided above. If any Bank claims compensation under this Section
-------
3.3.1, the Borrower may at any time, upon at least four (4) Business Days' prior
-----
written notice to the Administrative Agent and such Bank, and upon payment of
all amounts required under this Section 3.3.1 plus any prepayment fee required
------------- ----
under Section 3.4, prepay such Bank's LIBOR Loans or request that such Bank's
-----------
LIBOR Loans be converted to Base Rate Loans.
.
3.3.2 If after the date of this Agreement any Bank determines that
(i) the introduction of any Capital Adequacy Regulation, (ii) any change in any
Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration
thereof, or (iv) compliance by such Bank (or its Lending Office), or any
corporation controlling such Bank, with any Capital Adequacy Regulation imposed
after the date hereof affects or would affect the amount of capital required or
expected to be maintained by such Bank or any corporation controlling such Bank,
and such Bank (taking into consideration such Bank's or such corporation's
policies with respect to capital adequacy and such Bank's desired return on
capital) determines that the amount of such capital is increased as a
consequence of its Commitment, loans, credits or obligations under this
Agreement, then, within thirty (30) days of such Bank's demand to the Borrower
(with a copy to the Administrative Agent), the Borrower shall pay to the
Administrative Agent, for the account of such Bank, from time to time as
specified by such Bank, additional amounts sufficient to compensate such Bank
for such increase; provided, however, that the Borrower shall not be obligated
--------
to pay to the Administrative Agent, for the account of such Bank, any
compensation attributable to any period prior to the date that is ninety (90)
days prior to the date on which such Bank gives notice to the Borrower of the
circumstance entitling such Bank to compensation. Each Bank agrees promptly to
notify the Borrower (with a copy to the Administrative Agent) of any
circumstances that would cause the Borrower to pay additional amounts pursuant
to this Section 3.3.2; provided further, however, that a Bank's failure to give
------------- ----------------
any such notice(s) shall not affect the Borrower's obligation to pay such
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additional amounts hereunder, except as otherwise expressly provided above.
Notwithstanding the foregoing, the Borrower shall not be required to pay any
amount to any Bank under this Section 3.3.2 if such Bank has previously received
-------------
the compensation otherwise payable hereunder as a result of any other payment
made by the Borrower to such Bank under any other section of this Agreement or
under one of the other Loan Documents.
.
3.4 Funding Losses . The Borrower shall reimburse each Bank, and hold
--------------
each Bank harmless from, any loss or expense which the Bank may sustain or incur
as a consequence of:
(a0 the Borrower's failure to borrow, continue or convert a Loan
after the Borrower has given (or is deemed to have given) a Notice of Borrowing
or a Notice of Conversion/Continuation;
(b0 the Borrower's failure to make any prepayment in accordance with
any notice delivered under Section 2.5;
-----------
(c0 the prepayment (including pursuant to Section 2.6) or other
-----------
payment (including after acceleration thereof) of a LIBOR Loan on a day that is
not the last day of the relevant Interest Period, except as otherwise provided
in Section 3.2.2; or
-------------
(d0 the automatic conversion under Section 2.4 of any LIBOR Loan to a
-----------
Base Rate Loan on a day that is not the last day of the relevant Interest
Period;
to the extent that any such loss or expense arises from the liquidation or
reemployment of funds obtained by it to maintain its LIBOR Loans or from fees
payable to terminate the deposits from which such funds were obtained. For
purposes of this Section 3.4, the loss or expense arising from the liquidation
-----------
or reemployment of funds obtained to maintain any LIBOR Loans shall be an amount
equal to the sum of (i) $250.00 and (ii) the amount, if any, by which X exceeds
Y, and (iii) all other costs and expenses that such Bank would reasonably expect
to incur in connection with the prepayment of the applicable LIBOR Loans, where
"X" equals the additional interest that would have accrued on the principal
amount of the LIBOR Loan prepaid, without regard to the Applicable Margin, if
that principal amount had remained outstanding until the last day of the
applicable Interest Period, and "Y" equals the interest that such Bank could
recover by placing the prepaid funds on deposit in the London U.S. Dollar
interbank market for a period beginning on the day of prepayment and ending on
the last day of the applicable Interest Period, or for a comparable period for
which an appropriate rate quote can be obtained. For purposes of calculating
amounts payable by the Borrower to a Bank under this Section 3.4 and under
-----------
Section 3.3.1, each LIBOR Loan made by a Bank (and each related reserve, special
-------------
deposit or similar requirement) shall be conclusively deemed to have been funded
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at the LIBOR for such LIBOR Loan by a matching deposit or other borrowing in the
London U.S. Dollar interbank market for a comparable amount and for a comparable
period, whether or not such LIBOR Loan is in fact so funded.
3.5 Inability to Determine Rates . If the Majority Banks reasonably
----------------------------
determine that for any reason beyond their reasonable control adequate and
reasonable means do not exist for determining LIBOR for any requested Interest
Period with respect to a proposed LIBOR Loan, or that the LIBOR applicable
pursuant to Section 2.8.1 for any requested Interest Period with respect to a
-------------
proposed LIBOR Loan does not adequately and fairly reflect the cost to such
Banks of funding such Loan (and, as a matter of general policy, the Majority
Banks are not making LIBOR Loans to other borrowers similarly situated), the
Administrative Agent will promptly so notify the Borrower and each Bank.
Thereafter, the obligation of the Banks to make or maintain LIBOR Loans
hereunder shall be suspended until the Administrative Agent, upon the
instruction of the Majority Banks, revokes such notice in writing. Upon receipt
of such notice, the Borrower may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Borrower does not revoke
such Notice, the Banks shall make, convert or continue the Loans, as proposed by
the Borrower, in the amount specified in the applicable notice submitted by the
Borrower, but such Loans shall be made, converted or continued as Base Rate
Loans instead
of LIBOR Loans. No breakage or other costs described in Section 3.4 shall be
-----------
charged or payable in connection with any revocation of a notice by Borrower or
any conversion of LIBOR Loans under this Section 3.5.
-----------
3.6 Certificates of Banks . Any Bank claiming reimbursement or
---------------------
compensation under this Article 3 shall deliver to the Borrower (with a copy to
---------
the Administrative Agent) a certificate setting forth in reasonable detail the
amount payable to such Bank hereunder, and such certificate shall be conclusive
and binding on the Borrower (a) so long as the amount payable is calculated and
charged in the same manner as such amounts are calculated and charged generally
to such Bank's other borrowers similarly situated and (b) in the absence of
manifest error.
3.7 Survival . The agreements and obligations of the Borrower in this
--------
Article 3 shall survive the payment and performance of all other Obligations.
---------
ARTICLE 4.
CONDITIONS PRECEDENT
--------------------
4.1 Conditions of Initial Loans . The obligation of each Bank to make
---------------------------
its initial Loan hereunder is subject to the condition that the Administrative
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Agent shall have received on or before the Closing Date all of the following, in
form and substance reasonably satisfactory to the Administrative Agent and each
Bank, and in sufficient copies for each Bank:
4.1.1 Credit Agreement, Notes and Environmental Indemnity . This
---------------------------------------------------
Agreement, the Notes and the Environmental Indemnity covering each of the
Properties, each executed by the Borrower.
4.1.2 Resolutions; Incumbency .
-----------------------
(a0 Copies of the resolutions of the board of directors of the
Borrower and each Subsidiary that owns a Property authorizing the
transactions contemplated hereby, certified as of the Closing Date by the
Secretary or an Assistant Secretary of the Borrower or such Subsidiary; and
(b0 A certificate of the Secretary or Assistant Secretary of the
Borrower and each Subsidiary that owns a Property certifying the names and
true signatures of the officers of the Borrower or such Subsidiary
authorized to execute and deliver this Agreement, all other Loan Documents
to be delivered by it hereunder, and the Environmental Indemnity.
4.1.3 Organization Documents; Good Standing . Each of the following
-------------------------------------
documents:
(a0 the articles or certificate of incorporation of the Borrower
and each Subsidiary that owns a Property as in effect on the Closing Date,
certified by the Secretary of State of the jurisdiction of the Borrower's
or such Subsidiary's incorporation; and
(b0 good standing and tax good standing certificates for the
Borrower and each Subsidiary that owns a Property from the Secretary of
State (or similar, applicable Governmental Authority) of its state of
incorporation and each state in which a Property is located, as of a recent
date.
4.1.4 Legal Opinions .
--------------
(a0 one or more opinions of counsel to the Borrower and each
Subsidiary that owns a Property addressed to the Administrative Agent and
the Banks, collectively substantially in the form of Exhibit D-1; and
-----------
(b0 opinions of local counsel to the Administrative Agent in the
States of Arizona, Colorado, Illinois, Kansas, Oklahoma, Oregon and Texas
addressed to the Administrative Agent and the Banks, substantially in the
form of Exhibit D-2.
-----------
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4.1.5 Payment of Fees . Evidence of payment by the Borrower of all
---------------
accrued and unpaid fees, costs and expenses to the extent then due and payable
on the Closing Date, together with Attorney Costs of BofA to the extent invoiced
prior to or on the Closing Date, plus such additional amounts of Attorney Costs
as shall constitute BofA's reasonable estimate of Attorney Costs incurred or to
be incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude final settling of accounts between the Borrower
and BofA); including any such costs, fees and expenses arising under or
referenced in Sections 2.9 and 10.4.
---------------------
4.1.6 Collateral Documents . The Collateral Documents and all
--------------------
Modification Agreements, executed by the Borrower, in appropriate form for
recording, where necessary, together with:
(a0 copies of all UCC-1 financing statements to be filed,
registered or recorded to perfect the security interests of the
Administrative Agent, for the benefit of the Banks, or other evidence
satisfactory to the Administrative Agent that there will be filed,
registered or recorded all financing statements and other filings,
registrations and recordings necessary and advisable to perfect the Liens
of the Administrative Agent, for the benefit of the Banks, in accordance
with applicable law;
(b0 written advice relating to such Lien and judgment searches
as the Administrative Agent shall have requested, and such termination
statements or other documents as may be necessary to confirm that the
Collateral is subject to no other Liens in favor of any Persons (other than
Permitted Liens);
(c0 evidence that all other actions necessary or, in the
reasonable opinion of the Administrative Agent or the Banks, desirable to
perfect and protect the first priority security interest created by the
Collateral Documents will be taken, including the recording of each of the
Deeds of Trust and each of the Modification Agreements, as applicable;
(d0 funds sufficient to pay any filing or recording tax or fee
in connection with any and all UCC-1 financing statements and the Deeds of
Trust;
(e0 with respect to each Property, an A.L.T.A. Form B lender's
policy of title insurance, to the extent available in the jurisdiction in
which the applicable Property is located (or other form available in the
jurisdiction in which the applicable Property is located and otherwise
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acceptable to the Administrative Agent and the Banks), or a binder
therefor, issued by a title insurance company satisfactory to the
Administrative Agent and the Banks (the Administrative Agent and the Banks
hereby acknowledging that Chicago Title Insurance Company is acceptable)
insuring (or undertaking to insure, in the case of a binder) that the
applicable Deed of Trust, as modified by the applicable Modification
Agreement, if any, creates and constitutes a valid first Lien encumbering
such Property in favor of the Administrative Agent, subject only to
exceptions reasonably acceptable to the Administrative Agent and the Banks,
with such endorsements, affirmative insurance and reinsurance as the
Administrative Agent or any Bank may reasonably request;
(f0 evidence that the Administrative Agent has been named as
loss payee under all policies of casualty insurance, and as additional
insured under all policies of liability insurance, required by this
Agreement or the applicable Deed of Trust;
(g0 to the extent required under Section 6.6, evidence of flood
-----------
insurance and earthquake insurance meeting the requirements of Section 6.6;
-----------
(h0 current A.L.T.A. surveys and surveyor's certification as to
each Property in respect of which there is delivered a Deed of Trust, or as
may be reasonably required by the Administrative Agent, each in form and
substance reasonably satisfactory to the Administrative Agent and the
Banks;
(i0 Appraisals of each Property;
(j0 proof of payment of all title insurance premiums,
documentary stamp or intangible taxes, recording fees and mortgage taxes
payable in connection with the recording of any Deed of Trust or the
issuance of the title insurance policies (whether due on the Closing Date
or in the future);
(k0 an estoppel certificate executed by the tenant under any
lease of a Property that covers twenty-five percent (25%) or more of the
net rentable area of such Property; and
(l0 evidence that all other actions necessary or, in the
reasonable opinion of the Administrative Agent or the Banks, desirable to
perfect and protect any of the first priority Liens created by the
Collateral Documents, and to enhance the Administrative Agent's ability to
preserve and protect its interests in and access to any of the Collateral,
have been taken.
4.1.7 Environmental Review . An environmental site assessment with
--------------------
respect to each Property as to which the Administrative Agent is granted a Lien,
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for the benefit of the Banks, dated as of a recent date prior to the Closing
Date, prepared by a qualified firm reasonably acceptable to the Administrative
Agent and the Banks (the Administrative Agent and the Banks hereby approving
Dames & Xxxxx), confirming, among other things, that such Property is either
free from Hazardous Materials that violate applicable Environmental Laws or has
an acceptable remediation plan in place and that the current operations
conducted thereon are in compliance with all Environmental Laws.
4.1.8 Lease Review . Copies of all leases of each Property, which
------------
leases shall be satisfactory in form and substance to the Administrative Agent.
4.1.9 Certificate . A certificate signed by a Senior Officer, dated
-----------
as of the Closing Date, stating that:
(a) the representations and warranties contained in Article 5 are
---------
true and correct on and as of such date, as though made on and as of such
date;
(b) no Default or Event of Default exists or would result from
the initial Borrowing; and
(c) there has occurred since December 31, 1997, no event or
circumstance that has resulted or could reasonably be expected to result in
a Material Adverse Effect.
4.1.10 Establishment of Appraised Values. Subject to the provisions
---------------------------------
of Section 2.15.3, As-Is Appraised Values shall have been established for each
--------------
Operating Property and parcel of Entitled Land listed on Exhibit G, and As-
---------
Completed Appraised Values shall have been established for each Construction
Property listed on Exhibit G.
---------
4.1.11 Other Documents. Such other approvals, opinions, documents
---------------
or materials as the Administrative Agent or any Bank may reasonably request.
4.2 Conditions to All Borrowings . The obligation of each Bank to make
----------------------------
any Loan to be made by it (including its initial Loan) is subject to the
satisfaction of all of the following conditions precedent on the relevant
Borrowing Date:
4.2.1 Notice of Borrowing . The Administrative Agent shall have
-------------------
received (with, in the case of the initial Loan only, a copy for each Bank) a
Notice of Borrowing.
4.2.2 Continuation of Representations and Warranties . The
----------------------------------------------
representations and warranties in Article 5 shall be true and correct on and as
---------
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of such Borrowing Date with the same effect as if made on and as of such
Borrowing Date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and correct
as of such earlier date); provided, however, that in connection with any Notice
--------
of Borrowing, the Borrower may supplement or update the representations and
warranties set forth in Article 5, by written notice to the Administrative
---------
Agent, and Article 5 shall automatically be deemed modified so long as the
---------
modifications requested by Borrower do not reflect changes in facts or
circumstances which constitute a Material Adverse Effect.
4.2.3 No Existing Default . No Monetary Default, other Default that
-------------------
the Borrower is not in the process of curing (to the extent permitted by Section
-------
8.1) or Event of Default shall exist or shall result from such Borrowing.
---
4.2.4 No Future Advance Notice . Neither the Administrative Agent
------------------------
nor any Bank shall have received from the Borrower, or from any other Person who
has reasonable cause to know, any notice that any Collateral Document will no
longer secure on a first priority basis future advances or future Loans to be
made or extended under this Agreement.
4.2.5 Further Assurances . The Borrower shall have executed and
------------------
acknowledged (or caused to be executed and acknowledged) and delivered to the
Administrative Agent all documents, and taken all actions, reasonably required
by the Administrative Agent from time to time to confirm the rights created or
now or hereafter intended to be created under the Loan Documents or the
Environmental Indemnity, to protect and further the validity, priority and
enforceability of the applicable Collateral Documents, to subject to the
Collateral Documents any property intended by the terms of any Loan Document to
be covered by the Collateral Documents, or otherwise to carry out the purposes
of the Loan Documents and the transactions contemplated by the Loan Documents.
4.2.6 Title Indorsements . The Administrative Agent shall have
------------------
received, at the Borrower's sole expense, a commitment for quarterly date-down
indorsements to the policies of title insurance covering the Properties, all in
form and substance satisfactory to the Administrative Agent and issued by the
title insurer that issued the original title policies.
Each Notice of Borrowing submitted by the Borrower hereunder shall constitute a
representation and warranty by the Borrower hereunder, as of the date of each
such notice and as of each Borrowing Date, that the conditions in Section 4.2
-----------
are satisfied, except as otherwise specified therein.
4.3 Letters of Credit . In addition to the conditions set forth in
-----------------
Sections 4.1 and 4.2, BofA=s obligation to issue any Letter of Credit is subject
--------------------
to the satisfaction of all of the following conditions precedent on the relevant
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issuance date:
4.3.1 Letter of Credit Application . The Borrower shall have
----------------------------
executed and delivered to the Administrative Agent an application and agreement
for standby letter of credit substantially in the form of Exhibit I.
---------
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants to the Administrative Agent and
each Bank that:
5.1 Corporate Existence and Power . The Borrower:
-----------------------------
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and to execute, deliver, and perform its obligations under the Loan Documents
and the Environmental Indemnity;
(c) is duly qualified as a foreign corporation and is in good standing
under the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification or license;
and
(d) is in compliance with all Requirements of Law; except, in each
case referred to in clause (c) or clause (d) of this Section 5.1, to the extent
-----------
that the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
5.2 Corporate Authorization; No Contravention . The execution, delivery
-----------------------------------------
and performance by the Borrower of this Agreement, each other Loan Document to
which the Borrower is party and the Environmental Indemnity, have been duly
authorized by all necessary corporate action, and do not and will not:
(a) contravene the terms of any of the Borrower's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under (i) any document evidencing any Contractual
Obligation to which the Borrower is a party in a manner that could reasonably be
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expected to cause a Material Adverse Effect, or (ii) any order, injunction, writ
or decree of any Governmental Authority known to the Borrower to which the
Borrower or its property is subject in a manner that could reasonably be
expected to cause a Material Adverse Effect; or
(c) violate any Requirement of Law in a manner that could reasonably
be expected to cause a Material Adverse Effect.
5.3 Governmental Authorization . No approval, consent, exemption,
--------------------------
authorization, or other action by, or notice to, or filing with, any
Governmental Authority (except for recordings or filings in connection with the
Liens granted to the Administrative Agent under the Collateral Documents) is
necessary or required in connection with the Borrower's execution, delivery or
performance of this Agreement, any other Loan Document to which the Borrower is
a party or the Environmental Indemnity, or, except as otherwise provided in the
opinions of counsel delivered to the Administrative Agent pursuant to Section
-------
4.1.4 (the "Opinions of Counsel"), the enforcement of any of such agreements
----- -------------------
against the Borrower.
5.4 Binding Effect . This Agreement, each other Loan Document to which
--------------
the Borrower is a party and the Environmental Indemnity constitute the legal,
valid and binding obligations of the Borrower, enforceable against the Borrower
in accordance with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability, and subject to the other qualifications on enforceability set
forth in the Opinions of Counsel.
5.5 Litigation . Except as specifically disclosed in Schedule 5.5, there
---------- ------------
are no actions, suits, proceedings, claims or disputes pending, or to the best
knowledge of the Borrower, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against the Borrower or any of
its properties, which:
(a) purport to affect or pertain to this Agreement, any other Loan
Document or the Environmental Indemnity, or any of the transactions contemplated
hereby or thereby; or
(b) involve amounts in excess of Five Million Dollars ($5,000,000)
and, if determined adversely to the Borrower, would reasonably be expected to
have a Material Adverse Effect. No injunction, writ, temporary restraining
order or any order of any nature has been issued by any court or other
Governmental Authority purporting to enjoin or restrain the execution, delivery
or performance of this Agreement, any other Loan Document or the Environmental
Indemnity, or directing that the transactions provided for herein or therein not
be consummated as herein or therein provided.
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5.6 No Default . No Default or Event of Default exists or would result
----------
from the incurring of any Obligations by the Borrower or from the grant or
perfection of the Liens of the Administrative Agent and the Banks on the
Collateral. As of the Closing Date, the Borrower is not in default under or
with respect to any Contractual Obligation in any respect which, individually or
together with all such defaults, could reasonably be expected to have a Material
Adverse Effect.
5.7 ERISA Compliance .
----------------
(a) Except as specifically disclosed in Schedule 5.7, each Plan is in
------------
compliance with the applicable provisions of ERISA, the Code and other federal
or state law, except to the extent that any noncompliance could not reasonably
be expected to result in a Material Adverse Effect. Except as specifically
disclosed in Schedule 5.7, each Plan which is intended to qualify under Section
------------
401(a) of the Code has received a favorable determination letter from the IRS
and, to the best knowledge of the Borrower, nothing has occurred which would
cause the loss of such qualification.
(b) There are no pending, or to the best knowledge of Borrower
threatened, claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan which has resulted or could reasonably be
expected to result in a Material Adverse Effect. There has been no prohibited
transaction or other violation of the fiduciary responsibility rule with respect
to any Plan which could reasonably result in a Material Adverse Effect.
(c) Except as specifically disclosed in Schedule 5.7, no ERISA Event
------------
has occurred or is reasonably expected to occur with respect to any Plan which
could reasonably be expected to result in a Material Adverse Effect.
(d) Except as specifically disclosed in Schedule 5.7, no Pension Plan
------------
has any unfunded pension liability.
(e) Except as specifically disclosed in Schedule 5.7, the Borrower has
------------
not incurred, nor does it reasonably expect to incur, any liability under Title
IV of ERISA with respect to any Plan (other than premiums due and not delinquent
under Section 4007 of ERISA), which could reasonably be expected to result in a
Material Adverse Effect.
(f) Except as specifically disclosed in Schedule 5.7, the Borrower has
------------
not transferred any unfunded pension liability to any Person or otherwise
engaged in a transaction that could be subject to Section 4069 of ERISA.
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(g) Neither the Borrower nor any ERISA Affiliate maintains or
contributes to any Plan subject to Section 412 of the Code. Neither the
Borrower nor any ERISA Affiliate has ever contributed to any Multiemployer Plan.
5.8 Use of Proceeds; Margin Regulations . The proceeds of the Loans are
-----------------------------------
to be used solely for the purposes set forth in and permitted by Section 6.11
------------
and Section 7.7. Neither the Borrower nor any Subsidiary is generally engaged
-----------
in the business of purchasing or selling Margin Stock or extending credit for
the purpose of purchasing or carrying Margin Stock.
5.9 Title to Properties . The Borrower has good record and marketable
-------------------
title in fee simple to, or valid leasehold interests in, all of the Properties,
except for (i) Permitted Encumbrances and (ii) such defects in title as could
not, individually or in the aggregate, have a Material Adverse Effect. As of
the Closing Date, the Properties are subject to no Liens other than Permitted
Liens or liens being released in connection with the initial funding of the
Loans on the Closing Date.
5.10 Taxes . The Borrower and its Subsidiaries have filed all Federal
-----
and other material tax returns and reports required to be filed, and have paid
all Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. To the best of the Borrower's knowledge, there is no
proposed tax assessment against the Borrower or any of the Properties that
would, if made, have a Material Adverse Effect.
5.11 Financial Condition .
-------------------
(a) The audited consolidated financial statements of the Borrower and
its Subsidiaries dated December 31, 1997, and the related consolidated
statements of income or operations, shareholders equity and cash flows for the
fiscal year ended on that date (and the notes thereto):
(i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein, subject to ordinary, good faith year-end audit adjustments;
(ii) fairly present the financial condition of the Borrower and
its Subsidiaries as of the date thereof and results of operations for the
period covered thereby; and
(iii) except as specifically disclosed in Schedule 5.11, show
-------------
all material indebtedness and other liabilities of the Borrower and its
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consolidated Subsidiaries as of the date thereof, including any liabilities
for taxes, material commitments and Contingent Obligations which are
required by GAAP to be shown in such financial statements.
(b) Since December 31, 1997, there has been no Material Adverse
Effect.
5.12 Environmental Matters .
---------------------
(a) Except as specifically disclosed in Schedule 5.12 or the reports
-------------
listed on Schedule 5.12, to the best of the Borrower's knowledge the on-going
-------------
operations of the Borrower and each of its Subsidiaries comply in all respects
with all Environmental Laws, except such non-compliance which would not (if
enforced in accordance with applicable law) result in liability in excess of
$5,000,000 for an individual site or $15,000,000 in the aggregate.
(b) Except as specifically disclosed in Schedule 5.12 or the reports
-------------
listed on Schedule 5.12, to the best of the Borrower's knowledge the Borrower
-------------
and each of its Subsidiaries have obtained all licenses, permits, authorizations
and registrations required under any Environmental Law ("Environmental Permits")
---------------------
and necessary for their respective ordinary course operations, all such
Environmental Permits are in good standing, and the Borrower and each of its
Subsidiaries are in compliance with all material terms and conditions of such
Environmental Permits.
(c) Except as specifically disclosed in Schedule 5.12 or the reports
-------------
listed on Schedule 5.12, none of the Borrower, any of its Subsidiaries or any of
-------------
their respective present property or operations, is subject to any outstanding
written order from or agreement with any Governmental Authority, nor, to the
best of the Borrower's knowledge, subject to any judicial or docketed
administrative proceeding, respecting any Environmental Law, Environmental Claim
or Hazardous Material.
(d) Except as specifically disclosed in Schedule 5.12 or the reports
-------------
listed on Schedule 5.12, to the best of the Borrower's knowledge there are no
-------------
Hazardous Materials or other conditions or circumstances existing with respect
to any property of the Borrower or any Subsidiary, or arising from operations
prior to the Closing Date, of the Borrower or any of its Subsidiaries that would
reasonably be expected to give rise to Environmental Claims with a liability of
the Borrower and its Subsidiaries in excess of $5,000,000 for an individual
condition or circumstance or $15,000,000 in the aggregate for all such
conditions and circumstances. In addition, except as specifically disclosed in
Schedule 5.12 or the reports listed on Schedule 5.12, (i) neither the Borrower
------------- -------------
nor any Subsidiary has any underground storage tanks (x) that are not properly
registered or permitted under applicable Environmental Laws, or (y) that are
leaking or disposing of Hazardous Materials off-site, and (ii) the Borrower and
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its Subsidiaries have notified all of their employees of the existence, if any,
of any health hazard arising from the conditions of their employment, to the
extent required by applicable Environmental Laws, and have met all notification
requirements under Title III of CERCLA and all other Environmental Laws.
5.13 Collateral Documents .
--------------------
(a) The provisions of each of the Collateral Documents are effective
to create in favor of the Administrative Agent, for the benefit of the Banks, a
legal, valid and enforceable (subject to any qualifications on enforceability
set forth in the Opinions of Counsel) first priority security interest in all
right, title and interest of the Borrower or CRG, as applicable, in the
Collateral described therein.
(b) Each Deed of Trust, when delivered, will be effective to grant to
the Administrative Agent, for the benefit of the Banks, a legal, valid and
enforceable (subject to any qualifications on enforceability set forth in the
Opinions of Counsel) lien on all the right, title and interest of the Borrower
or CRG, as applicable, in the Property described therein. When each such Deed
of Trust is duly recorded and the mortgage recording fees and taxes in respect
thereof are paid and compliance is otherwise had with the formal requirements of
state law applicable to the recording of real estate deeds of trust or mortgages
generally, each such Property, subject to the encumbrances and exceptions to
title set forth in the title policies delivered to the Administrative Agent
pursuant to Section 4.1.6(e), encumbrances approved by the Administrative Agent
----------------
pursuant to this Agreement, and encumbrances for which the Administrative
Agent's consent or approval is not required under this Agreement (collectively,
the "Permitted Encumbrances"), will be subject to a legal, valid, enforceable
----------------------
(subject to any qualifications on enforceability set forth in the Opinions of
Counsel) and perfected first priority lien. When financing statements have been
duly filed, such Deed of Trust shall also create a legal, valid, enforceable
(subject to any qualifications on enforceability set forth in the Opinions of
Counsel) and perfected first lien on, and security interest in, all right, title
and interest of the Borrower or CRG, as applicable, in all personal property and
fixtures covered by such Deed of Trust, subject to no other Liens except
Permitted Liens.
(c) All representations and warranties of the Borrower or CRG, as
applicable, contained in the Collateral Documents are true and correct.
5.14 Regulated Entities . Neither the Borrower, nor any Person
------------------
controlling the Borrower, nor any Subsidiary, is an "Investment Company" within
the meaning of the Investment Company Act of 1940. The Borrower is not subject
to regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, any state public utilities code, or any
other Federal or state statute or regulation limiting its ability to incur
Indebtedness.
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5.15 No Burdensome Restrictions . Neither the Borrower nor any
--------------------------
Subsidiary is a party to or bound by any Contractual Obligation, or subject to
any restriction in any Organization Document, or any Requirement of Law, which
could reasonably be expected to have a Material Adverse Effect.
5.16 Subsidiaries . As of the Closing Date, the Borrower has no
------------
Subsidiaries other than those specifically disclosed in part (a) of Schedule
--------
5.16 hereto, and has no equity investments in any other corporation or entity
----
other than those specifically disclosed in part (b) of Schedule 5.16.
-------------
5.17 Insurance . Except as specifically disclosed in Schedule 5.17, the
--------- -------------
properties of the Borrower and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Borrower, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies of comparable financial capability engaged in similar
businesses and owning similar properties in localities where the Borrower or
such Subsidiary operates.
5.18 Solvency . The Borrower is Solvent.
--------
5.19 Full Disclosure . None of the representations or warranties made by
---------------
the Borrower in the Loan Documents or the Environmental Indemnity as of the date
such representations and warranties are made or deemed made, and none of the
statements contained in any exhibit, report, statement or certificate furnished
by a Responsible Officer of the Borrower to the Administrative Agent or the
Banks in connection with the Loan Documents (including the disclosure materials
delivered by a Responsible Officer of the Borrower to the Banks prior to the
Closing Date), contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they are made, not
misleading in any material respect as of the time when made or delivered.
5.20 Name and Principal Place of Business . The Borrower presently uses
------------------------------------
no trade name other than its actual name. The Borrower's principal place of
business is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
5.21 Year 2000 Readiness and Disclosure . The Borrower is developing and
----------------------------------
will budget for a comprehensive program to address the "Year 2000 problem" (that
is, the inability of computers, as well as embedded microchips in non-computing
devices, to properly perform date-sensitive functions with respect to certain
dates prior to and after December 31, 1999). The Borrower is developing that
program, and reasonably anticipates that it will substantially avoid the Year
2000 problem as to all computers, as well as embedded microchips in non-
computing devices, that are material to the Borrower's business, properties or
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operations. To the extent necessary, the Borrower will develop feasible
contingency plans adequate to ensure uninterrupted and unimpaired business
operation in the event of failure of its own or a third party's systems or
equipment due to the Year 2000 problem, including those of vendors, customers or
suppliers, as well as a general failure of or interruption in its communications
and delivery infrastructure.
ARTICLE 6.
AFFIRMATIVE COVENANTS
---------------------
So long as any Bank shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, unless the
Administrative Agent, on behalf of the Majority Banks, waives compliance or
otherwise consents in writing:
6.1 Financial Statements . The Borrower shall deliver to the
--------------------
Administrative Agent, in form and detail reasonably satisfactory to the
Administrative Agent and the Majority Banks, with sufficient copies for each
Bank:
6.1.1 Annual Borrower Financial Statements. As soon as available,
------------------------------------
but not later than one hundred twenty (120) days after the end of each fiscal
year (commencing with the fiscal year ended December 31, 1998), a copy of the
audited consolidated balance sheet of the Borrower and its subsidiaries as at
the end of such fiscal year and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year,
and accompanied by the opinion of a nationally-recognized independent public
accounting firm ("Independent Auditor"), which report shall state that such
-------------------
consolidated financial statements present fairly the financial condition and the
results of the operations of the Borrower and its subsidiaries for the periods
indicated in conformity with GAAP applied on a basis
consistent with prior years. Such opinion shall not be qualified or limited
because of a restricted or limited examination by the Independent Auditor of any
material portion of the Borrower's or any subsidiary's records;
6.1.2 Annual Borrower Cash Flow Projections. Not later than one
-------------------------------------
hundred twenty (120) days after the end of each fiscal year, a consolidated cash
flow
projection for Borrower and its subsidiaries, and the operations of Borrower and
its subsidiaries, for the then-current fiscal year and the following fiscal
year, certified by a Senior Officer.
6.1.3 Quarterly Borrower Financial Statements. As soon as
---------------------------------------
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available, but not later than fifty (50) days after the end of each fiscal
quarter of each fiscal year, a copy of the unaudited consolidated balance sheet
of the Borrower and its subsidiaries as of the end of such quarter and the
related consolidated statements of income, shareholders' equity and cash flows
for the period commencing on the first day and ending on the last day of such
quarter, and certified by a Responsible Officer as fairly presenting, in
accordance with GAAP (subject to ordinary, good faith year-end audit
adjustments), the financial position and the results of operations of the
Borrower and its subsidiaries;
6.1.4 Quarterly Property Operating Statements and Rent Rolls.
------------------------------------------------------
Within fifty (50) days after the end of each of its first three fiscal quarters,
for each Property (a) a current rent roll for such Property and (b) a separate
statement of profit and loss for such Property as of the end of such quarter,
together with all supporting schedules. Such quarterly Property operating
statements, and all supporting schedules, shall set forth the profit and loss
for the applicable Property on a cash basis, except that rental revenue shall be
shown on an "as-billed" basis and real property taxes and casualty and public
liability insurance costs will be shown on an accrual basis.
6.2 Certificates; Other Information . The Borrower shall furnish to the
-------------------------------
Administrative Agent, with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial statements
referred to in Sections 6.1.1 and 6.1.3, a Compliance Certificate executed by a
-------------- -----
Responsible Officer;
(b) promptly, copies of all financial statements and regular,
periodical or special reports (including Forms 10K, 10Q and 8K) that the
Borrower may make to, or file with, the SEC;
(c) promptly, copies of all financial statements and reports that the
Borrower sends to its shareholders generally;
(d) promptly, such additional information regarding the Properties, or
the business, financial or corporate affairs of the Borrower or any Subsidiary,
as the Administrative Agent, at the request of any Bank, may from time to time
reasonably request, provided that disclosure of such information is not
--------
restricted or prohibited by applicable Requirements of Law or Contractual
Obligations; and
(e) promptly following the date such payment would be delinquent,
evidence of the Borrower's payment of property taxes owing with respect to any
Property.
6.3 Notices . The Borrower shall notify the Administrative Agent within
-------
ten (10) Business Days of a Senior Officer of the Borrower (or, if provided
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below, a Responsible Officer of the Borrower) learning of any of the following:
(a) the occurrence of any Default or Event of Default;
(b) (i) any breach or non-performance of, or any default under, any
Contractual Obligation of the Borrower that is likely to result in a Material
Adverse Effect; and (ii) any dispute, litigation, investigation, proceeding or
suspension that may exist at any time between the Borrower and any Governmental
Authority that is likely to result in a Material Adverse Effect;
(c) the commencement of, or any material development in, any
litigation or proceeding (i) affecting the Borrower (A) in which the amount of
damages claimed is $5,000,000 (or its equivalent in another currency or
currencies) or more, (B) in which injunctive or similar relief is sought and
which, if adversely determined, would reasonably be expected to have a Material
Adverse Effect, or (C) in which the relief sought is an injunction or other stay
of the performance of this Agreement, any other Loan Document or the
Environmental Indemnity; or (ii) relating to any Property between the Borrower
and (D) any Governmental Authority, (E) any Person having rights under or in
connection with any covenants, conditions, restrictions, easements or rights-of-
way affecting such Property, or (F) any tenant under a Material Lease of such
Property, in each case under this clause (ii) the adverse determination of which
-----------
might materially and adversely affect such Property;
(d) upon, but in no event later than ten (10) days after, a Senior
Officer's or a Responsible Officer's becoming aware of (i) any and all
enforcement, cleanup, removal or other governmental or regulatory actions,
instituted or threatened in writing against (A) the Borrower that involve
potential liability in excess of $5,000,000 for any single action or $15,000,000
in the aggregate for all such actions, or (B) any of the Properties, pursuant to
any applicable Environmental Laws, (ii) all other Environmental Claims against
(C) the Borrower that involve potential liability in excess of $5,000,000 for
any single Environmental Claim or $15,000,000 in the aggregate for all such
Environmental Claims or (D) any Property, and (iii) any environmental or similar
condition on any real property adjoining or in the vicinity of any Property that
causes such Property or any part thereof to be subject to any restrictions on
the ownership, occupancy, transferability or use of such Property under any
Environmental Laws;
(e) of any of the following events affecting the Borrower, together
with a copy of any notice with respect to such event that may be required to be
filed with a Governmental Authority and any notice delivered by a Governmental
Authority to the Borrower with respect to such event:
(i) an ERISA Event;
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(ii) if any of the representations and warranties in Section 5.7
-----------
ceases to be true and correct;
(iii) the adoption of any new Pension Plan or other Plan subject
to Section 412 of the Code;
(iv) the adoption of any amendment to a Pension Plan or other
Plan subject to Section 412 of the Code, if such amendment results in
a material increase in contributions or unfunded pension liability; or
(v) the commencement of contributions to any Pension Plan or
other Plan subject to Section 412 of the Code; and
(f) any trade name hereafter used by the Borrower and any change in
the Borrower's principal place of business.
Each notice under this Section shall be accompanied by a written
statement by a Senior Officer or a Responsible Officer setting forth details of
the occurrence referred to therein, and stating what action, if any, the
Borrower or any affected Subsidiary proposes to take with respect thereto and at
what time. Each notice under subsection 6.3 (a) shall describe with
------------------
particularity any and all clauses or provisions of this Agreement or other Loan
Document that have been breached or violated.
6.4 Preservation of Corporate Existence, Etc . The Borrower shall:
----------------------------------------
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction of
incorporation;
(b) preserve and maintain in full force and effect all governmental
rights, privileges, qualifications, permits, licenses and franchises necessary
for the normal conduct of its business, except to the extent that the failure to
do so is not likely to cause a Material Adverse Effect; and
(c) use reasonable efforts, in the ordinary course of business, to
preserve its business organization and goodwill.
6.5 Maintenance of Property . The Borrower shall maintain and preserve
-----------------------
all its property which is used or useful in its business, including the
Properties, in good working order and condition, ordinary wear and tear
excepted, and make all necessary repairs thereto and renewals and replacements
thereof except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect. The Borrower shall use the standard of care
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typical in the industry in the operation and maintenance of its facilities.
6.6 Insurance . In addition to insurance requirements set forth in the
---------
Collateral Documents, while any Obligation remains outstanding, the Borrower
shall maintain or cause to be maintained, with insurers reasonably approved by
the Administrative Agent and the Majority Banks, the following policies of
insurance with respect to each Property (except that the Borrower shall not be
required to maintain or cause to be maintained the insurance required under (i)
clauses (a) and (b), below, with respect to any Ground Leased Property, or (ii)
clauses (a), (b), (d) and (e), below, with respect to any Property consisting
solely of Entitled Land, whether or not subject to a ground lease), in form and
substance reasonably satisfactory to the Administrative Agent and the Majority
Banks:
(a) blanket property insurance covering 100% of the replacement cost
of the improvements located on such Property in the event of fire, lightning,
windstorm, vandalism, malicious mischief and all other risks normally covered by
"all risk" coverage policies in the area where the Property is located
(including loss by flood if the Property is in an area designated as subject to
the danger of flood);
(b) blanket (i.e., policies covering the Properties and other
properties of the Borrower and its subsidiaries) earthquake insurance, to the
extent maintained by the Borrower to cover improvements located on Properties
outside California, and blanket earthquake insurance, with limits of at least
$35,000,000 and with deductibles not in excess of 10% of the insured value of
the improvements, covering Properties located within California (to the extent
that such coverage and/or deductible is available at commercially reasonable
rates);
(c) blanket public liability and property damage insurance in amounts
reasonably required by the Administrative Agent from time to time, and in no
event less than $5,000,000 for "single occurrence";
(d) such rental loss insurance as the Administrative Agent reasonably
requires (including insurance against income loss during a period of restoration
of at least twelve (12) months), which insurance coverage may be included in the
policies described in subparagraphs (a) and/or (b), above;
(e) workers' compensation insurance to the extent required by law in
connection with any Property; and
(f) all other insurance reasonably required by the Administrative
Agent from time to time and customarily carried by owners of similar properties
of comparable financial capability in the same general location as the
applicable Property.
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All such insurance shall provide that such policies shall not be canceled for
non-payment of premium, without at least ten (10) days' prior written notice to
the Administrative Agent, or otherwise canceled, surrendered without replacement
or materially amended (which term shall include any reduction in the scope or
limits of coverage) without at least thirty (30) days' prior written notice to
the Administrative Agent. The policies required under subparagraphs (a), (b)
and (d) shall include a "lender's loss payable endorsement" (Form 438BFU or its
equivalent) in form and substance satisfactory to the Administrative Agent,
assuring the Administrative Agent that all proceeds shall be paid to
Administrative Agent, for the benefit of the Banks, as encumbrancer. BofA, as
Administrative Agent, in all cases for the benefit of the Banks, shall be named
as an additional insured in the policies required under subparagraph (c). No
such insurance (other than earthquake insurance) shall include deductible
amounts in excess of $100,000 to which the Administrative Agent has not
previously consented in writing. Certificates of insurance for the above
policies (and/or, with respect to property insurance policies, certified copies
of the original policies, if required by the Administrative Agent) shall be
delivered to the Administrative Agent from time to time within ten (10) days
following written demand. All policies insuring against damage to the
improvements located on any Property shall contain an agreed value clause or
equivalent coverage sufficient to eliminate any risk of co-insurance. Prior to
the expiration of any such policy, the Borrower shall deliver to the
Administrative Agent evidence of renewal or replacement of such policy
reasonably satisfactory to the Administrative Agent.
6.7 Payment of Obligations . The Borrower shall pay and discharge prior
----------------------
to delinquency all of the following obligations and liabilities with respect to
any Property:
(a) all tax liabilities, assessments and governmental charges or
levies upon any Property; and
(b) all other lawful claims which, if unpaid, would by law become a
Lien upon any such Property;
and all other obligations and liabilities in excess of $10,000.00 with respect
to any Property. Notwithstanding the foregoing clauses (a) and (b), the
Borrower shall not be required to pay any such claim, tax, assessment or
governmental charge so long as (i) its validity is being contested in good faith
and by appropriate proceedings and (ii) the Borrower has demonstrated to the
Administrative Agent's reasonable satisfaction that leaving such claim, tax,
assessment or governmental charge unpaid or unperformed pending the outcome of
such proceedings could not, in the Administrative Agent's reasonable judgment,
result in the sale of any Property to satisfy such claim, tax, assessment or
governmental charge or otherwise impair the Banks' interests under the Loan
Documents; provided that, if at any time the Administrative Agent reasonably
--------
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determines that the requirements of clause (ii) are not satisfied, the
Administrative Agent may require the Borrower to deliver to the Administrative
Agent a bond or other Surety Instrument reasonably satisfactory to the
Administrative Agent in an amount not less than 150% of the applicable claim,
tax, assessment or governmental charge as a condition of the Borrower's
continued right to contest such claim, tax, assessment or governmental charge.
6.8 Compliance with Laws . The Borrower shall comply with all
--------------------
Requirements of Law of any Governmental Authority having jurisdiction over it or
its business (including the Federal Fair Labor Standards Act), except such (i)
as may be contested in good faith, (ii) as to which a bona fide dispute may
exist, or (iii) as to which failure to comply could not reasonably be expected
to cause a Material Adverse Effect.
6.9 Inspection of Property and Books and Records . The Borrower shall
--------------------------------------------
maintain proper books of record and account, in which full, true and correct
entries in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of the
Borrower. Subject to the requirements of Section 10.8, the Borrower shall
------------
permit representatives and independent contractors of the Administrative Agent
or any Bank to visit and inspect any of the Properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with its directors,
officers, agents and independent public accountants, all at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Borrower; provided, however, that when an
--------
Event of Default exists, the Administrative Agent or any Bank may do any of the
foregoing at the expense of the Borrower at any time during normal business
hours and without advance notice. The Administrative Agent and the Banks, in
conducting any inspections of any Property, shall comply with reasonable
restrictions on access imposed by tenants under tenant leases.
6.10 Environmental Laws .
------------------
(a) The Borrower shall conduct its operations and keep and maintain
its property in compliance with all Environmental Laws the failure to comply
with which could reasonably be expected to cause a Material Adverse Effect.
(b) Upon the written request of the Administrative Agent or any Bank,
the Borrower shall submit to the Administrative Agent, at the Borrower's sole
cost and expense, at reasonable intervals, a report prepared by the Borrower
providing an update of the status of any environmental, health or safety
compliance, hazard or liability issue identified in any notice or report
required pursuant to subsection 6.3(d), that could, individually or in the
-----------------
aggregate, reasonably be expected to cause a Material Adverse Effect.
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6.11 Use of Proceeds . The Borrower shall use the proceeds of the Loans
---------------
(i) to finance development and construction of pre-sold and/or pre-leased
industrial properties, (ii) to finance completed operating properties and
entitled land on an interim basis, and (iii) for other general corporate
purposes not in contravention of any Requirement of Law or of any Loan Document.
6.12 Further Assurances .
------------------
(a) The Borrower shall use all reasonable efforts to ensure that all
written information, exhibits and reports furnished by or through the Borrower
to the Administrative Agent or the Banks do not and will not contain any untrue
statement of a material fact and do not and will not omit to state any material
fact or any fact necessary to make the statements contained therein not
misleading in any material respect in light of the circumstances in which made,
and will promptly disclose to the Administrative Agent and the Banks and correct
any defect or error that may be discovered therein or in any Loan Document or in
the execution, acknowledgment or recordation thereof.
(b) Promptly upon request by the Administrative Agent or the Majority
Banks, the Borrower shall do, execute, acknowledge, deliver, record, re-record,
file, re-file, register and re-register, any and all such further acts, deeds,
conveyances, security agreements, mortgages, assignments, estoppel certificates,
financing statements and continuations thereof, termination statements, notices
of assignment, transfers, certificates, assurances and other instruments as the
Administrative Agent or such Banks, as the case may be, may reasonably require
from time to time in order (i) to carry out more effectively the purposes of
this Agreement or any other Loan Document, (ii) to subject to the Liens created
by any of the Collateral Documents any of the properties, rights or interests
intended to be covered by any of the Collateral Documents, (iii) to perfect and
maintain the validity, effectiveness and priority of any of the Collateral
Documents and the Liens intended to be created thereby, and (iv) to better
assure, convey, grant, assign, transfer, preserve, protect and confirm to the
Administrative Agent and the Banks the rights granted or now or hereafter
intended to be granted to the Banks under any Loan Document or under any other
document executed in connection therewith; provided, however, that nothing in
--------
this Section 6.12(b) shall require the Borrower to modify any of its rights or
---------------
increase any of its obligations under this Agreement or any of the other Loan
Documents.
6.13 Copies of Leases . The Borrower shall deliver to the Administrative
----------------
Agent, within fourteen (14) days after the Administrative Agent's request, a
true and complete copy of any lease or other agreement pursuant to which any
Person has a right to occupy or use any portion of any Property (and all
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amendments, modifications and supplements thereto).
6.14 Debt Coverage . The Borrower shall maintain Debt Coverage of not
-------------
less than 1.60:1.0 at all times, evaluated quarterly based on the most recent
financial statements delivered to the Administrative Agent pursuant to Section
-------
6.1.
---
6.15 Fixed Charge Coverage . The Borrower shall maintain Fixed Charge
---------------------
Coverage of not less than 1.60:1.0 at all times, evaluated quarterly based on
the most recent financial statements delivered to the Administrative Agent
pursuant to Section 6.1.
-----------
6.16 Leverage . The Borrower shall maintain Leverage not greater than
--------
0.75:1.0, evaluated quarterly based on the most recent financial statements
delivered to the Administrative Agent pursuant to Section 6.1.
-----------
6.17 Tangible Net Worth . The Borrower and its subsidiaries shall
------------------
maintain at all times Tangible Net Worth (evaluated quarterly based on the most
recent financial statements delivered to the Administrative Agent pursuant to
Section 6.1) of not less than $402,828,000, plus fifty percent (50%) of the
----------- ----
aggregate positive net income of the Borrower during the period from and after
July 1, 1998, plus fifty percent (50%) of the aggregate amount of equity that
----
the Borrower issues from time to time after the date of this Agreement.
6.18 Portfolio Net Cash Flow Coverage . The Borrower and its
--------------------------------
Subsidiaries shall maintain at all times (a) a Portfolio Net Cash Flow Coverage
Ratio of not less than 1.25:1.0, and (b) a Portfolio Net Cash Flow Coverage
Ratio (computed using an Operating Portfolio Net Cash Flow that does not include
the Net Proceeds of the Disposition of any Property) of not less than 1.0:1.0,
in each case evaluated on the Closing Date and semi-annually on each May 1, and
November 1, thereafter, based on the most recent Property operating statements
delivered to the Administrative Agent pursuant to Section 6.1.
-----------
ARTICLE 7.
NEGATIVE COVENANTS
------------------
So long as any Bank shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, unless the
Administrative Agent, on behalf of the Majority Banks, waives compliance or
otherwise consents in writing:
7.1 Limitation on Liens . The Borrower shall not, directly or
-------------------
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indirectly, make, create, incur, assume or suffer to exist any Lien upon or with
respect to any part of any Property, or any personal property encumbered from
time to time by a Deed of Trust, whether now owned or hereafter acquired, other
than the following ("Permitted Liens"):
(a) any Lien created under any Loan Document;
(b) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent, or remain payable without penalty, or to the extent
that non-payment thereof is permitted by Section 6.7, provided that no notice of
-----------
lien has been filed or recorded under the Code;
(c) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of business
which are not delinquent, or remain payable without penalty, or which are being
contested in good faith and by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the property subject thereto;
and
(d) easements, rights-of-way, covenants, conditions and restrictions
and other similar encumbrances incurred in the ordinary course of business
which, in the aggregate, do not materially reduce the value of the Property
subject thereto or interfere with the ordinary conduct of the Borrower's
business; and upon the Borrower's written request, the Administrative Agent
shall cause the Lien of the applicable Deed of Trust to be subordinated to any
such easement, right-of-way, covenant, condition and restriction and other
similar encumbrance that does not materially and adversely affect the value of
the Property subject thereto.
7.2 Lease of a Property . The Borrower shall not enter into any ground
-------------------
lease of any Property, or enter into any lease of any space in any improvements
located on a Property that contains any of the following provisions if such
provision is not, by its terms, expressly subordinate to the lien of all deeds
of trust encumbering such Property or approved by the Majority Banks as
hereinafter provided: (a) an option to purchase the Property on which the leased
premises are located, (b) a right of first refusal to purchase the Property on
which the leased premises are located, (c) a right on the part of the tenant to
self-insure, unless the tenant is a Xxxxxxx 000 Xxxxxxx, (x) an option to lease
space not located on the Property on which the leased premises are located, (e)
any agreement to extend or terminate the term of such Material Lease based on an
extension or termination of another lease of space not located on the Property
in which the leased premises are located, (f) an agreement by the lessor to
construct improvements for the tenant (other than (i) build-to-suit improvements
constructed on Entitled Land or (ii) ordinary tenant improvements to the leased
space located on the Property), or (g) any other provision that imposes a
financial obligation on the lessor's successor that is outside the scope of the
ordinary obligations of a passive lessor real property (but excluding
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obligations to construct (i) build-to-suit improvements on Entitled Land or (ii)
ordinary tenant improvements to the leased space located on a Property). The
Borrower may enter into any lease (including any "build-to-suit" lease) that is
not prohibited by this Section 7.2 without the prior consent of the
-----------
Administrative Agent or the Banks. The Borrower may at any time and from time
to time submit to the Administrative Agent a lease that includes one or more of
the foregoing provisions for approval of such provision(s) by the Majority
Banks. The Administrative Agent shall notify the Borrower within fifteen (15)
Business Days after the Administrative Agent's receipt of such lease as to
whether the Majority Banks approve or disapprove of such lease provision(s), and
upon the Administrative Agent's failure to respond within such fifteen (15)
Business Day period, the Borrower shall give a second notice to the
Administrative Agent and all of the Banks requesting approval or disapproval of
such lease provision(s), and the Administrative Agent's failure to respond
within ten (10) Business Days after receipt of such second notice shall be
deemed approval of such lease provision(s) by the Majority Banks. The Banks
agree not to unreasonably withhold their consent to any such lease provision(s)
(which the Banks may evaluate, for such purposes, in the context of both the
specific Property affected by such lease and all of the Properties considered as
a portfolio). Concurrently with its execution of a Material Lease of any
Property, the Borrower shall deliver to the Administrative Agent a copy of such
signed Material Lease, together with an estoppel certificate in the form of
Exhibit H signed by the tenant under such Material Lease. The Administrative
---------
Agent shall enter into a nondisturbance and attornment agreement, in form and
substance reasonably satisfactory to the Administrative Agent, with the tenant
under each Material Lease.
7.3 Consolidations and Mergers . The Borrower shall not merge,
--------------------------
consolidate with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired) to or in favor of
any Person, except that the Borrower may merge or consolidate with another
Person provided that (i) the Borrower is the continuing or surviving corporation
and (ii) such merger or consolidation does not cause a Material Adverse Effect.
7.4 Limitation on Subordinated Indebtedness . The Borrower shall not
---------------------------------------
create or issue any subordinated bonds, debentures or other similar instruments
except any subordinated Indebtedness existing on the Closing Date.
7.5 Limitation on Preferred Shares . The Borrower shall not issue or
------------------------------
suffer to exist any preferred shares, except preferred shares issued prior to
the Closing Date.
7.6 Transactions with Affiliates . The Borrower shall not enter into any
----------------------------
transaction with any Affiliate of the Borrower that could reasonably be expected
to cause a Material Adverse Effect.
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7.7 Use of Proceeds . The Borrower shall not use any portion of the Loan
---------------
proceeds, directly or indirectly, (a) to purchase or carry Margin Stock, (b) to
repay or otherwise refinance indebtedness of the Borrower or others incurred to
purchase or carry Margin Stock, (c) to extend credit for the purpose of
purchasing or carrying any Margin Stock, or (d) to acquire any security in any
transaction that is subject to Section 13 or 14 of the Exchange Act.
7.8 Change in Business . The Borrower shall not (a) engage in any
------------------
material line of business substantially different from those lines of business
carried on by the Borrower on the date hereof (provided, however, that this
--------
Section 7.8 shall not prohibit the Borrower from engaging in any line of
-----------
business so long as the Borrower's primary business focus remains real estate
related), or (b) change the primary use to which any Operating Property is
devoted.
7.9 Accounting Changes . The Borrower shall not make any significant
------------------
change in its accounting treatment or reporting practices, except as required or
permitted by GAAP.
7.10 Lease Amendments . The Borrower shall not amend or modify any lease
----------------
of any Property to include a provision that would require the consent of the
Majority Banks pursuant to Section 7.2.
-----------
7.11 Leasing or Management Office . The Borrower shall not use more than
----------------------------
5,000 square feet of any Property for management or leasing offices for such
Property and other properties owned by the Borrower, and shall not use any
portion of any Property for general corporate offices.
7.12 Management Agreements . The Borrower shall not enter into any
---------------------
agreement, written or oral, providing for the management, leasing or operation
of any portion of any Property unless such agreement is made fully subject and
subordinate to the Lien of the applicable Deed of Trust.
ARTICLE 8.
EVENTS OF DEFAULT
-----------------
8.1 Event of Default . Each of the following shall constitute an "Event
----------------
of Default":
(a) Non-Payment . The Borrower fails to pay (i) any amount of
-----------
principal of, or interest on, any Loan on the Maturity Date; or (ii) when and as
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required to be paid herein (other than on the Maturity Date), any amount of
principal of, or interest on, any Loan, and such failure is not cured within
three (3) Business Days after the date upon which written notice thereof is
given to the Borrower by the Administrative Agent; or (iii) any amount owing to
the Administrative Agent or the Banks under any Loan Document (other than
payments described in clauses (i) or (ii), above), within ten (10) days after
receipt of written notice; or
(b) Representation or Warranty . Any representation or warranty by
--------------------------
the Borrower made or deemed made herein, in any other Loan Document, or which is
contained in any certificate, document or financial or other statement by the
Borrower or any Responsible Officer, furnished at any time under this Agreement,
or in or under any other Loan Document, is incorrect in any material respect on
or as of the date made or deemed made; or
(c) Certain Specific Defaults . The Borrower fails to perform or
-------------------------
observe any term, covenant or agreement contained in any of Sections 6.3, 6.6,
------------------
6.9, 6.14, 6.15, 6.16, 6.17 or 6.18 (subject to the provisions of Section 2.6.3)
----------------------------------- -------------
or in Article 7 (other than Section 7.1), or the Borrower voluntarily creates
--------- -----------
any Lien on any Property in violation of Section 7.1; or
-----------
(d) Other Specific Defaults . The Borrower fails to perform or
-----------------------
observe any term, covenant or agreement contained in any of Sections 6.1 or 6.2,
-------------------
and such default shall continue unremedied for a period of five (5) days after
the date upon which written notice thereof is given to the Borrower by the
Administrative Agent;
(e) Other Defaults . The Borrower fails to perform or observe any
--------------
other term or covenant contained in this Agreement or any other Loan Document
(other than obligations described in subparagraphs (a), (b), (c) and (d),
above), and such default shall continue unremedied for a period of thirty (30)
days after the date upon which written notice thereof is given to the Borrower
by the Administrative Agent; provided that, if cure cannot reasonably be
--------
effected within such 30-day period, such failure shall not be an Event of
Default so long as the Borrower promptly commences cure (in any event, within
ten (10) days after receipt of such notice), thereafter diligently prosecutes
such cure to completion, and completes such cure within ninety (90) days after
receipt of such notice; or
(f) Insolvency; Voluntary Proceedings . The Borrower (i) ceases or
---------------------------------
fails to be Solvent, or generally fails to pay, or admits in writing its
inability to pay, its debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii) voluntarily
ceases to conduct its business in the ordinary course for more than ten (10)
Business Days; (iii) commences any Insolvency Proceeding with respect to itself;
or (iv) takes any action to effectuate or authorize any of the foregoing; or
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(g) Involuntary Proceedings . (i) Any involuntary Insolvency
-----------------------
Proceeding is commenced or filed against the Borrower, or any writ, judgment,
warrant of attachment, execution or similar process, is issued or levied against
a substantial part of the Borrower's properties, and any such proceeding or
petition shall not be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or fully bonded
within ninety (90) days after commencement, filing or levy; (ii) the Borrower
admits the material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under non-U.S. law) is
entered against the Borrower in any Insolvency Proceeding; or (iii) the Borrower
acquiesces in the appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor), or other similar Person
for itself or a substantial portion of its property or business; or
(h) Monetary Judgments . One or more non-interlocutory judgments,
------------------
non-interlocutory orders, decrees or arbitration awards is entered against the
Borrower involving in the aggregate a liability (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute
coverage) as to any single or related series of transactions, incidents or
conditions, of $25,000,000.00 or more, and the same shall remain unsatisfied,
unvacated and unstayed pending appeal for a period of sixty (60) days after the
entry thereof; or
(i) Non-Monetary Judgments . Any non-monetary judgment, order or
----------------------
decree is entered against the Borrower which does or would reasonably be
expected to have a Material Adverse Effect, and there shall be any period of
sixty (60) consecutive days during which a stay of enforcement of such judgment
or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(j) Adverse Change . There occurs a Material Adverse Effect.
--------------
8.2 Remedies . After the occurrence and during the continuance of any
--------
Event of Default, the Administrative Agent shall, at the request of, or may,
with the consent of, the Majority Banks,
(a) declare the commitment of each Bank to make Loans to be
terminated, whereupon such commitments shall be terminated; provided, however,
--------
that the Administrative Agent and the Banks shall continue to honor any
outstanding Letter of Credit;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
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(c) require that the Borrower deposit with the Administrative Agent,
for the benefit of the Banks, on demand and as cash security for the Borrower's
obligations under the Loan Documents, an amount equal to the aggregate undrawn
amount of all then-outstanding Letters of Credit (and the Borrower hereby grants
to the Administrative Agent, as administrative agent for the Banks, a security
interest in any such amount deposited with the Administrative Agent, all
earnings thereon and all proceeds thereof, and as to such amounts the
Administrative Agent shall have the rights and remedies of a secured party under
the California UCC); provided, however, that upon the occurrence of any event
--------
specified in subsection (f) or (g) of Section 8.1 (in the case of clause (i) of
-----------
subsection (g) upon the expiration of the 90-day period mentioned therein) such
amounts shall automatically become due and payable without further act of the
Administrative Agent or any Bank; and
(d) exercise on behalf of itself and the Banks all rights and remedies
available to it and the Banks under the Loan Documents or applicable law;
provided, however, that upon the occurrence of any event specified in subsection
-------- -------
(f) or (g) of Section 8.1 (in the case of clause (i) of subsection (g) upon the
-----------
expiration of the 90-day period mentioned therein), the obligation of each Bank
to make Loans and the obligation of BofA to issue Letters of Credit shall
automatically terminate and the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become due
and payable without further act of the Administrative Agent or any Bank.
8.3 Rights Not Exclusive . The rights provided for in this Agreement and
--------------------
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE 9.
THE ADMINISTRATIVE AGENT
------------------------
9.1 Appointment and Authorization . Each Bank hereby irrevocably
-----------------------------
appoints, designates and authorizes the Administrative Agent to take such action
on its behalf under the provisions of this Agreement, each other Loan Document
and the Environmental Indemnity, and to exercise such powers and perform such
duties as are expressly delegated to it by the terms of this Agreement, any
other Loan Document or the Environmental Indemnity, together with such powers as
are reasonably incidental thereto and as further provided in the Co-Lender
Agreement described below.
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9.2 The Administrative Agent's Powers . Subject to the limitations set
---------------------------------
forth in the Loan Documents, the Environmental Indemnity and the Co-Lender
Agreement, the Administrative Agent's powers include, but are not limited to,
the power: (i) to administer, manage and service the Loans; (ii) to enforce the
Loan Documents and/or the Environmental Indemnity; (iii) to make all decisions
under the Loan Documents or the Environmental Indemnity in connection with the
day-to-day administration of the Loans, any inspections required by the Loan
Documents or the Environmental Indemnity, and other routine administration and
servicing matters; (iv) to collect and receive from the Borrower or any third
persons all payments of amounts due under the terms of the Loan Documents or the
Environmental Indemnity and to distribute the amounts thereof to the Banks; (v)
to collect and distribute or disburse all other amounts due under the Loan
Documents or the Environmental Indemnity, (vi) to grant or withhold consents,
approvals or waivers, and to make any other determinations in connection with
the Loan Documents or the Environmental Indemnity, and (vii) to exercise all
such powers as are incidental to any of the foregoing matters. The
Administrative Agent shall furnish to Banks copies of material documents,
including confidential ones, received from the Borrower regarding the Loans, the
Loan Documents, the Environmental Indemnity, the Collateral, any proposed new
Collateral and the transactions contemplated hereby and thereby. The
Administrative Agent shall have no responsibility with respect to the
authenticity, validity, accuracy or completeness of the information provided.
9.3 Limitation on the Administrative Agent's Duties . Notwithstanding
-----------------------------------------------
any contrary provision of any Loan Document or the Environmental Indemnity, the
Administrative Agent shall not have any duties or responsibilities except those
expressly set forth in the Loan Documents, the Environmental Indemnity or the
Co-Lender Agreement, nor shall the Administrative Agent have any fiduciary
relationship with any Bank, and no implied covenants, responsibilities, duties,
obligations or liabilities shall be read into this Agreement, any other Loan
Document, the Environmental Indemnity or the Co-Lender Agreement against the
Administrative Agent.
9.4 Acknowledgment of the Co-Lender Agreement . The Borrower
-----------------------------------------
acknowledges that the Banks have executed a Co-Lender Agreement to supplement
the Loan Documents with respect to the relationship of the Banks and the
Administrative Agent among themselves in connection with the Loans. The Co-
Lender Agreement is not a Loan Document.
9.5 Documentation Agent and Co-Agents . None of the Banks identified on
---------------------------------
the face page or the signature pages of this Agreement as a "Documentation
Agent" or a "Co-Agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement or the other Loan Documents other
than those applicable to all Banks as such.
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9.6 Successor Administrative Agent, Documentation Agent and Co-Agents .
-----------------------------------------------------------------
The Administrative Agent, the Documentation Agent or any Co-Agent may, and at
the request of the Majority Banks shall, resign as Administrative Agent,
Documentation Agent or Co-Agent, as the case may be, upon thirty (30) days'
notice to the Banks. If the Administrative Agent resigns under this Agreement,
the Majority Banks shall appoint from among the Banks a successor administrative
agent. If no successor administrative agent is appointed prior to the effective
date of the resignation of the Administrative Agent, the Administrative Agent
may appoint, after consulting with the Banks, a successor administrative agent
from among the Banks. Any successor administrative agent shall be entitled to
any fee payable by the Borrower to BofA, in its capacity as Administrative
Agent, from and after the date on which such successor administrative agent is
appointed. If the Documentation Agent or a Co-Agent resigns under this
Agreement, the Administrative Agent shall elect either (a) to assume the rights
and obligations, if any, of such Documentation Agent or Co-Agent, as applicable,
and thereupon all references to such Documentation Agent or Co-Agent, as
applicable, shall be deemed references to the Administrative Agent, or (b) to
appoint a successor Documentation Agent or Co-Agent, as applicable, from among
the Banks. Upon its acceptance of the appointment as successor administrative
agent, documentation agent or co-agent hereunder, as the case may be, such
successor shall succeed to all of the rights, powers and duties of the retiring
Administrative Agent, Documentation Agent or Co-Agent, as the case may be, the
term "Administrative Agent," "Documentation Agent" or "Co-Agent", as the case
may be, shall mean such successor, and the appointment, powers and duties of
such retiring Administrative Agent, Documentation Agent or Co-Agent, as the case
may be, shall terminate. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of the Loan Documents or the
Environmental Indemnity regarding payment of costs and expenses and
indemnification of the Administrative Agent shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Administrative Agent
under this Agreement. If no successor administrative agent has accepted
appointment as Administrative Agent by the date which is thirty (30) days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective, and the Banks shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Majority Banks appoint a
successor administrative agent in the manner set forth above. Upon replacement
of the Administrative Agent as provided in this Agreement, the former
Administrative Agent shall promptly deliver to the new Administrative Agent an
assignment of all beneficial interest in any Deed of Trust and any other
Collateral Documents (if before acquisition of title to the Collateral
encumbered thereby), or a quitclaim deed to and assignment of any such property
(if after acquisition of title to the Collateral encumbered thereby) and copies
of any books, records and documents related to the Loans and the Collateral to
which the Banks are entitled and which is then in the former Administrative
Agent's possession.
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ARTICLE 10.
MISCELLANEOUS
-------------
10.1 Amendments and Waivers . No amendment or waiver of any provision of
----------------------
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Borrower therefrom, shall be effective unless the same shall be
in writing and signed by the Majority Banks (or by the Administrative Agent at
the written request of the Majority Banks) and the Borrower and acknowledged by
the Administrative Agent, and then any such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that no such waiver, amendment or consent shall, unless in
--------
writing and signed by all the Banks and the Borrower and acknowledged by the
Administrative Agent, do any of the following:
(a) increase, decrease or extend the Commitment of any Bank (or
reinstate any Commitment terminated pursuant to Section 8.2), or subject any
-----------
Bank to any additional obligation; or
(b) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other amounts due
to the Banks (or any of them) hereunder or under any other Loan Document; or
(c) reduce the principal of, or the rate of interest specified herein
on any Loan, or any fees or other amounts payable hereunder or under any other
Loan Document; or
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Banks or any of
them to take any action hereunder; or
(e) amend this Section 10.1, Section 8.1 or any other provision of any
------------ -----------
Loan Document relating to an Event of Default, Section 2.13, or any provision of
------------
any Loan Document providing for consent or other action by all Banks; or
(f) release any material portion of the Collateral except as otherwise
may be provided in this Agreement or in the Collateral Documents or except where
the consent of the Majority Banks only is specifically provided for;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
-------- -------
writing and signed by the Administrative Agent in addition to the Majority Banks
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or all the Banks, as the case may be, affect the rights or duties of the
Administrative Agent under this Agreement, any other Loan Document or the
Environmental Indemnity, and (ii) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed by the parties thereto.
10.2 Notices .
-------
10.2.1 All notices, requests and other communications shall be in
writing (including, unless the context expressly otherwise provides, by
facsimile transmission, provided that any matter transmitted by the Borrower by
facsimile (i) shall be immediately confirmed by a telephone call to the
recipient at the number specified on Schedule 10.2, and (ii) shall be followed
-------------
promptly by delivery of a hard copy original thereof) and mailed, faxed or
delivered, to the address or facsimile number specified for notices on Schedule
--------
10.2; or, as directed to the Borrower or the Administrative Agent, to such other
----
address as shall be designated by such party in a written notice to the other
parties, and as directed to any other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent.
10.2.2 All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to Article 2 or Article 9 shall not be effective until actually
--------- ---------
received by the Administrative Agent.
10.2.3 Any agreement of the Administrative Agent and the Banks
herein to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. The Administrative Agent and
the Banks shall be entitled to rely on the authority of any Person purporting to
be a Person authorized by the Borrower to give such notice, and the
Administrative Agent and the Banks shall not have any liability to the Borrower
or other Person on account of any action taken or not taken by the
Administrative Agent or the Banks in reliance upon such telephonic or facsimile
notice. The Borrower's obligation to repay the Loans shall not be affected in
any way or to any extent by any failure by the Administrative Agent or the Banks
to receive written confirmation of any telephonic or facsimile notice or the
receipt by the Administrative Agent or the Banks of a confirmation which is at
variance with the terms understood by the Administrative Agent or the Banks to
be contained in the telephonic or facsimile notice.
10.3 No Waiver; Cumulative Remedies . No failure or delay by the
------------------------------
Administrative Agent or any Bank in exercising any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
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partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
10.4 Costs and Expenses . The Borrower shall:
------------------
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as the
Administrative Agent) within ten (10) days after demand (subject to Section
-------
4.1.5) for all reasonable costs and expenses incurred by BofA (including in its
-----
capacity as the Administrative Agent) in connection with the development,
preparation, delivery and execution of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated), this Agreement, any
Loan Document and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby and
thereby, including Attorney Costs incurred by BofA (including in its capacity as
the Administrative Agent) with respect thereto; and
(b) pay or reimburse the Administrative Agent, and each Bank within
ten (10) days after demand (subject to Section 4.1.5) for all costs and expenses
-------------
(including Attorney Costs) incurred by them in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or any other Loan Document during the existence of an Event of Default
or after acceleration of the Loans (including in connection with any "workout"
or restructuring regarding the Loans, and including in any Insolvency Proceeding
or appellate proceeding); and
(c) pay or reimburse BofA (including in its capacity as the
Administrative Agent) or any successor administrative agent (including in its
capacity as the Administrative Agent) within five (5) Business Days after demand
(subject to Section 4.1.5) for all appraisal (including the reasonable allocated
-------------
cost of internal appraisal services), audit, environmental inspection and review
(including the allocated cost of such internal services), search and filing
costs, fees and expenses, incurred or sustained by BofA (including in its
capacity as the Administrative Agent) in connection with the matters referred to
under subsections (a) and (b) of this Section.
10.5 Indemnity .
---------
10.5.1 Whether or not the transactions contemplated hereby are
consummated, the Borrower shall indemnify, defend and hold the Agent-Related
Persons, and each Bank and each of its respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person")
------------------
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses or disbursements
(including Attorney Costs) of any kind or nature whatsoever that may at any time
(including at any time following repayment of the Loans or following the
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termination, resignation or replacement of the Administrative Agent or the
replacement of any Bank) be imposed on, incurred by or asserted against any such
Indemnified Person and that in any way relates to or arises out of (a) this
Agreement or any document contemplated by or referred to herein, (b) the
transactions contemplated hereby, or (c) any action taken or omitted by any such
Indemnified Person under or in connection with any of the foregoing, including
with respect to any investigation, litigation or proceeding (including any
Insolvency Proceeding or appellate proceeding) related to or arising out of this
Agreement or the Loans or the use of the proceeds thereof, whether or not any
Indemnified Person is a party thereto (all the foregoing, collectively, the
"Indemnified Liabilities"); provided, that the Borrower shall have no obligation
------------------------ --------
hereunder to any Indemnified Person with respect to Indemnified Liabilities
resulting solely from (i) the gross negligence or willful misconduct of such
Indemnified Person, (ii) any breach or this Agreement or any other Loan Document
by such Indemnified Person, or (iii) any event or condition relating to a
Property that occurs after such Indemnified Person takes title to such Property.
The agreements in this Section shall survive payment of all other Obligations,
and the termination of all obligations of the Banks to the Borrower under the
Loan Documents.
10.5.2 The Borrower shall defend each such Indemnified Person using
legal counsel reasonably satisfactory to such Indemnified Person, at the sole
cost and expense of the Borrower. All amounts owing under this Section 10.5
------------
shall be paid within thirty (30) days after demand.
10.5.3 Each Indemnified Person shall use reasonable efforts to
notify the Borrower promptly of any Indemnified Liabilities; provided, however,
--------
that an Indemnified Person's failure to notify the Borrower shall not affect the
Borrower's obligations under this Section 10.5 except to the extent that the
------------
Borrower is materially prejudiced thereby. Upon demand by any Indemnified
Person, the Borrower shall defend any investigation, action or proceeding
involving any Indemnified Liabilities which is brought or commenced against any
Indemnified Person, whether alone or together with the Borrower or any other
person, all at the Borrower's own cost and by counsel to be approved by the
Indemnified Person in the exercise of its reasonable judgment. Such Indemnified
Person may participate in and direct such defense, and such Indemnified Person
shall cooperate with the Borrower in all reasonable respects in connection with
such proceeding. Subject to the limitations set forth in this Section 10.5.3,
--------------
each Indemnified Person may elect to defend itself, at the Borrower=s cost, in
connection with any such investigation, action or proceeding, and the Borrower
shall have no right to participate in or direct any such defense. No
Indemnified Person shall settle any such proceeding unless such Indemnified
Person has, except in case of emergency, given the Borrower ten (10) days= prior
written notice of such settlement; provided, however, that nothing contained
--------
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herein shall require any Indemnified Person to obtain the Borrower=s consent to
any such settlement in order to enter into such settlement or to enforce the
indemnity set forth in this Section 10.5. In connection with any investigation,
------------
action or proceeding covered by this Section 10.5 against more than one
------------
Indemnified Person, all such Indemnified Persons shall be represented by the
same legal counsel selected by the Indemnified Persons; provided, however, that
--------
if such legal counsel determines in good faith that representing all such
Indemnified Persons would or could result in a conflict of interest under laws
or ethical principles applicable to such legal counsel, or that a defense or
counterclaim is available to an Indemnified Person that is not available to all
such Indemnified Persons, then to the extent reasonably necessary to avoid such
a conflict of interest or to permit unqualified assertion of such a defense or
counterclaim, each Indemnified Person shall be entitled to separate
representation by legal counsel selected by that Indemnified Person.
10.6 Assignments, Participations, etc.
--------------------------------
10.6.1 Any Bank may, with the written consent of the Borrower
(except during the existence of an Event of Default, when the Borrower's consent
is not required) and the Administrative Agent, which consents shall not be
unreasonably withheld or delayed, at any time assign and delegate to one or more
Eligible Assignees (each an "Assignee") all, or any ratable part of all, of the
--------
Loans, the Commitment and the other rights and obligations of such Bank under
the Loan Documents and the Environmental Indemnity, in a minimum amount of
$20,000,000.00 and integral multiples of $1,000,000.00 in excess thereof;
provided, however, that BofA shall retain for its own account not less than
--------
$50,000,000.00 of such Loans, Commitment and other rights and obligations;
provided further, however, that if a Bank other than BofA assigns less than all
----------------
of its Loans, Commitment and other rights and obligations to an Assignee, such
Bank shall retain for its own account not less than $25,000,000.00 of such
Loans, Commitments and other rights and obligations; and provided further,
----------------
however, that the Borrower and the Administrative Agent may continue to deal
solely and directly with the assigning Bank in connection with the interest so
assigned to an Assignee until (i) the assigning Bank and Assignee shall have
delivered to the Borrower and the Administrative Agent written notice of such
assignment, together with payment instructions, addresses and related
information with respect to the Assignee; (ii) the assigning Bank and its
Assignee shall have delivered to the Borrower and the Administrative Agent an
Assignment and Acceptance in the form of Exhibit E (an "Assignment and
--------- --------------
Acceptance"); and (iii) the assigning Bank or Assignee has paid to the
----------
Administrative Agent a processing fee in the amount of $5,000.00.
10.6.2 From and after the date on which the conditions set forth in
Section 10.6.1 are met and the Administrative Agent notifies the assigning Bank
--------------
that it has received (and provided its consent with respect to) an executed
Assignment and Acceptance and payment of the above-referenced processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
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Assignment and Acceptance, shall have the rights and obligations of a Bank under
the Loan Documents and the Environmental Indemnity, and (ii) the assigning Bank
shall, to the extent that it has assigned its rights and obligations under this
Agreement and the other Loan Documents pursuant to such Assignment and
Acceptance, relinquish its rights and (so long as the Assignee is not an
Affiliate or a Subsidiary of the assigning Bank or of a Person of which the
assigning Bank is an Affiliate or a Subsidiary) be released from its obligations
under the Loan Documents.
10.6.3 Within five (5) Business Days after its receipt of notice by
the Administrative Agent that the Administrative Agent has received an executed
Assignment and Acceptance and payment of the processing fee, and provided that
it consents to such assignment in accordance with Section 10.6.1, the Borrower
--------------
shall execute and deliver to the Administrative Agent, new Notes evidencing such
Assignee's assigned Loans and Commitment and, if the assigning Bank has retained
a portion of its Loans and its Commitment, replacement Notes in the principal
amount of the Loans retained by the assigning Bank (such Notes to be in exchange
for, but not in payment of, the Notes held by such Bank). Immediately upon the
Administrative Agent's receipt of the executed Assignment and Acceptance and the
processing fee, this Agreement shall be deemed to be amended to the extent, but
only to the extent, necessary to reflect the addition of the Assignee and the
resulting adjustment of the Commitments arising therefrom. The Commitment
allocated to each Assignee shall reduce the Commitment of the assigning Bank pro
---
tanto.
-----
10.6.4 Any Bank may, at any time, sell to one or more commercial
banks or other Persons that are not Affiliates of the Borrower (each a
"Participant") participation interests in any Loans, the Commitment of that Bank
------------
and the other interests of that Bank (the "originating Bank") under this
Agreement and the other Loan Documents; provided, however, that (i) the amount
-------- -------
of any such participation interest shall be not less than $20,000,000.00 and
shall be in integral multiples of $1,000,000.00 in excess thereof, (ii) the
originating Bank shall retain for its own account not less than $25,000,000.00
of the Loans, the Commitment and the other interests of such originating Bank
under this Agreement and the other Loan Documents, (iii) the originating Bank's
obligations under this Agreement shall remain unchanged, (iv) the originating
Bank shall remain solely responsible for the performance of such obligations,
(v) the Borrower and the Administrative Agent shall continue to deal solely and
directly with the originating Bank in connection with the originating Bank's
rights and obligations under this Agreement and the other Loan Documents, and
(vi) no Bank shall transfer or grant any participation interest under which the
Participant has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Loan Document, except to the extent
such amendment, consent or waiver would require unanimous consent of the Banks
as described in the first proviso to Section 10.1. In the case of any such
----- ------- ------------
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participation, the Participant shall not have any rights under this Agreement,
or any of the other Loan Documents, and all amounts payable by the Borrower
hereunder shall be determined as if such Bank had not sold such participation.
10.6.5 Notwithstanding any other provision in this Agreement, any
Bank may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and the Note it holds
in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB
or U.S. Treasury Regulation 31 CFR ' 203.14, and such Federal Reserve Bank may
enforce such pledge or security interest in any manner permitted under
applicable law.
10.7 Successors and Assigns . The provisions of this Agreement shall be
----------------------
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Administrative Agent and each Bank, and except for the
limitations on assignments by the Administrative Agent and each Bank under
Section 10.6.
------------
10.8 Confidentiality . Each Bank agrees to maintain the confidentiality
---------------
of all financial statements, cash flow reports, projections, environmental
reports and appraisals provided to it by the Borrower, or by the Administrative
Agent on the Borrower's behalf, under this Agreement or any other Loan Document,
and neither a Bank nor any of its Affiliates shall use any such information
other than in connection with this Agreement and the other Loan Documents or the
enforcement thereof, or in connection with other business now or hereafter
existing or contemplated with the Borrower, except to the extent such
information (a) was or becomes generally available to the public other than as a
result of disclosure by any Bank, or (b) was or becomes available on a non-
confidential basis from a source other than the Borrower, provided that such
source is not bound by a confidentiality agreement with the Borrower known to
such Bank; provided, however, that any Bank may disclose such information (i)
-------- -------
pursuant to any requirement of any Governmental Authority to which such Bank is
subject or in connection with an examination of such Bank by any such authority;
(ii) pursuant to subpoena or other court process; (iii) when required to do so
in accordance with the provisions of any applicable Requirement of Law; (iv) to
the extent reasonably required in connection with any litigation or proceeding
relating to the Loans to which the Administrative Agent, any Bank or their
respective Affiliates may be party; (v) to the extent reasonably required in
connection with the exercise of any remedy hereunder or under any other Loan
Document; (vi) to such Bank's independent auditors and other professional
advisors; (vii) to any Participant or Assignee, actual or potential, provided
that such Person agrees in writing to keep such information confidential to the
same extent required of the Banks hereunder; (viii) as to any Bank or its
Affiliate, as expressly permitted under the terms of any other document or
agreement regarding confidentiality to which the Borrower is party or is deemed
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a party with such Bank or such Affiliate; and (ix) to its Affiliates, provided
that such Affiliates agree in writing to be bound by the terms of this Section
-------
10.8.
----
10.9 Set-off . NO BANK SHALL EXERCISE, OR ATTEMPT TO EXERCISE, ANY RIGHT
-------
OF SET-OFF, BANKER'S LIEN, OR THE LIKE, AGAINST ANY DEPOSIT ACCOUNT OR PROPERTY
OF THE BORROWER HELD OR MAINTAINED BY THE BANK WITHOUT THE PRIOR WRITTEN CONSENT
OF THE ADMINISTRATIVE AGENT AND THE MAJORITY BANKS.
10.10 Notification of Addresses, Lending Offices, Etc . Each Bank shall
-----------------------------------------------
notify the Administrative Agent in writing of any changes in the address to
which notices to the Bank should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
10.11 Counterparts . This Agreement may be executed in any number of
------------
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of which, taken together, shall be deemed to constitute but
one and the same instrument.
10.12 Severability . The illegality or unenforceability of any provision
------------
of this Agreement or any instrument or agreement required hereunder shall not,
to the fullest extent permitted by applicable law, in any way affect or impair
the legality or enforceability of the remaining provisions of this Agreement or
any instrument or agreement required hereunder.
10.13 No Third Parties Benefited . This Agreement is made and entered
--------------------------
into for the sole protection and legal benefit of the Borrower, the Banks, the
Administrative Agent and the Agent-Related Persons, and their permitted
successors and assigns, and except as otherwise provided in Section 10.5 in the
------------
case of an Indemnified Person, no other Person shall be a direct or indirect
legal beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Loan Documents.
10.14 Governing Law and Jurisdiction .
------------------------------
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA; PROVIDED THAT THE
--------
ADMINISTRATIVE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL
LAW.
(b) SUBJECT TO THE PROVISIONS OF SECTION 10.15, ANY LEGAL ACTION OR
-------------
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PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA OR OF THE UNITED STATES FOR THE
NORTHERN DISTRICT OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT AND THE BANKS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
--------------------
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO.
10.15 Reference and Arbitration .
-------------------------
10.15.1 Judicial Reference. In any judicial action between or among
------------------
the parties in any way based on, arising out of or relating to this Agreement,
the other Loan Documents or any Loan (including any action or cause of action
based on or arising from an alleged tort), all decisions of fact and law shall
at the request of any party be referred to a referee in accordance with
California Code of Civil Procedure Sections 638 et seq. The parties shall
-- ---
designate to the court a referee or referees selected under the auspices of the
American Arbitration Association ("AAA") in the same manner as arbitrators are
selected in AAA-sponsored proceedings. The presiding referee of the panel, or
the referee if there is a single referee, shall be an active attorney or retired
judge. Judgment upon the award rendered by such referee or referees shall be
entered in the court in which such proceeding was commenced in accordance with
California Code of Civil Procedure Sections 644 and 645.
10.15.2 Mandatory Arbitration. After all Deeds of Trust and any
---------------------
other real property security have been released, fully reconveyed or
extinguished, any controversy or claim between or among the parties in any way
based on, arising out of or relating to this Agreement, the other Loan Documents
or any Loan (including any controversy or claim based on or arising from an
alleged tort) shall at the request of any party be determined by arbitration.
The arbitration shall be conducted in accordance with the United States
Arbitration Act (Title 9, U.S. Code), notwithstanding any choice of law
provision in this Agreement, and under the Commercial Rules of the AAA. The
arbitrator(s) shall give effect to statutes of limitation in determining any
claim. Any controversy concerning whether an issue is arbitrable shall be
determined by the arbitrator(s). Judgment upon the arbitration award may be
entered in any court having jurisdiction. The institution and maintenance of an
action for judicial relief or pursuit of a provisional or ancillary remedy shall
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not constitute a waiver of the right of any party, including the plaintiff, to
submit the controversy or claim to arbitration if any other party contests such
action for judicial relief.
10.15.3 Real Property Collateral. Notwithstanding the provisions of
------------------------
Section 10.15.2, no controversy or claim shall be submitted to arbitration
---------------
without the consent of all parties if, at the time of the proposed submission,
such controversy or claim arises from or relates to an obligation to the
Administrative Agent or the Banks that is secured by real property collateral.
If all parties do not consent to submission of such a controversy or claim to
arbitration, the controversy or claim shall be determined by reference as
provided in Section 10.15.1.
---------------
10.15.4 Provisional Remedies, Self-Help and Foreclosure-. No
------------------------------------------------
provision of this Section 10.15 shall limit the right of any party to this
-------------
Agreement to exercise self-help remedies such as set off, foreclosure against or
sale of any real or personal property collateral or security, or to obtain
provisional or ancillary remedies (including provisional remedies such as claim
and delivery and ancillary remedies such as the issuance of temporary
restraining orders and preliminary injunctions pending submission of any action
or cause of action to judicial reference or arbitration as otherwise required
hereunder) from a court of competent jurisdiction before, after, or during the
pendency of any arbitration or other proceeding. The exercise of a remedy does
not waive the right of any party to resort to arbitration or reference. At the
Administrative Agent's option, foreclosure under a Deed of Trust or mortgage may
be accomplished either by exercise of the power of sale under the Deed of Trust
or mortgage or by judicial foreclosure.
10.16 Entire Agreement; Amendment and Restatement . This Agreement,
-------------------------------------------
together with the other Loan Documents, embodies the entire agreement and
understanding among the Borrower, the Banks and the Administrative Agent, and
amends, restates and supersedes in its entirety the Existing Loan Agreement and
all other prior or contemporaneous agreements and understandings of such
Persons, verbal or written, relating to the subject matter hereof and thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the date first above written.
"Borrower"
CATELLUS DEVELOPMENT CORPORATION,
a Delaware corporation
By ___________________________________
___________________________________
[Printed Name and Title]
"Administrative Agent"
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent
By ___________________________________
___________________________________
[Printed Name and Title]
"Documentation Agent"
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent
By ___________________________________
___________________________________
[Printed Name and Title]
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"Banks"
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By ___________________________________
___________________________________
[Printed Name and Title]
Commitment: $77,500,000.00
THE FIRST NATIONAL BANK OF CHICAGO,
as a Bank
By ___________________________________
___________________________________
[Printed Name and Title]
Commitment: $33,000,000.00
THE BANK OF NOVA SCOTIA,
SAN FRANCISCO AGENCY,
as a Co-Agent and a Bank
By ___________________________________
___________________________________
[Printed Name and Title]
Commitment: $30,000,000.00
THE FIRST NATIONAL BANK OF BOSTON,
as a Co-Agent and a Bank
By ___________________________________
___________________________________
[Printed Name and Title]
Commitment: $30,000,000.00
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XXXXX XXXX XX XXXXXXXXXX, N.A.,
as a Co-Agent and a Bank
By ___________________________________
___________________________________
[Printed Name and Title]
Commitment: $30,000,000.00
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as a Bank
By ___________________________________
___________________________________
[Printed Name and Title]
Commitment: $12,500,000.00
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