CREDIT AGREEMENT DATED AS OF SEPTEMBER 2, 2015 BY AND AMONG CITY OFFICE REIT, INC., AS BORROWER, KEYBANK NATIONAL ASSOCIATION, ANY OTHER LENDERS THAT MAY BECOME PARTIES TO THIS AGREEMENT, AND KEYBANK NATIONAL ASSOCIATION, AS AGENT KEYBANC CAPITAL...
Exhibit 10.1
DATED AS OF SEPTEMBER 2, 2015
BY AND AMONG
AS BORROWER,
KEYBANK NATIONAL ASSOCIATION,
ANY OTHER LENDERS THAT MAY BECOME
PARTIES TO THIS AGREEMENT,
AND
KEYBANK NATIONAL ASSOCIATION,
AS AGENT
KEYBANC CAPITAL MARKETS,
AS SOLE LEAD ARRANGER AND SOLE BOOK MANAGER
§1. |
DEFINITIONS AND RULES OF INTERPRETATION. | 1 | ||||||
§1.1 | Definitions | 1 | ||||||
§1.2 | Rules of Interpretation. | 15 | ||||||
§2. |
THE CREDIT FACILITY. | 16 | ||||||
§2.1 | The Facility | 16 | ||||||
§2.2 | RESERVED | 16 | ||||||
§2.3 | Notes | 16 | ||||||
§2.4 | RESERVED. | 16 | ||||||
§2.5 | RESERVED. | 16 | ||||||
§2.6 | RESERVED. | 16 | ||||||
§2.7 | Interest on Loan. | 16 | ||||||
§2.8 | Use of Proceeds | 17 | ||||||
§3. |
REPAYMENT OF THE LOANS. | 17 | ||||||
§3.1 | Stated Maturity | 17 | ||||||
§3.2 | Mandatory Prepayments | 17 | ||||||
§3.3 | Optional Prepayments | 17 | ||||||
§3.4 | Partial Prepayments | 17 | ||||||
§3.5 | Effect of Prepayments | 17 | ||||||
§3.6 | Failure to Repay Within Nine Months; Amortization | 17 | ||||||
§4. |
CERTAIN GENERAL PROVISIONS. | 18 | ||||||
§4.1 | Conversion Options | 18 | ||||||
§4.2 | Fees | 18 | ||||||
§4.3 | RESERVED. | 18 | ||||||
§4.4 | Funds for Payments | 18 | ||||||
§4.5 | Computations | 20 | ||||||
§4.6 | Suspension of LIBOR Rate Loan | 20 | ||||||
§4.7 | Illegality | 21 | ||||||
§4.8 | Additional Interest | 21 | ||||||
§4.9 | Additional Costs, Etc. | 21 | ||||||
§4.10 | Capital Adequacy | 22 | ||||||
§4.11 | Breakage Costs | 22 | ||||||
§4.12 | Default Interest; Late Charge | 22 | ||||||
§4.13 | Certificate | 22 | ||||||
§4.14 | Limitation on Interest | 22 | ||||||
§4.15 | Certain Provisions Relating to Increased Costs and Non-Funding Lenders | 23 | ||||||
§5. |
COLLATERAL SECURITY. | 24 | ||||||
§5.1 | Collateral | 24 | ||||||
§5.2 | Release of Collateral | 24 | ||||||
§6. |
REPRESENTATIONS AND WARRANTIES | 24 | ||||||
§6.1 | Corporate Authority, Etc. | 24 | ||||||
§6.2 | Governmental Approvals | 25 | ||||||
§6.3 | Title to Real Estate | 25 | ||||||
§6.4 | Financial Statements | 25 |
§6.5 | No Material Changes | 25 | ||||||
§6.6 | Franchises, Patents, Copyrights, Etc. | 25 | ||||||
§6.7 | Litigation | 25 | ||||||
§6.8 | No Material Adverse Contracts, Etc. | 26 | ||||||
§6.9 | Compliance with Other Instruments, Laws, Etc. | 26 | ||||||
§6.10 | Tax Status | 26 | ||||||
§6.11 | No Event of Default | 26 | ||||||
§6.12 | Investment Company Act | 26 | ||||||
§6.13 | Absence of UCC Financing Statements, Etc. | 26 | ||||||
§6.15 | Certain Transactions | 27 | ||||||
§6.16 | Employee Benefit Plans | 27 | ||||||
§6.17 | Disclosure | 27 | ||||||
§6.18 | Trade Name; Place of Business | 27 | ||||||
§6.19 | Regulations T, U and X | 28 | ||||||
§6.20 | Environmental Compliance | 28 | ||||||
§6.21 | Subsidiaries; Organizational Structure | 29 | ||||||
§6.22 | RESERVED | 29 | ||||||
§6.23 | RESERVED | 29 | ||||||
§6.24 | Brokers | 29 | ||||||
§6.25 | Other Debt | 29 | ||||||
§6.26 | Solvency | 29 | ||||||
§6.27 | No Bankruptcy Filing | 29 | ||||||
§6.28 | No Fraudulent Intent | 30 | ||||||
§6.29 | Transaction in Best Interests of the Borrower; Consideration | 30 | ||||||
§6.30 | OFAC | 30 | ||||||
§7. |
AFFIRMATIVE COVENANTS | 30 | ||||||
§7.1 | Punctual Payment | 30 | ||||||
§7.2 | Maintenance of Office | 30 | ||||||
§7.3 | Records and Accounts | 30 | ||||||
§7.4 | Financial Statements, Certificates and Information | 31 | ||||||
§7.5 | Notices. | 32 | ||||||
§7.6 | Existence; Maintenance of Properties. | 33 | ||||||
§7.7 | Insurance | 33 | ||||||
§7.8 | Taxes; Liens | 33 | ||||||
§7.9 | Inspection of Books | 34 | ||||||
§7.10 | Compliance with Laws, Contracts, Licenses, and Permits | 34 | ||||||
§7.11 | Further Assurances | 34 | ||||||
§7.12 | RESERVED | 35 | ||||||
§7.13 | RESERVED | 35 | ||||||
§7.14 | Business Operations | 35 | ||||||
§7.15 | RESERVED. | 35 | ||||||
§7.16 | Ownership of Real Estate | 35 | ||||||
§7.17 | RESERVED | 35 | ||||||
§7.18 | Plan Assets | 35 | ||||||
§7.19 | Further Covenants | 35 | ||||||
§7.20 | RESERVED | 35 | ||||||
§7.21 | Borrower | 35 | ||||||
§8. |
NEGATIVE COVENANTS | 36 | ||||||
§8.1 | Restrictions on Indebtedness | 36 |
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§8.2 | Restrictions on Liens, Etc. | 36 | ||||||
§8.3 | Restrictions on Investments. | 37 | ||||||
§8.4 | Merger, Consolidation | 39 | ||||||
§8.5 | RESERVED. | 39 | ||||||
§8.6 | Compliance with Environmental Laws | 39 | ||||||
§8.7 | Distributions | 40 | ||||||
§8.8 | Asset Sales | 40 | ||||||
§8.9 | RESERVED | 40 | ||||||
§8.10 | Restriction on Prepayment of Indebtedness | 40 | ||||||
§8.11 | Derivatives Contracts | 40 | ||||||
§8.12 | Transactions with Affiliates | 40 | ||||||
§8.13 | Management Fees | 40 | ||||||
§9. |
FINANCIAL COVENANTS | 41 | ||||||
§9.1 | Maximum Leverage Ratio | 41 | ||||||
§9.2 | Minimum Liquidity | 41 | ||||||
§9.3 | Minimum Fixed Charge Coverage Ratio | 41 | ||||||
§9.4 | Minimum Tangible Net Worth | 41 | ||||||
§9.5 | Interest Rate Protection | 41 | ||||||
§10. |
CLOSING CONDITIONS | 41 | ||||||
§10.1 | Loan Documents | 41 | ||||||
§10.2 | Certified Copies of Organizational Documents | 41 | ||||||
§10.3 | Resolutions | 41 | ||||||
§10.4 | Incumbency Certificate; Authorized Signers | 41 | ||||||
§10.5 | Opinion of Counsel | 42 | ||||||
§10.6 | Payment of Fees | 42 | ||||||
§10.7 | Performance; No Default | 42 | ||||||
§10.8 | Representations and Warranties | 42 | ||||||
§10.9 | Proceedings and Documents | 42 | ||||||
§10.10 | Representations True; No Default | 42 | ||||||
§10.11 | Compliance Certificate | 42 | ||||||
§10.12 | Consents | 42 | ||||||
§10.13 | Other | 42 | ||||||
§11. |
RESERVED. | 43 | ||||||
§12. |
EVENTS OF DEFAULT; ACCELERATION; ETC. | 43 | ||||||
§12.1 | Events of Default and Acceleration | 43 | ||||||
§12.2 | RESERVED | 45 | ||||||
§12.3 | RESERVED | 45 | ||||||
§12.4 | Remedies | 45 | ||||||
§12.5 | Distribution of Collateral Proceeds | 45 | ||||||
§13. |
SETOFF | 46 | ||||||
§14. |
THE AGENT. | 46 | ||||||
§14.1 | Authorization | 46 | ||||||
§14.2 | Employees and Agents | 46 | ||||||
§14.3 | No Liability | 47 | ||||||
§14.4 | No Representations | 47 | ||||||
§14.5 | Payments | 47 |
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§14.6 | Holders of Notes | 48 | ||||||
§14.7 | Indemnity | 48 | ||||||
§14.8 | Agent as Lender | 48 | ||||||
§14.9 | Resignation | 48 | ||||||
§14.10 | Duties in the Case of Enforcement | 48 | ||||||
§14.11 | Bankruptcy | 49 | ||||||
§14.12 | RESERVED | 49 | ||||||
§14.13 | Reliance by the Agent | 49 | ||||||
§14.14 | Approvals | 49 | ||||||
§14.15 | Borrower Not Beneficiary | 50 | ||||||
§14.16 | Defaulting Lenders. | 50 | ||||||
§14.17 | Reliance on Hedge Provider | 51 | ||||||
§15. |
EXPENSES | 51 | ||||||
§16. |
INDEMNIFICATION | 52 | ||||||
§17. |
SURVIVAL OF COVENANTS, ETC. | 52 | ||||||
§18. |
ASSIGNMENT AND PARTICIPATION. | 53 | ||||||
§18.1 | Conditions to Assignment by the Lenders | 53 | ||||||
§18.2 | Register | 53 | ||||||
§18.3 | New Notes | 53 | ||||||
§18.4 | Participations | 54 | ||||||
§18.5 | Pledge by Lender | 54 | ||||||
§18.6 | No Assignment by the Borrower | 55 | ||||||
§18.7 | Disclosure | 55 | ||||||
§18.8 | Titled Agents | 55 | ||||||
§18.9 | Amendments to Loan Documents | 55 | ||||||
§19. |
NOTICES | 55 | ||||||
§20. |
RELATIONSHIP | 56 | ||||||
§21. |
GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE | 56 | ||||||
§22. |
HEADINGS | 56 | ||||||
§23. |
COUNTERPARTS | 56 | ||||||
§24. |
ENTIRE AGREEMENT, ETC. | 57 | ||||||
§25. |
WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS | 57 | ||||||
§26. |
DEALINGS WITH BORROWER | 57 | ||||||
§27. |
CONSENTS, AMENDMENTS, WAIVERS, ETC | 57 | ||||||
§28. |
SEVERABILITY | 58 | ||||||
§29. |
TIME OF THE ESSENCE | 58 | ||||||
§30. |
NO UNWRITTEN AGREEMENTS | 58 | ||||||
§31. |
REPLACEMENT NOTES | 58 | ||||||
§32. |
NO THIRD PARTIES BENEFITED | 58 | ||||||
§33. |
PATRIOT ACT | 59 | ||||||
§34. |
RESERVED. | 59 |
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§35. |
LIABILITY | 59 | ||||||
§36. ADDITIONAL AGREEMENTS CONCERNING OBLIGATIONS OF THE BORROWER AND THE PLEDGOR. | 59 | |||||||
§36.1 | Attorney-in-Fact | 59 | ||||||
§36.2 | RESERVED. | 59 | ||||||
§36.3 | Waiver of Automatic or Supplemental Stay | 59 | ||||||
§36.4 | Waiver of Defenses | 59 | ||||||
§36.5 | Waiver | 61 | ||||||
§36.6 | Xxxxxxxxxxxxx | 00 | ||||||
§00. |
ACKNOWLEDGMENT OF BENEFITS; EFFECT OF AVOIDANCE PROVISIONS. | 62 |
v
EXHIBITS AND SCHEDULES
Exhibit A | FORM OF LOAN NOTE | |
Exhibit B | RESERVED | |
Exhibit C | RESERVED | |
Exhibit D | RESERVED | |
Exhibit E | RESERVED | |
Exhibit F | RESERVED | |
Exhibit G | FORM OF COMPLIANCE CERTIFICATE | |
Exhibit H | FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT | |
Exhibit I | RESERVED | |
Schedule 1.1 | LENDERS AND COMMITMENTS | |
Schedule 1.2 | RESERVED | |
Schedule 6.3 | LIST OF ALL ENCUMBRANCES ON ASSETS | |
Schedule 6.5 | NO MATERIAL CHANGES | |
Schedule 6.7 | PENDING LITIGATION | |
Schedule 6.15 | CERTAIN TRANSACTIONS | |
Schedule 6.20(d) | RESERVED | |
Schedule 6.21 | SUBSIDIARIES | |
Schedule 6.23 | PROPERTY | |
Schedule 8.8 | RESERVED | |
Schedule 19 | NOTICE ADDRESSES |
vi
THIS CREDIT AGREEMENT is made as of the 2nd day of September, 2015 (the “Agreement”), by and among City Office REIT, Inc., a Maryland corporation (“Borrower”), CITY OFFICE REIT OPERATING PARTNERSHIP, L.P., a Maryland limited partnership (“Pledgor”), KEYBANK NATIONAL ASSOCIATION (“KeyBank”), any other lending institutions that may become parties hereto pursuant to §18 (collectively, together with KeyBank “Lenders”), and KEYBANK NATIONAL ASSOCIATION, as administrative agent for Lenders (“Agent”), and KEYBANC CAPITAL MARKETS, as Sole Lead Arranger and Sole Book Manager.
WHEREAS, the Borrower has requested that the Lenders make a bridge Loan to the Borrower for the purposes set forth herein (the “Loan”, as hereinafter further defined); and
WHEREAS, the Lenders are willing to lend funds upon the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the recitals herein and mutual covenants and agreements contained herein, the parties hereto hereby covenant and agree as follows:
§1. DEFINITIONS AND RULES OF INTERPRETATION.
§1.1 Definitions. The following terms shall have the meanings set forth in this §1 or elsewhere in the provisions of this Agreement referred to below:
Adjusted EBITDA. On any date of determination, the sum of (1) the EBITDA for the prior fiscal quarter most recently ended, multiplied by four (4), less (b) the Capital Reserve.
Advisor. City Office Real Estate Management Inc.
Affiliate. An Affiliate, as applied to any Person, shall mean any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means (a) the possession, directly or indirectly, of the power to vote more than fifty percent (50%) of the stock, shares, voting trust certificates, beneficial interest, partnership interests, member interests or other interests having voting power for the election of directors of such Person or otherwise to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise, or (b) the ownership of (i) a general partnership interest, (ii) a managing member’s or manager’s interest in a limited liability company or (iii) a limited partnership interest or preferred stock (or other ownership interest) representing more than fifty percent (50%) of the outstanding limited partnership interests, preferred stock or other ownership interests of such Person.
Agent. KeyBank National Association, acting as administrative agent for the Lenders, and its successors and assigns.
Agent’s Head Office. The Agent’s head office located at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000, or at such other location as the Agent may designate from time to time by notice to the Borrower and the Lenders.
Agent’s Special Counsel. Xxxxxx & Xxxxxxxxxx LLP, or such other counsel as selected by Agent.
Agreement. This Credit Agreement, as the same may be amended, modified, supplemented and/or extended from time to time, including the Schedules and Exhibits hereto.
Applicable Margin. The Applicable Margin for LIBOR Rate Loans shall be 6.00% and the Applicable Margin for Base Rate Loans shall be 5.00%.
Approved Fund. Any Fund that is administered or managed by (a) a Lender, or (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Arranger. KeyBanc Capital Markets or any successors thereto.
Assignment and Acceptance Agreement. See §18.1.
Authorized Officer. Any of the following Persons: Xxxxx Xxxxxx, Xxxx Xxxxxxx, Xxxx Xxxxx and such other Persons as the Borrower shall designate in a written notice to Agent.
Balance Sheet Date. [December 31, 2014].
Bankruptcy Code. Title 11, U.S.C.A., as amended from time to time or any successor statute thereto.
Base Rate. The greatest of (a) the fluctuating annual rate of interest announced from time to time by the Agent at the Agent’s Head Office as its “prime rate”, and (b) one half of one percent (0.50%) above the Federal Funds Effective Rate. The Base Rate is a reference rate and does not necessarily represent the lowest or best rate being charged to any customer. Any change in the rate of interest payable hereunder resulting from a change in the Base Rate shall become effective as of the opening of business on the day on which such change in the Base Rate becomes effective, without notice or demand of any kind.
Base Rate Loans. Loans bearing interest calculated by reference to the Base Rate.
Borrower. As defined in the preamble hereto.
Breakage Costs. The commercially reasonable cost to any Lender of re-employing funds bearing interest at LIBOR incurred (or reasonably expected to be incurred during such Interest Period) in connection with (i) any payment of any portion of the Loans bearing interest at LIBOR prior to the termination of any applicable Interest Period, or (ii) the conversion of a LIBOR Rate Loan to any other applicable interest rate on a date other than the last day of the relevant Interest Period.
Building. With respect to each parcel of Real Estate, all of the buildings, structures and improvements now or hereafter located thereon
Business Day. Any day on which banking institutions located in the same city and State as the Agent’s Head Office is located are open for the transaction of banking business and, in the case of LIBOR Rate Loans, which also is a LIBOR Business Day.
Capital Lease Obligations. With respect to the Borrower and its Subsidiaries for any period, the obligations of the Borrower or any Subsidiary to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as liabilities on a balance sheet of the Borrower and its Subsidiaries under GAAP and the amount of which obligations shall be the capitalized amount thereof determined in accordance with GAAP.
2
Capital Reserve. On an annual basis, an amount equal to $0.40 per square foot. The Capital Reserve shall be calculated based on the total rentable square footage of the Buildings owned (or ground leased) at the end of each fiscal quarter, less the square footage of unoccupied space held for development or redevelopment.
Cash Equivalents. As of any date, (i) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof having maturities of not more than one year from such date, (ii) time deposits and certificates of deposits having maturities of not more than one year from such date and issued by any domestic commercial bank having, (A) senior long term unsecured debt rated at least A or the equivalent thereof by S&P or A2 or the equivalent thereof by Xxxxx’x and (B) capital and surplus in excess of $100,000,000; and (iii) shares of any money market mutual fund rated at least AAA or the equivalent thereof by S&P or at least AAA or the equivalent thereof by Xxxxx’x.
CERCLA. The Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9601 et seq.
Change of Control. A Change of Control shall exist upon the occurrence of any of the following:
(a) During any twelve month period on or after the date of this Agreement, individuals who at the beginning of such period constituted the Board of Directors or Trustees of the Borrower (the “Board”) (together with any new directors whose election by the Board or whose nomination for election by the shareholders of the Borrower was approved by a vote of at least a majority of the members of the Board then in office who either were members of the Board at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the members of the Borrower then in office;
(b) Any Person (including a Person’s Affiliates and associates) or group (as that term is understood under Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations thereunder), shall have acquired beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of a percentage (based on voting power, in the event different classes of stock or voting interests shall have different voting powers) of the voting stock or voting interests of the Borrower equal to at least twenty percent (20%) who did not hold such beneficial ownership as of the date of this Agreement;
(c) Borrower shall fail to own at least fifty five percent (55%) of the limited partner Equity Interests of the Pledgor and own and control the general partner of the Pledgor, shall fail to own such interests in the Pledgor free of any lien, encumbrance or other adverse claim, or shall fail to control (along with City Office Real Estate Management, Inc., through an advisory agreement) the management and policies of the Pledgor;
3
(d) the Borrower or the Pledgorconsolidates with, is acquired by, or merges into or with any Person (other than a merger permitted by Section 8.4); or
(e) the Pledgor fails to own, directly or indirectly, free and clear of any Liens, 100% of the ownership interests in the Intellicenter Property.
Closing Date. The date agreed to by the parties hereto on which all of the conditions set forth in §10 have been satisfied and the Loan is advanced in accordance with the terms hereof.
Code. The Internal Revenue Code of 1986, as amended.
Collateral. All of the property, rights and interests of the Borrower and the Pledgor that are subject to the security interests, security title, liens and pledges created by the Security Documents, which Collateral shall include a pledge of 49% of the Equity Interests in the Subsidiary which is acquiring the Intellicenter Property, such pledge to be delivered on a post closing basis upon the expiration of any required notice requirements under the Property Loan Documents with respect thereto.
Commitment. As to each Lender, the amount set forth on Schedule 1.1 hereto as such Lender’s commitment to fund the Loan in accordance with the terms of this Agreement.
Commitment Percentage. With respect to each Lender, the percentage set forth on Schedule 1.1 hereto as such Lender’s percentage of the aggregate Commitments of all of the Lenders, as the same may be changed from time to time in accordance with the terms of this Agreement.
Competitor. Any Person that is a competitor with the Borrower or the Pledgor in acquiring and investing in assets similar to those of the Borrower, the Pledgor and their Subsidiaries, excluding any commercial or investment banking institution regulated by any governmental entity.
Compliance Certificate. See §7.4(c).
Consolidated. With reference to any term defined herein, that term as applied to the accounts of a Person and its Subsidiaries, determined on a consolidated basis in accordance with GAAP.
Consolidated Leverage Ratio. The ratio of the Borrower’s Consolidated Indebtedness to Total Asset Value.
Conversion/Continuation Request. A notice given by the Borrower to the Agent of its election to convert or continue a Loan in accordance with §4.1.
4
Credit Party(ies). Individually and collectively, the Borrower and the Pledgor.
Default. See §12.1.
Default Rate. See §4.12.
Defaulting Lender. Any Lender that, as determined by the Agent, (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loan, within three Business Days of the date required to be funded by it hereunder, unless such Lender is contesting its obligation to fund such amount in good faith, (b) has notified the Borrower, or the Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it has extended credit, (c) has failed, within three Business Days after request by the Agent, to confirm in a manner reasonably satisfactory to the Agent that it will comply with its funding obligations, unless such Lender is contesting its obligation to fund in good faith, or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any bankruptcy or other debtor relief law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
Derivatives Contract. Any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement. Not in limitation of the foregoing, the term “Derivatives Contract” includes any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement, including any such obligations or liabilities under any such master agreement.
Distribution. Any (a) dividend or other monetary distribution, direct or indirect, on account of any Equity Interest of the Borrower, now or hereafter outstanding, except a dividend or other distribution payable solely in Equity Interest to the holders of that class; (b) redemption, conversion, exchange, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interest of the Borrower now or hereafter outstanding; and (c) payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire any Equity Interests of the Borrower now or hereafter outstanding.
Dollars or $. Dollars in lawful currency of the United States of America.
Domestic Lending Office. Initially, the office of each Lender designated as such on Schedule 1.1 hereto; thereafter, such other office of such Lender, if any, located within the United States that will be making or maintaining Base Rate Loan.
5
EBITDA. An amount derived from the following during any given period (a) net income, plus (b) to the extent included in the determination of net income, depreciation, amortization, interest expense (including any preferred dividends) and income taxes, plus (c) property acquisition fees plus or minus (d) to the extent included in the determination of net income, any extraordinary losses or gains, such as those resulting from sales or payment of Indebtedness but excluding straight-line rents and FAS 141 accruals or similar adjustments, in each case, as determined on a Consolidated basis in accordance with GAAP (unless otherwise indicated herein), and including (without duplication) the Equity Percentage of EBITDA for the Borrower’s non-wholly owned Affiliates.
Eligible Assignee. (a) A Lender; (b) an Affiliate of a Lender; (c) an Approved Fund, and (d) any other Person (other than a natural person) approved by (i) the Agent, and (ii) unless an Event of Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or any of the Borrower’s or the Pledgor’s Affiliates or Subsidiaries, or unless an Event of Default is in existence, a Competitor; and provided further that it shall not be unreasonable to withhold consent if an assignee’s status would increase the costs to the Borrower or impose other restrictions on the Borrower.
Employee Benefit Plan. Any employee benefit plan within the meaning of §3(3) of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate, other than a Multiemployer Plan.
Environmental Laws. All applicable past (which have current effect), present or future federal, state, county and local laws, by-laws, rules, regulations, codes and ordinances, or any judicial or administrative interpretations thereof, and the requirements of any governmental agency or authority having or claiming jurisdiction with respect thereto, applicable to the regulation or protection of the environment, the health and safety of persons and property and all other environmental matters and shall include, but not be limited to, all orders, decrees, judgments and rulings imposed through any public or private enforcement proceedings, relating to Hazardous Substances (as defined below) or the existence, use, discharge, release, containment, transportation, generation, storage, management or disposal thereof, or otherwise regulating or providing for the protection of the environment applicable to Real Estate and relating to Hazardous Substances, or to the existence, use, discharge, release or disposal thereof. Environmental Laws presently include, but are not limited to, the following laws: Comprehensive Environmental Response Compensation and Liability Act (42 X.X.X. §0000 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), the Public Health Service Act (42 U.S.C. §300(f) et seq.), the Pollution Prevention Act (42 U.S.C. §13101 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. §136 et seq.), the Resource Conservation and Recovery Act (42 X.X.X. §0000 et seq.), the Federal Clean Water Act (33 X.X.X. §0000 et seq.), The Federal Clean Air Act (42 X.X.X. §0000 et seq.), and the applicable laws and regulations of each State in which any Real Estate is located.
Equity Interests. With respect to any Person, any share of capital stock of (or other ownership or profit interests in) such Person, any warrant, option or other right for the purchase or other acquisition from such Person of any share of capital stock of (or other ownership or profit interests in) such Person, any security convertible into or exchangeable for any share of capital stock of (or other ownership or profit interests in) such Person or warrant, right or option for the purchase or other acquisition from such Person of such shares (or such other interests), and any other ownership or profit interest in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such share, warrant, option, right or other interest is authorized or otherwise existing on any date of determination.
Equity Percentage. The aggregate ownership percentage of the Borrower or its Subsidiaries in each Affiliate.
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ERISA. The Employee Retirement Income Security Act of 1974, as amended and in effect from time to time.
ERISA Reportable Event. A reportable event with respect to a Guaranteed Pension Plan within the meaning of §4043 of ERISA and the regulations promulgated thereunder as to which the requirement of notice has not been waived.
Event of Default. See §12.1.
Facility Amount. Fourteen Million Dollars ($14,000,000).
Federal Funds Effective Rate. For any day, the rate per annum (rounded upward to the nearest one-hundredth of one percent (1/100 of 1%)) announced by the Federal Reserve Bank of Cleveland on such day as being the weighted average of the rates on overnight federal funds transactions arranged by federal funds brokers on the previous trading day, as computed and announced by such Federal Reserve Bank in substantially the same manner as such Federal Reserve Bank computes and announces the weighted average it refers to as the “Federal Funds Effective Rate.”
Fixed Charge Ratio. The ratio of (a) Adjusted EBITDA to (b) all of the principal due and payable on the Indebtedness (other than amounts paid in connection with balloon maturities, refinancings, unscheduled principal payments or principal payments on the Loans), plus all Interest Expense, plus the aggregate of all cash dividends payable on any preferred stock, all based upon the immediately preceding calendar quarter (annualized).
Fund. Any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
GAAP. Generally accepted accounting principles consistently applied.
Governmental Authority. The government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
Guaranteed Pension Plan. Any employee pension benefit plan within the meaning of §3(2) of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate the benefits of which are guaranteed on termination in full or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer Plan.
Hazardous Substances. Mean and includes asbestos, flammable materials, explosives, radioactive or nuclear substances, polychlorinated biphenyls, other carcinogens, oil and other petroleum products, radon gas, urea formaldehyde, chemicals, gases, solvents, pollutants or contaminants that could be a detriment or pose a danger to the environment or to the health or safety of any person, and any other hazardous or toxic materials, wastes and substances which are defined, determined or identified as such in any past, present or future federal, state or local laws, by-laws, rules, regulations, codes or ordinances or any judicial or administrative interpretation thereof in concentrations which violate Environmental Laws except for such de minimus amounts used on Real Estate in the ordinary course of business in compliance with all applicable Environmental Laws.
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Hedge Obligations. As may be applicable at any time, all obligations of the Borrower to any Lender Hedge Provider to make any termination payments under any Derivatives Contract with respect to an interest rate swap, collar, cap or floor or a forward rate agreement or other agreement regarding the hedging of interest rate risk exposure, and any confirming letter executed pursuant to such hedging agreement, all as amended, restated or otherwise modified.
Indebtedness. Without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, including mandatorily redeemable preferred stock, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business, fees paid under advisory agreements and other reasonable fees paid to affiliates), (f) all Indebtedness (excluding non-recourse carve-out guarantees until such time as the Borrower or the Pledgor is called upon to make payments under any of these guarantees, at which time such guarantees shall thereafter be included in the definition of Indebtedness to the extent of the actual liability thereunder) of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person in an amount equal to the lesser of such Indebtedness or the value of the encumbered property, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others (excluding non-recourse carve-out guarantees until such time as the Borrower or the Pledgor is called upon to make payments under any of these guarantees, at which time such guarantees shall thereafter be included in the definition of Indebtedness to the extent of the actual liability thereunder), (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (k) all currently payable obligations of such Person with respect to any Hedge Obligations. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefore as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. Indebtedness shall be calculated on a consolidated basis in accordance with GAAP (unless otherwise indicated herein), and including (without duplication) the Equity Percentage of Indebtedness for the Pledgor’s non-wholly owned Affiliates.
Intellicenter Property. The real property consisting of the commercial office building and associated land located at 12653 and 00000 Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx, Xxxxxxx.
Interest Expense. All paid, accrued or capitalized interest expense on such Person’s Indebtedness (whether direct, indirect or contingent, and including, without limitation, interest on all convertible debt), and including (without duplication) the Equity Percentage of Interest Expense for the Borrower’s non-Wholly Owned Affiliates.
Interest Payment Date. As to each Loan, the first day of each calendar month.
Interest Period. With respect to each LIBOR Rate Loan (a) initially, the period commencing on the Closing Date and ending one, two, or three months thereafter and (b) thereafter, each period commencing on the day following the last day of the next preceding Interest Period applicable to such Loan and ending on the last day of one of the periods set forth above, as selected by the Borrower in a Conversion/Continuation Request; provided that all of the foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period with respect to a LIBOR Rate Loan would otherwise end on a day that is not a LIBOR Business Day, such Interest Period shall end on the next succeeding LIBOR Business Day, unless such next succeeding LIBOR Business Day occurs in the next calendar month, in which case such Interest Period shall end on the next preceding LIBOR Business Day, as determined conclusively by the Agent in accordance with the then current bank practice in London, England;
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(ii) if the Borrower shall fail to give notice as provided in §4.1, the Borrower shall be deemed to have requested a continuation of the affected LIBOR Rate Loan as a LIBOR Rate Loan for an interest period of one month on the last day of the then current Interest Period with respect thereto as provided in and subject to the terms of §4.1(c);
(iii) any Interest Period pertaining to a LIBOR Rate Loan 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 applicable calendar month; and
(iv) no Interest Period relating to a LIBOR Rate Loan shall extend beyond the Maturity Date, as applicable.
Interpolated Rate. At any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Rate for the longest period for which the LIBO Rate is available that is shorter than the Impacted Interest Period; and (b) the LIBO Rate for the shortest period for which that LIBO Rate is available that exceeds the Impacted Interest Period, in each case, at such time.
KeyBank. As defined in the preamble hereto.
Leases. Leases, licenses and agreements, whether written or oral, relating to the use or occupation of space in or with respect to any Real Estate.
Legal Requirements shall mean all applicable federal, state, county and local laws, rules, regulations, codes and ordinances, and the requirements in each case of any governmental agency or authority having or claiming jurisdiction with respect thereto, including, but not limited to, those applicable to zoning, subdivision, building, health, fire, safety, sanitation, the protection of the handicapped, and environmental matters and shall also include all orders and directives of any court, governmental agency or authority having or claiming jurisdiction with respect thereto.
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Lenders. KeyBank, the other lending institutions which are party hereto and any other Person which becomes an assignee of any rights of a Lender pursuant to §18 (but not including any participant as described in §18); individually each, a “Lender”.
Lender Hedge Provider. As may be applicable at any time with respect to any Hedge Obligations, any counterparty thereto that, at the time the applicable hedge agreement was entered into, was the Agent or an Affiliate of the Agent.
LIBOR. For any LIBOR Rate Loan for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for U.S. Dollars) for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Agent in its reasonable discretion; in each case the “LIBOR Screen Rate”) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided that (i) if the LIBOR Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement; provided further that if the LIBOR Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”) then the LIBOR shall be the Interpolated Rate; provided that if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement, and (ii) if no such rate administered by ICE Benchmark Administration (or by such other Person that has taken over the administration of such rate for U.S. Dollars) is available to the Agent, the applicable LIBOR for the relevant Interest Period shall instead be the rate determined by the Agent to be the rate at which KeyBank or one of its Affiliate banks offers to place deposits in U.S. dollars with first class banks in the London interbank market at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, in the approximate amount of the relevant LIBOR Rate Loan and having a maturity equal to such Interest Period. For any period during which a Reserve Percentage shall apply, LIBOR with respect to LIBOR Rate Loans shall be equal to the amount determined above divided by an amount equal to 1 minus the Reserve Percentage.
LIBOR Business Day. Any day on which commercial banks are open for international business (including dealings in Dollar deposits) in London, England.
LIBOR Lending Office. Initially, the office of each Lender designated as such on Schedule 1.1 hereto; thereafter, such other office of such Lender, if any, that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate Loans. Loans bearing interest calculated by reference to LIBOR.
Lien. See §8.2.
Liquidity. The aggregate of (i) Unrestricted Cash and Cash Equivalents and (ii) marketable securities acceptable to the Agent in its reasonable discretion.
Loan(s). The Loan or any portion thereof made in accordance with the terms hereof in Dollars by Lenders to the Borrower on the Closing Date, in the Facility Amount.
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Loan Documents. This Agreement, the Notes, the Security Documents, and all other documents, instruments or agreements now or hereafter executed or delivered by or on behalf of the Borrower or the Pledgor in connection with the Loan and intended to constitute a Loan Document.
Material Adverse Effect. A material adverse effect on (a) the business, properties, assets, financial condition or results of operations of the Borrower and its Subsidiaries in each case considered as a whole; (b) the ability of the Borrower (taken as a whole) to perform their material obligations under the Loan Documents; or (c) the validity or enforceability of any of the material Loan Documents or the material rights or remedies of the Agent or the Lenders thereunder.
Maturity Date. September 2, 2016, or such earlier date on which the Loan shall become due and payable pursuant to the terms hereof.
Moody’s. Xxxxx’x Investor Service, Inc.
Multiemployer Plan. Any multiemployer plan within the meaning of §3(37) of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate.
Net Operating Income. For any income producing Real Estate and for a given period, the difference between (a) any rentals, proceeds and other income received from such property during the determination period (excluding straight-line rents and FAS 141 accruals and similar adjustments), less (b) an amount equal to all costs and expenses (excluding Interest Expense, Taxes, depreciation and amortization expense, and any expenditures that are capitalized in accordance with GAAP) incurred as a result of, or in connection with, or properly allocated to, the operation or leasing of such property during the determination period (other than asset management fees); less (c) the Capital Expenditure Reserve; less (d) all rents, common area reimbursements and other income for such Real Estate received with respect to leases as to which (i) the tenant or any guarantor thereunder is subject to any bankruptcy, reorganization, insolvency, dissolution, liquidation or similar debtor relief proceeding, unless such tenant has expressly assumed its obligations under the applicable lease in such proceeding, (ii) the tenant which has exercised any termination option or otherwise not renewed its lease with a termination date within three months of the subject quarter end, and/or (iii) with respect to any guarantor subject to any bankruptcy, reorganization, insolvency, dissolution, liquidation or similar debtor relief proceeding, unless such guarantor is replaced by a credit worthy guarantor reasonably capable of performing the guarantor’s obligation and in the case of any lease in excess of 5,000 square feet such replacement guarantor shall be reasonably acceptable to Agent, plus (e) projected rentals in connection with any replacement lease executed in accordance with the terms of this Agreement with respect to any space described in (d) above. Net Operating Income shall be calculated based on the immediately preceding calendar quarter unless the Real Estate has not been owned by the Borrower or its Subsidiaries for the entirety of such calendar quarter, in which event Net Operating Income shall be grossed up for such ownership period.
Non Excluded Taxes. See §4.4(b).
Non-Recourse Exclusions. With respect to any Non-Recourse Indebtedness of any Person, any industry standard exclusions from the non-recourse limitations governing such Indebtedness, including, without limitation, exclusions for claims that (i) are based on fraud, intentional misrepresentation, misapplication or misappropriation of funds, gross negligence or willful misconduct (ii) result from intentional mismanagement of or physical waste at the Real Estate securing such Non-Recourse Indebtedness, or (iii) arise from the presence of Hazardous Substances on the Real Estate securing such Non-Recourse Indebtedness (whether contained in a loan agreement, promissory note, indemnity agreement or other document), or (iv) are the result of any unpaid real estate taxes and assessments if sufficient cash flow from the Real Estate exists (whether contained in a loan agreement, promissory note, indemnity agreement or other document).
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Non-Recourse Indebtedness. Indebtedness of Pledgor, Borrower, their respective Subsidiaries, or an Unconsolidated Affiliate of any such Person, which is secured by one or more parcels of Real Estate or interests therein or equipment and which is not a general obligation of Pledgor, Borrower or such Subsidiary or Unconsolidated Affiliate, the holder of such Indebtedness having recourse solely to the parcels of Real Estate, or interests therein, securing such Indebtedness or the direct owner of such real estate, the leases thereon and the rents, profits and equity thereof or equipment, as applicable (except for recourse against the general credit of the Person obligated thereon for any Non-Recourse Exclusions), provided that in calculating the amount of Non-Recourse Indebtedness at any time, the Borrower’s reasonable estimate of the amount of any Non-Recourse Exclusions which are the subject of a claim and action shall not be included in the Non-Recourse Indebtedness but shall constitute Recourse Indebtedness. Non-Recourse Indebtedness shall also include Indebtedness of a Subsidiary of Pledgor or Borrower that is not a Credit Party or of an Unconsolidated Affiliate which is a special purpose entity that is recourse solely to such Subsidiary or Unconsolidated Affiliate, which is not cross-defaulted to other Indebtedness of the Borrower and which does not constitute Indebtedness of any other Person (other than such Subsidiary or Unconsolidated Affiliate which is the borrower thereunder).
Notes. See §2.3.
Obligations. The term “Obligations” shall mean and include:
A. The payment of the principal sum, interest at variable rates, charges and indebtedness evidenced by the Notes including any extensions, renewals, replacements, increases, modifications and amendments thereof, given by the Borrower to the order of the respective Lenders;
B. The payment, performance, discharge and satisfaction of each covenant, warranty, representation, undertaking and condition to be paid, performed, satisfied and complied with by the Borrower under and pursuant to this Agreement or the other Loan Documents;
C. The payment of all costs, expenses, legal fees and liabilities incurred by the Agent and the Lenders in connection with the enforcement of any of the Agent’s or any Lender’s rights or remedies under this Agreement or the other Loan Documents, or any other instrument, agreement or document which evidences or secures any other obligations or collateral therefor, whether now in effect or hereafter executed; and
D. The payment, performance, discharge and satisfaction of all other liabilities and obligations of the Borrower to the Agent or any Lender, whether now existing or hereafter arising, direct or indirect, absolute or contingent, and including, without limitation express or implied upon the generality of the foregoing, each liability and obligation of the Borrower under any one or more of the Loan Documents and any amendment, extension, modification, replacement or recasting of any one or more of the instruments, agreements and documents referred to in this Agreement or any other Loan Document or executed in connection with the transactions contemplated by this Agreement or any other Loan Document; provided however that notwithstanding anything to the contrary set forth in the definition of Obligations, with respect to any indemnification, contingent or other similar obligations, such matters shall be considered “Obligations” only to the extent a reasonable good faith claim has been made on such indemnification, contingent or similar obligation on or before the date that all other Obligations are satisfied in full.
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OFAC. Office of Foreign Asset Control of the Department of the Treasury of the United States of America.
Outstanding. With respect to the Loan, the aggregate unpaid principal amount thereof as of any date of determination.
Partnership Agreement. The Amended and Restated Limited Partnership Agreement of the Pledgor dated April 21, 2014.
Patriot Act. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as the same may be amended from time to time, and corresponding provisions of future laws.
PBGC. The Pension Benefit Guaranty Corporation created by §4002 of ERISA and any successor entity or entities having similar responsibilities.
Permitted Liens. Liens, security interests and other encumbrances permitted by §8.2.
Person. Any individual, corporation, limited liability company, partnership, trust, unincorporated association, or other legal entity, and any government or any governmental agency or political subdivision thereof.
Plan Assets. Assets of any employee benefit plan subject to Part 4, Subtitle B, Title I of ERISA.
Pledge Agreement. Collectively, each Pledge Agreement wherein the Borrower or the Pledgor pledges the Collateral to the Agent on behalf of the Lenders.
Pledgor. As defined in the preamble hereto.
Property Loan Documents. As defined in the Pledge Agreement.
Real Estate. All real property at any time owned or leased (as lessee or sublessee) by the Borrower, the Pledgor, or any of their respective Subsidiaries.
Register. See §18.2.
Release. See §6.20(c)(iii).
Rent Roll. A report prepared by the Borrower showing for the Intellicenter Property owned or leased by the Borrower or the Pledgor, its occupancy, tenants, lease expiration dates, lease rent and other information in substantially the form presented to the Agent on or prior to the date hereof.
Required Lenders. As of any date when there are two (2) or more Lenders, at least two (2) Lenders whose aggregate Commitment Percentage is equal to or greater than sixty-six and 2/3 percent (66.67%) of the Total Commitment; provided that in determining said percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded and the Commitment Percentages of the Lenders shall be redetermined for voting purposes only to exclude the Commitment Percentages of such Defaulting Lenders.
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Reserve Percentage. For any Interest Period, that percentage which is specified three (3) Business Days before the first day of such Interest Period by the Board of Governors of the Federal Reserve System (or any successor) or any other governmental or quasi-governmental authority with jurisdiction over Agent or any Lender for determining the maximum reserve requirement (including, but not limited to, any marginal reserve requirement) for the Agent or any Lender with respect to liabilities constituting of or including (among other liabilities) Eurocurrency liabilities in an amount equal to that portion of the Loan affected by such Interest Period and with a maturity equal to such Interest Period.
Revolving Credit Facility. The revolving credit facility by and among the Borrower, certain of its Affiliates, Key Bank National Association, as agent and a lender, and the other lenders party thereto, entered into as of June 26, 2015, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
Sanctioned Person. Any Person that is (i) listed on OFAC’s List of Specially Designated Nationals and Blocked Persons, (ii) otherwise the subject or target of Sanctions, to the extent U.S. persons are prohibited from engaging in transactions with such a Person, and (iii) 50 percent or greater owned or controlled by a Person described in clause (i) or (ii) above.
Sanction(s). Any sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority, in each case, solely to the extent applicable to the Borrower or any of its Subsidiaries.
SEC. The federal Securities and Exchange Commission.
Security Documents. Collectively, the Pledge Agreement, UCC-1 financing statements and any further collateral security agreements or assignments to the Agent for the benefit of the Lenders.
S&P. Standard & Poor’s Ratings Group.
State. A state of the United States of America and the District of Columbia.
Subsidiary. For any Person, any corporation, partnership, limited liability company or other entity of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership, limited liability company or other entity (without regard to the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person, and shall include all Persons the accounts of which are consolidated with those of such Person pursuant to GAAP.
Tangible Net Worth. The difference between (a) Total Asset Value less (b) all Indebtedness.
Taxes. Any present or future taxes, levies, imposts, duties, charges, fees, or similar deductions or withholdings that are imposed by any Governmental Authority.
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Total Commitment. As of the date of this Agreement, the Total Commitment is equal to the Facility Amount.
Type. As to the Loan, its nature as a Base Rate Loan or a LIBOR Rate Loan.
Unconsolidated Affiliate. In respect of any Person, any other Person in whom such Person holds an Investment, (a) whose financial results would not be consolidated under GAAP with the financial results of such first Person on the consolidated financial statements of such first Person, and (b) which is not a Subsidiary of such first Person.
Unconsolidated Subsidiary. In respect of any Person, any other Person in whom such Person holds an Investment, whose financial results would not be consolidated under GAAP with the financial results of such first Person on the consolidated financial statements of such first Person.
Unrestricted Cash and Cash Equivalents. As of any date of determination, the sum of (a) the aggregate amount of Unrestricted Cash and (b) the aggregate amount of Unrestricted Cash Equivalents (valued at fair market value). As used in this definition, “Unrestricted” means the specified asset is not subject to any escrow, reserves or Liens or similar claims of any kind in favor of any Person (other than any statutory right of set off).
Value. The sum of the following: (a) for Real Estate for which the Borrower has obtained an Appraisal, the value indicated in such Appraisal, and (b) for all other Real Estate, the undepreciated cost basis of such Real Estate.
Wholly Owned Subsidiary. As to the Borrower, any Subsidiary of the Borrower that is directly or indirectly owned 100% by Borrower.
§1.2 Rules of Interpretation.
(a) A reference to any document or agreement shall include such document or agreement as amended, modified or supplemented from time to time in accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes the singular.
(c) A reference to any law includes any amendment or modification of such law.
(d) A reference to any Person includes its permitted successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings assigned to them by GAAP applied on a consistent basis by the accounting entity to which they refer.
(f) The words “include”, “includes” and “including” are not limiting.
(g) The words “approval” and “approved”, as the context requires, means an approval in writing given to the party seeking approval.
(h) All terms not specifically defined herein or by GAAP, which terms are defined in the Uniform Commercial Code as in effect in the State of New York, have the meanings assigned to them therein.
(i) Reference to a particular “§”, refers to that section of this Agreement unless otherwise indicated.
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(j) The words “herein”, “hereof”, “hereunder” and words of like import shall refer to this Agreement as a whole and not to any particular section or subdivision of this Agreement.
(k) The words “the date hereof” or words of like import shall mean the date that this Agreement is fully executed by all parties.
(l) In the event of any change in generally accepted accounting principles after the date hereof or any other change in accounting procedures pursuant to §7.3 which would affect the computation of any financial covenant, ratio or other requirement set forth in any Loan Document, then upon the request of the Borrower or the Agent, the Borrower and the Agent shall negotiate promptly, diligently and in good faith in order to amend the provisions of the Loan Documents such that such financial covenant, ratio or other requirement shall continue to provide substantially the same financial tests or restrictions of the Borrower as in effect prior to such accounting change, as determined by the Agent in its good faith judgment. Until such time as such amendment shall have been executed and delivered by the Borrower and the Agent, such financial covenants, ratio and other requirements, and all financial statements and other documents required to be delivered under the Loan Documents, shall be calculated and reported as if such change had not occurred.
§2. THE CREDIT FACILITY.
§2.1 The Facility. Subject to the terms and conditions herein set forth, Lenders agree to make the Loan to the Borrower in an amount equal to the Facility Amount. The Loan shall be funded in one advance on the date hereof in accordance with the terms and conditions of this Agreement. The Borrower may not re-borrow any portion of the Loan which is repaid.
§2.2 RESERVED.
§2.3 Notes. The Loan shall, if requested by each Lender, be evidenced by separate promissory notes of the Borrower in substantially the form of Exhibit A hereto (collectively, the “ Notes”), dated of even date with this Agreement (except as otherwise provided in §18.3) and completed with appropriate insertions. One Note shall be payable to the order of each Lender which so requests the issuance of a Note in the principal amount equal to such Lender’s Commitment or, if less, the outstanding amount of the Loan made by such Lender, plus interest accrued thereon, as set forth below.
§2.4 RESERVED.
(a) Each Base Rate Loan shall bear interest for the period commencing with the date such loan is selected as a Base Rate Loan and ending on the date on which such Base Rate Loan is repaid or converted to a LIBOR Rate Loan at the rate per annum equal to the sum of the Base Rate plus the Applicable Margin for Base Rate Loans.
(b) Each LIBOR Rate Loan shall bear interest for the period commencing the date such loan is selected as a LIBOR Rate Loan and ending on the last day of each Interest Period with respect thereto at the rate per annum equal to the sum of LIBOR determined for such Interest Period plus the Applicable Margin for LIBOR Rate Loans.
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(c) The Borrower promises to pay interest on the Loan in arrears on each Interest Payment Date with respect thereto.
(d) Base Rate Loans and LIBOR Rate Loans may be converted to Loans of the other Type as provided in §4.1.
(a) The Borrower shall have the right, at its election, to prepay the outstanding amount of the Loan, as a whole or in part, at any time without penalty or premium; provided, that if any prepayment of the outstanding amount of any LIBOR Rate Loans pursuant to this §3.3 is made on a date that is not the last day of the Interest Period relating thereto, such prepayment shall be accompanied by the payment of any amounts due pursuant to §4.8.
(b) The Borrower shall give the Agent, no later than 1:00 p.m. (Eastern time) at least three (3) days prior written notice of any prepayment pursuant to this §3.3, in each case specifying the proposed date of prepayment of the Loan and the principal amount to be prepaid (provided that (i) any such notice may be revoked or modified upon one (1) day’s prior notice to the Agent) and/or (ii) any such notice or repayment may be conditioned upon the consummation of a transaction.
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repayment. If the Borrower’s proposed repayment plan reflects insufficient funds so to repay all such amounts on or before the Maturity Date, the amount equal to the anticipated deficiency shall be repaid to Agent in equal monthly installments over the then unexpired term hereof.
§4. CERTAIN GENERAL PROVISIONS.
(a) The Borrower may elect from time to time to convert any of its outstanding Loans to a Loan of another Type and such Loans shall thereafter bear interest as a Base Rate Loan or a LIBOR Rate Loan, as applicable; provided that (i) with respect to any such conversion of a LIBOR Rate Loan to a Base Rate Loan, the Borrower shall give the Agent at least one (1) Business Day’s prior written notice of such election, and such conversion shall only be made on the last day of the Interest Period with respect to such LIBOR Rate Loan unless the Borrower pays Breakage Costs as required under this Agreement; (ii) with respect to any such conversion of a Base Rate Loan to a LIBOR Rate Loan, the Borrower shall give the Agent at least three (3) LIBOR Business Days’ prior written notice of such election and the Interest Period requested for such Loan, the principal amount of the Loan so converted shall be in a minimum aggregate amount of $100,000 and, after giving effect to the making of such Loan, there shall be no more than four (4) LIBOR Rate Loans outstanding at any one time; and (iii) no Loan may be converted into a LIBOR Rate Loan when any Default or Event of Default has occurred and is continuing. All or any part of the outstanding Loans of any Type may be converted as provided herein, provided that no partial conversion shall result in a Base Rate Loan in a principal amount of less than $100,000 or a LIBOR Rate Loan in a principal amount of less than $100,000. On the date on which such conversion is being made, each Lender shall take such action as is necessary to transfer its Commitment Percentage of such Loans to its Domestic Lending Office or its LIBOR Lending Office, as the case may be. Each Conversion/Continuation Request relating to the conversion of a Base Rate Loan to a LIBOR Rate Loan shall be irrevocable by the Borrower.
(b) Any LIBOR Rate Loan may be continued as such Type upon the expiration of an Interest Period with respect thereto by compliance by the Borrower with the terms of §4.1; provided that no LIBOR Rate Loan may be continued as such when any Default or Event of Default has occurred and is continuing, but shall be automatically converted to a Base Rate Loan on the last day of the Interest Period relating thereto ending during the continuance of any Default or Event of Default.
(c) In the event that the Borrower does not notify the Agent of its election hereunder with respect to any LIBOR Rate Loan, such Loan shall be automatically continued at the end of the applicable Interest Period as a LIBOR Rate Loan for an Interest Period of one month unless such Interest Period shall be greater than the time remaining until the Maturity Date, in which case such Loan shall be automatically converted to a Base Rate Loan at the end of the applicable Interest Period.
(a) All payments of principal, interest, facility fees, closing fees and any other amounts due hereunder or under any of the other Loan Documents shall be made to Agent, for the respective accounts of Lenders and the Agent, as the case may be, at the Agent’s Head Office, not later than 3:00 p.m. (Eastern
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time) on the day when due (or such later time as is acceptable to the Agent in the event of a payment in full of all Loan and a termination of Commitments hereunder), in each case in lawful money of the United States in immediately available funds. To the extent not already paid pursuant to the preceding sentence, the Agent is hereby authorized to charge the accounts of the Borrower with KeyBank, on the dates when the amount thereof shall become due and payable, with the amounts of the principal of and interest on the Loan and all fees, charges, expenses and other amounts owing to the Agent and/or the Lenders under the Loan Documents. Subject to the foregoing, all payments made to the Agent on behalf of the Lenders, and actually received by the Agent, shall be deemed received by the Lenders on the date actually received by the Agent.
(b) All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any Taxes now or hereafter imposed or levied by the United States of America or any political subdivision thereof or taxing or other authority therein or any jurisdiction from or through which a payment is made by the Borrower, excluding any income Taxes, franchise or similar Taxes and any Taxes imposed by a jurisdiction as a result of any connection between a Lender and such jurisdiction other than any connection arising solely from executing, delivering, performing its obligations under, or enforcing any Loan Document (such Taxes, other than those so excluded as specifically set forth in this sentence referred to as “Non-Excluded Taxes”), unless the Borrower is compelled by law to make such deduction or withholding. If any such obligation is imposed upon the Borrower with respect to any amount payable by the Borrower hereunder or under any of the other Loan Documents, the Borrower will pay to the Agent, for the account of the Lenders or (as the case may be) the Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Agent to receive the same net amount which the Lenders or the Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided, however, that the Borrower shall not be required to increase any such amounts payable to any Lender with respect to any Non-Excluded Taxes (i) that are attributable to such Lender’s failure to comply with the requirements of §4.4(c) or such Lender’s failure to comply with Sections 1471 through 1474 of the Code or any regulations promulgated thereunder (“FATCA”) to establish an exemption from withholding thereunder; (ii) that are branch profits taxes imposed by the United States or any similar taxes imposed by any other jurisdiction under the laws of which a Lender is organized or in which its applicable lending office is located; or (iii) in the case of a Non-U.S. Lender and notwithstanding any consent given pursuant to §18.1, that are imposed on amounts payable to such Lender at the time such Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment) to receive additional amounts from the Borrower with respect to such Non-Excluded Taxes pursuant to this §4.4(b). The Borrower will deliver promptly to Agent certificates or other valid vouchers for all Taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under any other Loan Document. In the event a Lender receives a refund or credit of any Non-Excluded Taxes paid by the Borrower pursuant to this section, such Lender will pay to the Borrower the amount of such refund or credit (and any interest received with respect thereto) promptly upon receipt thereof; provided that if at any time thereafter such Lender is required to return such refund or credit, the Borrower shall promptly repay to such Lender the amount of such refund or credit, net of any reasonable incremental additional costs.
(c) Each Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. federal income tax purposes (a “Non-U.S. Lender”), to the extent such Lender is lawfully able to do so, shall provide the Borrower on or prior to the Closing Date (in the case of each Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date of the Assignment and Acceptance Agreement pursuant to which it becomes a Lender (in the case of each other Lender), and at such other times as may be necessary in the determination of the Borrower, with (x) two (2) original copies of Internal Revenue Service Form X-0XXX, X-0XXX and/or W-8IMY (or, in each case, any successor forms), properly completed and duly executed by such Lender, and any other such duly executed form(s) or statement(s) (including whether such Lender has complied with the FATCA) which may, from
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time to time, be prescribed by law and, which, pursuant to applicable provisions of (i) an income tax treaty between the United States and the country of residence of such Lender, (ii) the Code, or (iii) any applicable rules or regulations in effect under (i) or (ii) above, establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payments to such Lender of principal, interest, fees or other amounts payable under any of the Loan Documents, or (y) if such Lender is not a “bank” or other Person described in Section 881(c)(3) of the Code, a Certificate Regarding Non-Bank Status together with two (2) original copies of Internal Revenue Service Form W-8BEN (or any successor form), properly completed and duly executed by such Lender, and such other documentation required under the Code and requested by the Borrower to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payments to such Lender of interest payable under any of the Loan Documents. Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for United States federal income tax purposes (a “U.S. Lender”) and is not an exempt recipient within the meaning of Treasury Regulations Section 1.6049-4(c) shall provide the Borrower on or prior to the Closing Date (or, if later, on or prior to the date on which such Lender becomes a party to this Agreement) two (2) original copies of Internal Revenue Service From W-9 (or any successor form), properly completed and duly executed by such Lender, certifying that such U.S. Lender is entitled to an exemption from United States backup withholding tax, or otherwise prove that it is entitled to such an exemption. Each Lender required to deliver any forms, certificates or other evidence with respect to United States federal income tax withholding matters pursuant to this section hereby agrees, from time to time after the initial delivery by such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any material respect, that such Lender shall promptly provide the Borrower two (2) new original copies of Internal Revenue Service Form X-0, X-0XXX, X-0XXX and/or W-8IMY (or, in each case, any successor form), or a Certificate Regarding Non-Bank Status and two (2) original copies of Internal Revenue Service Form W-8BEN (or any successor form), as the case may be, properly completed and duly executed by such Lender, and such other documentation required under the Code and requested by the Borrower to confirm or establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to payments to such Lender under the Loan Documents, or notify the Borrower of its inability to deliver any such forms, certificates or other evidence.
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(a) subject any Lender or the Agent to any tax, levy, impost, duty, charge, fee, deduction or withholding of any nature with respect to this Agreement, the other Loan Documents, such Lender’s Commitment, the Loan (other than taxes based upon or measured by the gross receipts, income or profits of such Lender or the Agent or its franchise tax), or
(b) materially change the basis of taxation (except for changes in taxes on gross receipts, income or profits or its franchise tax) of payments to any Lender of the principal of or the interest on any Loan or any other amounts payable to any Lender under this Agreement or the other Loan Documents, or
(c) impose or increase or render applicable any special deposit, reserve, assessment, liquidity, capital adequacy or other similar requirements (whether or not having the force of law and which are not already reflected in any amounts payable by the Borrower hereunder) against assets held by, or deposits in or for the account of, or loans by, or commitments of an office of any Lender, or
(d) impose on any Lender or the Agent any other conditions or requirements with respect to this Agreement, the other Loan Documents, the Loan, such Lender’s Commitment, or any class of loans or commitments of which any of the Loan or such Lender’s Commitment forms a part; and the result of any of the foregoing is:
(i) to increase the cost to any Lender of making, funding, issuing, renewing, extending or maintaining the Loan, or such Lender’s Commitment, or
(ii) to reduce the amount of principal, interest or other amount payable to any Lender or Agent hereunder on account of such Lender’s Commitment or the Loan, or
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(iii) to require any Lender or the Agent to make any payment or to forego any interest or other sum payable hereunder, the amount of which payment or foregone interest or other sum is calculated by reference to the gross amount of any sum receivable or deemed received by such Lender or the Agent from the Borrower hereunder, then, and in each such case, the Borrower will (and as to clauses (a) and (b) above, subject to the provisions of Section §4.4), within thirty (30) days of demand made by such Lender or (as the case may be) the Agent at any time and from time to time and as often as the occasion therefor may arise, pay to such Lender or the Agent such additional amounts as such Lender or the Agent shall reasonably determine in good faith to be sufficient to compensate such Lender or the Agent for such additional cost, reduction, payment or foregone interest or other sum. For the avoidance of doubt, the provisions of this §4.9 shall not apply with respect to Taxes, which shall be governed by §4.4(b) and §4.4(c).
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maximum amount permitted under applicable law; and if from any circumstance the Lenders shall ever receive anything of value deemed interest by applicable law in excess of the maximum lawful amount, an amount equal to any excessive interest shall be applied to the reduction of the principal balance of the Obligations and to the payment of interest or, if such excessive interest exceeds the unpaid balance of principal of the Obligations, such excess shall be refunded to the Borrower. All interest paid or agreed to be paid to the Lenders shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full period until payment in full of the principal of the Obligations (including the period of any renewal or extension thereof) so that the interest thereon for such full period shall not exceed the maximum amount permitted by applicable law. This Section shall control all agreements between or among the Borrower, the Lenders and the Agent.
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§6.1 Corporate Authority, Etc.
(b) Other Credit Parties. Each of the other Credit Parties (i) is a corporation, limited partnership, general partnership, limited liability company or trust duly organized under the laws of its State of organization and is validly existing and in good standing under the laws thereof, (ii) has all requisite power to own its property and conduct its business as now conducted and as presently contemplated and (iii) is in good standing and is duly authorized to do business in each jurisdiction where Real Estate is owned or leased by it is located to the extent required to do so under applicable law and in each other jurisdiction where a failure to be so qualified could have a Material Adverse Effect.
(c) Other Subsidiaries. Except where a failure to satisfy such representation would not have a Material Adverse Effect, each of the Subsidiaries of the Borrower (i) is a corporation, limited partnership, general partnership, limited liability company or trust duly organized under the laws of its State of organization and is validly existing and in good standing under the laws thereof, (ii) has all requisite power to own its property and conduct its business as now conducted and as presently contemplated and (iii) is in good standing and is duly authorized to do business in each jurisdiction where Real Estate owned or leased by it is located.
(d) Authorization. The execution, delivery and performance of this Agreement and the other Loan Documents to which the Borrower or the Pledgor is a party and the transactions contemplated hereby and thereby (i) are within the authority of the Credit Parties, (ii) have been duly authorized by all necessary actions on the part of the Credit Parties, (iii) do not and will not conflict with or result in any breach or contravention of any provision of law, statute, rule or regulation to which any Credit Party is subject or any judgment, order, writ, injunction, license or permit applicable to any Credit Party, except as would not reasonably be expected to result in a Material Adverse Effect, (iv) do not and will not conflict with or constitute a default (whether with the passage of time or the giving of notice, or both) under any provision of the partnership agreement, articles of incorporation or other charter documents or bylaws of, or any agreement or other instrument binding upon, any Credit Party or or any of its properties where, in the case of any agreement or other instrument binding upon any Credit Party or any of its properties, any conflict or default would not reasonably be expected to have a Material Adverse Effect, (v) do not and will not result in or
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require the imposition of any lien or other encumbrance on any of the properties, assets or rights of any Credit Party other than the liens and encumbrances in favor of the Agent contemplated by this Agreement and the other Loan Documents, and (vi) do not require the approval or consent of any Person other than those already obtained and delivered to Agent or except as would not reasonably be expected to result in a Material Adverse Effect.
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threatened against the Borrower or the Pledgor before any court, tribunal, arbitrator, mediator or administrative agency or board which question the validity of this Agreement or any of the other Loan Documents, any action taken or to be taken pursuant hereto or thereto or any lien, security title or security interest created or intended to be created pursuant hereto or thereto. As of the date hereof, except as set forth on Schedule 6.7, there are no judgments, final orders or awards outstanding against or affecting the Borrower, the Pledgor, or any Real Estate, individually or in the aggregate, in excess of $1,000,000.
§6.11 No Event of Default. No Default or Event of Default has occurred and is continuing.
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§6.19 Regulations T, U and X. No portion of any Loan is to be used for the purpose of purchasing or carrying any “margin security” or “margin stock” as such terms are used in Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 220, 221 and 224. No Borrower or other Credit Party is engaged, nor will it engage, principally or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any “margin security” or “margin stock” as such terms are used in Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 220, 221 and 224.
§6.20 Environmental Compliance. Except as set forth on Schedule 6.20:
(a) None of the Real Estate, nor to the Borrower’s knowledge, any tenant or operations thereon, is in violation, or alleged violation, of any Environmental Law, which violation would reasonably be expected to have a Material Adverse Effect.
(b) Neither the Borrower nor the Pledgor has received written notice from any third party including, without limitation, any federal, state or local governmental authority, (i) that it has been identified by the United States Environmental Protection Agency (“EPA”) as a potentially responsible party under CERCLA with respect to a site listed on the National Priorities List, 40 C.F.R. Part 000 Xxxxxxxx X (1986); (ii) that any Hazardous Substance(s) which it has generated, transported or disposed of have been found at any site at which a federal, state or local agency or other third party has conducted, or has demanded that the Borrower conduct a remedial investigation, removal or other response action pursuant to any Environmental Law; or (iii) that it is or shall be a named party to any claim, action, cause of action, complaint, or legal or administrative proceeding (in each case, contingent or otherwise) arising out of any third party’s incurrence of costs, expenses, losses or damages in connection with the release of Hazardous Substances in violation of applicable Environmental Law, which in the case of clauses (i) through (iii) above which involves the Real Estate and which would reasonably be expected to have a Material Adverse Effect.
(c) (i) No portion of the Real Estate is used by the Borrower or the Pledgor, or by any tenant or operator thereon, for the handling, processing, storage or disposal of Hazardous Substances except in compliance with applicable Environmental Laws, and to our knowledge and except as provided in any phase I environmental assessment obtained by any Subsidiary, no underground tank or other underground storage receptacle for Hazardous Substances is located on any portion of the Real Estate except those which are being operated and maintained, and, if required, remediated, in compliance with Environmental Laws; (ii) in the course of any business activities conducted by the Borrower, its Subsidiaries or, to the Borrower’s actual knowledge, the tenants and operators of their properties, no Hazardous Substances have been generated or are being used on the Real Estate except in the ordinary course of the Borrower’s or the Pledgor’s or their tenants’ and operators’ business and in compliance with applicable Environmental Laws; (iii) to the Borrower’s actual knowledge, there has been no past or present releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, disposing or dumping (other than in reasonable quantities to the extent necessary in the ordinary course of operation of the Borrower’s, the Pledgor’s, their tenants’ or operators’ business and, in any event, in compliance with all Environmental Laws) (a “Release”) or threatened Release of Hazardous Substances on, upon, into or from the Real Estate, which Release would reasonably be expected to have a Material Adverse Effect; (iv) to the Borrower’s knowledge, there have been no Releases on, upon, from or into any real property in the vicinity of any of the Real Estate which, through soil or groundwater contamination, have come to be located on the Real Estate, and which would be reasonably anticipated to have a Material Adverse Effect; and (v) to the Borrower’s actual knowledge, any Hazardous Substances that have been generated on any of the Real Estate have been transported off-site in accordance with all applicable Environmental Laws and in a manner that would not reasonably be expected to have a Material Adverse Effect.
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(d) Except for such matters that shall be complied with as of the Closing Date, by virtue of the transactions set forth herein and contemplated hereby, or as a condition to the effectiveness of any other transactions contemplated hereby, to our knowledge and except as provided in any phase I environmental assessment obtained by any Subsidiary, none of the Borrower, the Pledgor, or the Real Estate will become subject to any applicable Environmental Law requiring the performance of environmental site assessments, or the removal or remediation of Hazardous Substances, or the giving of notice to any governmental agency or the recording or delivery to other Persons of an environmental disclosure document or statement pursuant to applicable Environmental Laws, which would reasonably be expected to have a Material Adverse Effect.
(e) To our knowledge and except as provided in any phase I environmental assessment obtained by the Borrower, there are no existing or closed sanitary waste landfills, or hazardous waste treatment, storage or disposal facilities on the Real Estate except where such existence would not reasonably be expected to have a Material Adverse Effect.
(f) Neither the Borrower nor the Pledgor has received any written notice from any party that any use, operation, or condition of any Real Estate has caused any adverse condition on any other property that would reasonably be expected to result in a claim under applicable Environmental Law that would have a Material Adverse Effect, nor does the Borrower or the Pledgor have actual knowledge of any existing facts or circumstances that could reasonably be expected to form the basis for such a claim.
§6.21 Subsidiaries; Organizational Structure. Schedule 6.21 sets forth, as of the Closing Date, all of the Subsidiaries and Unconsolidated Subsidiaries of the Borrower, the form and jurisdiction of organization of each of the Subsidiaries and Unconsolidated Subsidiaries, and the owners of the direct and indirect ownership interests therein.
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§6.29 Transaction in Best Interests of the Borrower; Consideration. The transaction evidenced by this Agreement and the other Loan Documents is in the best interests of the Borrower and the Pledgor. The direct and indirect benefits to inure to the Borrower or the Pledgor pursuant to this Agreement and the other Loan Documents constitute substantially more than “reasonably equivalent value” (as such term is used in §548 of the Bankruptcy Code) and “valuable consideration,” “fair value,” and “fair consideration,” (as such terms are used in any applicable state fraudulent conveyance law), in exchange for the benefits to be provided by the Borrower and the Pledgor pursuant to this Agreement and the other Loan Documents. The Borrower and the Pledgor further acknowledge and agree that the Borrower and the Pledgor constitute a single integrated and common enterprise and that each receives a benefit from the availability of credit under this Agreement.
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(a) not later than one hundred twenty (120) days after the end of each calendar year, the audited Consolidated balance sheet of the Pledgor and its Subsidiaries at the end of such year, and the related audited consolidated statements of income, changes in capital and cash flows for such year, setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by an Authorized Officer or the chief financial officer or accounting officer of the Borrower that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a member firm of KPMG, LLP or another nationally recognized accounting firm, and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) not later than sixty (60) days after the end of each calendar quarter of each year, copies of the unaudited consolidated balance sheet of the Pledgor and its Subsidiaries and the Borrower and its Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements of income and cash flows for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by an Authorized Officer or the chief financial officer or accounting officer of the Borrower that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by an Authorized Officer or the chief financial officer or chief accounting officer of the Borrower in the form of Exhibit G hereto (or in such other form as the Agent may reasonably approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in §9. All income, expense, debt and value associated with Real Estate or other Investments disposed of during any quarter will be eliminated from calculations, where applicable. The Compliance Certificate shall be accompanied by copies of the statements of Net Operating Income for such calendar quarter for the Real Estate, prepared on a basis consistent with the statements furnished to Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to Agent, together with a certification by an Authorized Officer or the chief financial officer or chief accounting officer of the Borrower that the information contained in such statement fairly presents in all material respects Net Operating Income of the Real Estate for such periods;
(d) simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000 or more of the Borrower or the Pledgor which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, upon request by Agent, a statement (i) listing the Real Estate owned by the Borrower and its Subsidiaries (or in which the Borrower or its Subsidiaries owns an interest), (ii) listing the Indebtedness (excluding, for the purposes hereof, the redemption obligations under the Partnership Agreement) of the Borrower and its Subsidiaries, which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non-recourse;
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(f) if requested by the Agent, promptly after they are filed with the Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Borrower;
(g) not later than December 15 of each year, a budget and business plan for the Borrower for the next calendar year;
(h) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or the Pledgor and any settlement discussions relating thereto (unless the Borrower in good faith believe that such disclosure could result in a waiver or loss of attorney work product, attorney-client or any other applicable privilege), property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or the Pledgor) as the Agent may reasonably request.
Any material to be delivered pursuant to this §7.4 may be delivered electronically directly to Agent or made available to the Agent pursuant to an accessible website and the Lenders provided that such material is in a format reasonably acceptable to the Agent, and such material shall be deemed to have been delivered to the Agent and the Lenders upon the Agent’s receipt thereof or access to the website containing such material. Upon the request of the Agent, the Borrower shall deliver paper copies thereof to the Agent and the Lenders. The Borrower authorize the Agent to disseminate any such materials through the use of Intralinks, SyndTrak or any other electronic information dissemination system provided that system is secure and access thereto is protected by a password that is only disclosed to the Lenders, and the Borrower releases the Agent and the Lenders from any liability in connection therewith (other than the liability based on the Agent’s gross negligence or willful misconduct).
(a) Defaults. The Borrower and the Pledgor will promptly upon becoming aware of same notify the Agent in writing of the occurrence of any Default or Event of Default, which notice shall describe such occurrence with reasonable specificity and shall state that such notice is a “notice of default”. If any Person shall give any written notice or take any other action in respect of a claimed default (whether or not constituting an Event of Default) under this Agreement or under any note, evidence of indebtedness, indenture or other obligation to which or with respect to which the Borrower is a party or obligor, whether as principal or surety, and such default would permit the holder of such note or obligation or other evidence of indebtedness to accelerate the maturity thereof, which acceleration would either cause a Default or have a Material Adverse Effect, the Borrower and the Pledgor shall forthwith give written notice thereof to the Agent and each of the Lenders, describing the notice or action and the nature of the claimed default.
(b) Environmental Events. The Borrower or the Pledgor will give notice to the Agent within five (5) Business Days of becoming aware of (i) any known Release, or threat of Release, of any Hazardous Substances in violation of any applicable Environmental Law; (ii) any violation of any Environmental Law that the Borrower reports in writing or is reportable by such Person in writing (or for which any written report supplemental to any oral report is made) to any federal, state or local environmental agency or (iii) any written inquiry, proceeding, or investigation, including a written notice from any agency of potential environmental liability, of any federal, state or local environmental agency or board, that in the case of either clauses (i) – (iii) above involves any Real Estate and would reasonably be expected to have a Material Adverse Effect.
(c) Notification of Claims Against Collateral. The Borrower or the Pledgor will give notice to the Agent in writing within five (5) Business Days of becoming aware of any material setoff, claims (including, with respect to the Real Estate, environmental claims), withholdings or other defenses to which any of the Collateral, or the rights of the Agent or the Lenders with respect to the Collateral, are subject, which could have a Material Adverse Effect.
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(e) ERISA. The Borrower or Pledgor will give notice to the Agent within ten (10) Business Days after Borrower or any ERISA Affiliate (i) gives or is required to give notice to the PBGC of any “reportable event” (as defined in §4043 of ERISA) with respect to any Guaranteed Pension Plan, Multiemployer Plan or Employee Benefit Plan, or knows that the plan administrator of any such plan has given or is required to give notice of any such reportable event; (ii) gives a copy of any notice (including any received from the trustee of a Multiemployer Plan) of complete or partial withdrawal liability under Title IV of ERISA; or (iii) receives any notice from the PBGC under Title IV or ERISA of an intent to terminate or appoint a trustee to administer any such plan, in each case if such event or occurrence would reasonably be expected to have a Material Adverse Effect.
(f) Notification of Lenders. Within five (5) Business Days after receiving any notice under this §7.5, the Agent will forward a copy thereof to each of the Lenders, together with copies of any certificates or other written information that accompanied such notice.
§7.6 Existence; Maintenance of Properties.
(a) The Borrower and the Pledgor will preserve and keep in full force and effect their legal existence in the jurisdiction of its incorporation or formation. The Borrower and the Pledgor will preserve and keep in full force all of their rights and franchises, the preservation of which is necessary to the conduct of their business, to the extent that the failure to do so could reasonably be expected to result in a Material Adverse Effect.
(b) The Borrower (i) will cause all of the Real Estate to be maintained and kept in good condition, repair and working order (ordinary wear and tear excepted) and supplied with all necessary equipment, and (ii) will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof in each case under (i) or (ii) above in which the failure to do so would cause a Material Adverse Effect.
The Borrower or the Pledgor will, at their expense, procure and maintain with financially sound and reputable insurance companies not Affiliates of any Credit Party, insurance with respect to the properties and business of the Borrower and its Subsidiaries of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons.
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for labor, materials or supplies, that if unpaid might by law become a lien or charge upon any of its property or other Liens affecting any of the Collateral or other property of the Borrower or the Pledgor, or, with respect to their respective Subsidiaries that in case of any of the foregoing could reasonably be expected to have a Material Adverse Effect, provided that any such tax, assessment, charge or levy or claim need not be paid if the validity or amount thereof shall currently be contested in good faith by appropriate proceedings which shall suspend the collection thereof with respect to such property, neither such property nor any portion thereof or interest therein would be in any danger of sale, forfeiture or loss by reason of such proceeding and the Borrower or any such Subsidiary shall have set aside on its books adequate reserves in accordance with GAAP; and provided, further, that forthwith upon the commencement of proceedings to foreclose any lien that may have attached as security therefor, the Borrower or any such Subsidiary either (i) will provide a bond issued by a surety reasonably acceptable to Agent and sufficient to stay all such proceedings or (ii) if no such bond is provided, will pay each such tax, assessment, charge or levy.
§7.10 Compliance with Laws, Contracts, Licenses, and Permits. The Borrower and the Pledgor will comply in all respects with (i) all applicable laws and regulations now or hereafter in effect wherever its business is conducted, (ii) the provisions of its corporate charter, partnership agreement, limited liability company agreement or declaration of trust, as the case may be, and other charter documents and bylaws, (iii) all agreements and instruments to which it is a party or by which it or any of its properties may be bound, (iv) all applicable decrees, orders, and judgments, and (v) all licenses and permits required by applicable laws and regulations for the conduct of its business or the ownership, use or operation of its properties, except where a failure to so comply with any of clauses (i) through (v) could not reasonably be expected to have a Material Adverse Effect. If any authorization, consent, approval, permit or license from any officer, agency or instrumentality of any government shall become necessary or required in order that the Borrower or its Subsidiaries may fulfill any of its obligations hereunder, the Borrower or such Subsidiary will immediately take or cause to be taken all steps necessary to obtain such authorization, consent, approval, permit or license and furnish the Agent and the Lenders with evidence thereof, except where the failure to obtain the foregoing could not reasonably be expected to have a Material Adverse Effect. The Borrower and the Pledgor shall develop and implement such programs, policies and procedures as are necessary to comply with the Patriot Act and shall promptly advise the Agent in writing in the event that the Borrower and the Pledgor shall determine that any investors in the Borrower are in violation of such act.
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§7.19 Further Covenants. The Borrower shall comply with the following covenants:
(a) The Borrower will not make or permit to be made, by voluntary or involuntary means, any transfer or encumbrance of its interest in the Pledgor, or any dilution of its interest in the Pledgor, that would result in a Change of Control; and
(b) The Borrower shall not dissolve, liquidate or otherwise wind-up its business, affairs or assets.
Nothing contained in this Agreement or the other Loan Documents shall prohibit, limit or restrict the Borrower, as the general partner of the Pledgor, from performing its obligations under the Partnership Agreement (including, without limitation, its obligations under Section 15.1 of the Partnership Agreement), provided that such obligations do not result in a Change of Control and no payment shall be made in cash (other than from proceeds of equity raised by the Borrower) in connection with any redemption obligations if an Event of Default shall be in existence.
§7.21 Borrower. The Equity Interests of the Borrower shall at all times be publicly traded on the New York Stock Exchange, or some other comparable stock exchange approved by the Agent. The Borrower shall at all times comply with all requirements of applicable laws necessary to maintain its status as a real estate investment trust under the Code, shall elect to be treated as a real estate investment trust and shall operate its business in compliance with the terms and conditions of this Agreement applicable to the Borrower and the other Loan Documents to which it is a party.
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(i) Indebtedness to Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider;
(ii) Indebtedness under the Revolving Credit Facility;
(iii) current liabilities of the Borrower or the Pledgor incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith;
(viii) To the extent constituting Indebtedness, the redemption obligations set forth in the Partnership Agreement; and
(ix) Indebtedness of the Borrower and the Pledgor under carve-out guaranties and environmental indemnifications on first mortgage or other property related loans, provided the Borrower shall use commercially reasonably efforts to have any such guaranties or environmental indemnifications be provided by the Borrower before being provided by the Pledgor.
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with or without recourse; or (e) incur or maintain any obligation to any holder of Indebtedness of any of such Persons which prohibits the creation or maintenance of any lien securing the Obligations (collectively, “Liens”); provided that notwithstanding anything to the contrary contained herein, the Borrower and the Pledgor may create or incur or suffer to be created or incurred or to exist:
(i) Liens not yet due or payable on properties to secure taxes, assessments and other governmental charges (excluding any Lien imposed pursuant to any of the provisions of ERISA) or claims for labor, material or supplies incurred in the ordinary course of business in respect of obligations not overdue by more than 60 days or are being contested in good faith and by appropriate proceedings diligently conducted with adequate reserves being maintained by Borrower in accordance with GAAP or not otherwise required to be paid or discharged under the terms of this Agreement or any of the other Loan Documents;
(ii) deposits or pledges made in connection with, or to secure payment of, workers’ compensation, unemployment insurance, old age pensions or other social security obligations;
(iii) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;
(iv) judgment liens and judgments that do not constitute an Event of Default;
(v) Liens in favor of the Agent and the Lenders under the Loan Documents to secure the Obligations and the Hedge Obligations;
(vi) Liens in favor of agent and lenders under the Revolving Credit Facility to secure the Obligations (as defined thereunder) and the Hedge Obligations (as defined thereunder); and
(vii) Liens and encumbrances on Real Estate expressly permitted under the Revolving Credit Facility.
§8.3 Restrictions on Investments.
(a) Neither the Borrower nor the Pledgor will make or permit to exist or to remain outstanding any Investment except Investments in:
(i) marketable direct or guaranteed obligations of the United States of America that mature within one (1) year from the date of purchase by the Borrower or the Pledgor;
(ii) marketable direct obligations of any of the following: Federal Home Loan Mortgage Corporation, Student Loan Marketing Association, Federal Home Loan Banks, Federal National Mortgage Association, Government National Mortgage Association, Bank for Cooperatives, Federal Intermediate Credit Banks, Federal Financing Banks, Export-Import Bank of the United States, Federal Land Banks, or any other agency or instrumentality of the United States of America;
(iii) demand deposits, certificates of deposit, bankers acceptances and time deposits of United States banks having total assets in excess of $100,000,000; provided, however, that the aggregate amount at any time so invested with any single bank having total assets of less than $1,000,000,000 will not exceed $200,000;
(iv) securities commonly known as “commercial paper” issued by a corporation organized and existing under the laws of the United States of America or any State which at the time of
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purchase are rated by Xxxxx’x Investors Service, Inc. or by Standard & Poor’s Corporation at not less than “P 1” if then rated by Xxxxx’x Investors Service, Inc., and not less than “A 1”, if then rated by Standard & Poor’s Corporation;
(v) repurchase agreements having a term not greater than ninety (90) days and fully secured by securities described in the foregoing subsection (i), (iv) and (vi) with banks described in the foregoing subsection (iii) or with financial institutions or other corporations having total assets in excess of $500,000,000;
(vi) shares of so-called “money market funds” registered with the SEC under the Investment Company Act of 1940 which maintain a level per-share value, invest principally in investments described in the foregoing subsections (i) through (iv) and have total assets in excess of $50,000,000;
(vii) the acquisition of fee interests or long-term ground lease interests by the Borrower or the Pledgor (directly or indirectly) in real estate and investments incidental thereto, any and all construction and development related thereto;
(viii) Investments by Borrower and the Pledgor (directly or indirectly) in Subsidiaries of the Pledgor;
(ix) Investments which constitute Indebtedness to the extent such Indebtedness is permitted pursuant to §8.1;
(x) Investments in preferred equity (including preferred limited partnership interests) in entities owning real estate projects;
(xi) Investments in real estate including the acquisition of entities (or interest therein) that are either publicly traded or privately held that own, manage, develop or construct commercial real estate including without limitation REITS and other real estate related entities such as private real estate funds, real estate management companies, real estate development companies and debt funds, acquisition of real estate preferred securities or preferred equity investments and other equity interests, including common stock in companies related directly or indirectly to real estate; and
(xii) real estate debt of any kind or nature whatsoever, either directly or indirectly, including but not limited to origination of and participation in commercial real estate loans, mortgage notes, collateralized mortgage notes, collateralized mortgage back securities and collateralized debt obligations (including any subordinated promissory notes secured by real estate), and mezzanine loans.
(b) The Borrower shall not permit Investments by the Borrower and/or the Pledgor or the Borrower’s Subsidiaries to be outstanding at any one time which exceed the following:
(i) Investments in unimproved land to exceed five percent (5%) of Total Asset Value;
(ii) Investments in “ground up” construction and “ground up” development projects to exceed five percent (5%) of Total Asset Value;
(iii) Investments in Real Estate consisting of mortgage loans to exceed ten percent (10%) of Total Asset Value; and
(iv) Investments in Real Estate consisting of property other than office properties to exceed five percent (5%) of Total Asset Value;
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Notwithstanding the foregoing, in no event shall the aggregate value of the Investments described in §8.3(b)(i) through (iv) exceed ten percent (10%) of Total Asset Value at any time.
For the purposes of this §8.3, the Investment of the Borrower or the Pledgor in any non-Wholly Owned Subsidiaries and Unconsolidated Affiliates will equal (without duplication) the sum of (i) such Person’s pro rata share of their Unconsolidated Affiliate’s Investment in Real Estate; plus (ii) such Person’s pro rata share of any other Investments valued at the GAAP book value.
Borrower and the Pledgor shall, except to the extent in conflict with any Property Loan Documents:
(i) in the event of any change in applicable Environmental Laws governing the assessment, release or removal of Hazardous Substances, take all reasonable action as required by such Laws, and
(ii) if any Release or disposal of Hazardous Substances which the Borrower or the Pledgor is legally obligated to contain, correct or otherwise remediate shall occur or shall have occurred on any Real Estate (including without limitation any such Release or disposal occurring prior to the acquisition or leasing of such Real Estate by the Borrower or the Pledgor), the Borrower or the Pledgor shall, after obtaining knowledge thereof, cause the performance of actions required by applicable Environmental Laws at the Real Estate in material compliance with all applicable Environmental Laws; provided, that each of the Borrower and the Pledgor shall be deemed to be in compliance with Environmental Laws for the purpose of this clause (ii) so long as it or a responsible third party with sufficient financial resources is taking
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reasonable action to remediate or manage such event to the reasonable satisfaction of the Agent or has taken and is diligently pursuing a challenge to any such alleged legal obligation through appropriate administrative or judicial proceedings.
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Management Agreement or otherwise to Advisor or any other Person that is an Affiliate of the Borrower or the Pledgor in the event that a Default or Event of Default shall have occurred and be continuing; provided, however, that such fees and other payments may continue to accrue during the continuance of any such Default or Event of Default.
§9.2 Minimum Liquidity. The Borrower’s Liquidity shall not be less than $3,000,000.
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authorized to sign, in the name and on behalf of such Person, each of the Loan Documents to which such Person is or is to become a party. The Agent shall have also received from each Credit Party a certificate, dated as of the Closing Date, signed by a duly authorized representative of such Credit Party and giving the name and specimen signature of each Authorized Officer who shall be authorized to make Loan Requests and Conversion/Continuation Requests and to give notices and to take other action on behalf of such Credit Party under the Loan Documents.
§10.6 Payment of Fees. The Borrower shall have paid to the Agent the fees payable pursuant to §4.2.
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§12. EVENTS OF DEFAULT; ACCELERATION; ETC.
(a) The Borrower shall fail to pay any principal of the Loan when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) The Borrower shall fail to pay any interest on the Loan within five (5) days of the date that the same shall become due and payable, or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within five (5) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) [Reserved];
(d) any of the Borrower or the other Credit Parties or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.1, §9.2, §9.3, or §9.4, in each case without prepaying a portion of the Loan in order to comply with such financial covenant within fifteen (15) days after written notice of a Default under this §12.1(d);
(e) any of the Borrower or the other Credit Parties shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after the Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30)-day period despite the Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of the Borrower’s receipt of the Agent’s original notice, then the Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from the Borrower’s receipt of Agent’s original notice; provided that the foregoing cure provisions shall not pertain to any default consisting of a failure to comply with §8.4, §8.7, or to any Default excluded from any provision of cure of defaults contained in any other of the Loan Documents and with respect to any defaults under §8.1, §8.2, §8.3, §8.4, §8.7 or §8.8, the thirty (30) day cure period described above shall be reduced to a period of ten (10) days and no additional cure period shall be provided with respect to such defaults;
(f) any material representation or warranty made by or on behalf of the Credit Parties or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated except to the extent it is not reasonably expected to have a Material Adverse Effect;
(g) the Borrower or the Pledgor or any Subsidiary defaults under any Recourse Indebtedness or Non-Recourse Indebtedness;
(h) any of the Borrower or other Credit Party, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they
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mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower or other Credit Party or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrower or other Credit Party or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days, one or more uninsured or unbonded final judgments against the Pledgor or the Borrower in excess of $5,000,000;
(l) any of the material Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the material Loan Documents shall be commenced by or on behalf of any of the Credit Parties, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the material Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) RESERVED;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any of the Credit Parties to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur; or
(p) then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent.
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(a) First, to the payment of, or (as the case may be) the reimbursement of the Agent for or in respect of, all reasonable out-of-pocket costs, expenses, disbursements and losses which shall have been paid, incurred or sustained by the Agent in accordance with the terms of the Loan Documents to protect or preserve the Collateral or in connection with the collection of such monies by the Agent, for the exercise, protection or enforcement by the Agent of all or any of the rights, remedies, powers and privileges of the Agent or the Lenders under this Agreement or any of the other Loan Documents or in respect of the Collateral or in support of any provision of adequate indemnity to the Agent against any taxes or liens which by law shall have, or may have, priority over the rights of the Agent or the Lenders to such monies;
(b) Second, to all other Obligations and Hedge Obligations in such order or preference as the Required Lenders shall determine; provided, that (i) distributions in respect of such other Obligations shall include, on a pari passu basis, any Agent’s fee payable pursuant to §4.2; (ii) in the event that any Lender shall have wrongfully failed or refused to make an advance under Error! Reference source not found. and such failure or refusal shall be continuing, advances made by other Lenders during the pendency of such failure or
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refusal shall be entitled to be repaid as to principal and accrued interest in priority to the other Obligations and Hedge Obligations described in this subsection (b); and (iv) Obligations owing to the Lenders with respect to each type of Obligation such as interest, principal, fees and expenses and Hedge Obligations shall be made among the Lenders, pro rata, and among the Lender Hedge Providers pro rata; and provided, further that the Required Lenders may in their discretion make proper allowance to take into account any Obligations and Hedge Obligations not then due and payable;
(c) Third, the excess, if any, shall be returned to the Borrower or to such other Persons as are entitled thereto.
§14.1 Authorization. The Agent is authorized to take such action on behalf of each of the Lenders and to exercise all such powers as are hereunder and under any of the other Loan Documents and any related documents delegated to the Agent and all other powers not specifically reserved to the Lenders, together with such powers as are reasonably incident thereto, provided that no duties or responsibilities not expressly assumed herein or therein shall be implied to have been assumed by the Agent. The obligations of the Agent hereunder are primarily administrative in nature, and nothing contained in this Agreement or any of the other Loan Documents shall be construed to constitute the Agent as a trustee for any Lender or to create an agency or fiduciary relationship. The Agent shall act as the contractual representative of the Lenders hereunder, and notwithstanding the use of the term “Agent”, it is understood and agreed that the Agent shall not have any fiduciary duties or responsibilities to any Lender by reason of this Agreement or any other Loan Document and is acting as an independent contractor, the duties and responsibilities of which are limited to those expressly set forth in this Agreement and the other Loan Documents. The Borrower and any other Person shall be entitled to conclusively rely on a statement from the Agent that it has the authority to act for and bind the Lenders pursuant to this Agreement and the other Loan Documents.
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(a) A payment by the Borrower to the Agent hereunder or under any of the other Loan Documents for the account of any Lender shall constitute a payment to such Lender. The Agent agrees to distribute to each Lender not later than one Business Day after the Agent’s receipt of good funds, determined in accordance with the Agent’s customary practices, such Lender’s pro rata share of payments received by the Agent for the account of the Lenders except as otherwise expressly provided herein or in any of the other Loan Documents. In the event that the Agent fails to distribute such amounts within one Business Day as provided above, the Agent shall pay interest on such amount at a rate per annum equal to the Federal Funds Effective Rate from time to time in effect.
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(b) If in the reasonable opinion of the Agent the distribution of any amount received by it in such capacity hereunder, under the Notes or under any of the other Loan Documents might involve it in liability, it may refrain from making such distribution until its right to make such distribution shall have been adjudicated by a court of competent jurisdiction. If a court of competent jurisdiction shall adjudge that any amount received and distributed by the Agent is to be repaid, each Person to whom any such distribution shall have been made shall either repay to the Agent its proportionate share of the amount so adjudged to be repaid or shall pay over the same in such manner and to such Persons as shall be determined by such court.
§14.10 Duties in the Case of Enforcement. In case one or more Events of Default have occurred and shall be continuing, and whether or not acceleration of the Obligations shall have occurred, the Agent
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may and, if (a) so requested by the Required Lenders and (b) the Lenders have provided to the Agent such additional indemnities and assurances in accordance with their respective Commitment Percentages against expenses and liabilities as the Agent may reasonably request, shall proceed to exercise all or any legal and equitable and other rights or remedies as it may have; provided, however, that unless and until the Agent shall have received such directions, the Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem to be in the best interests of the Lenders. Without limiting the generality of the foregoing, if the Agent reasonably determines payment is in the best interest of all Lenders, the Agent may without the approval of the Lenders pay taxes and insurance premiums and spend money for maintenance, repairs or other expenses which may be necessary to be incurred, and the Agent shall promptly thereafter notify the Lenders of such action. Each Lender shall, within thirty (30) days of request therefor, pay to the Agent its Commitment Percentage of the reasonable costs incurred by the Agent in taking any such actions hereunder to the extent that such costs shall not be promptly reimbursed to the Agent by the Borrower or out of the Collateral within such period. The Required Lenders may direct the Agent in writing as to the method and the extent of any such exercise, the Lenders hereby agreeing to indemnify and hold the Agent harmless in accordance with their respective Commitment Percentages from all liabilities incurred in respect of all actions taken or omitted in accordance with such directions, except to the extent that any of the same shall be directly caused by the Agent’s willful misconduct or gross negligence as finally determined by a court of competent jurisdiction after the expiration of all applicable appeal periods, provided that the Agent need not comply with any such direction to the extent that the Agent reasonably believes the Agent’s compliance with such direction to be unlawful in any applicable jurisdiction or commercially unreasonable under the UCC as enacted in any applicable jurisdiction.
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“Directions”) in respect of any action requested or proposed in writing pursuant to the terms hereof. To the extent that any Lender does not approve any recommendation of the Agent, such Lender shall in such notice to the Agent describe the actions that would be acceptable to such Lender. If consent is required for the requested action, any Lender’s failure to respond to a request for Directions within the required time period shall be deemed to constitute a Direction to take such requested action. In the event that any recommendation is not approved by the requisite number of Lenders and a subsequent approval on the same subject matter is requested by the Agent, then for the purposes of this paragraph each Lender shall be required to respond to a request for Directions within five (5) Business Days of receipt of such request. The Agent and each Lender shall be entitled to assume that any officer of the other Lenders delivering any notice, consent, certificate or other writing is authorized to give such notice, consent, certificate or other writing unless the Agent and such other Lenders have otherwise been notified in writing.
(a) Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Legal Requirements:
(i) That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in §27.
(ii) Any payment of principal, interest, fees or other amounts received by the Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, or otherwise, and including any amounts made available to the Agent by that Defaulting Lender pursuant to §13), shall be applied at such time or times as may be determined by the Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Agent hereunder; second, if so determined by the Agent, to be held as cash collateral for future funding obligations of that Defaulting Lender of any participation; third, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; fourth, if so determined by the Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loan under this Agreement; fifth, so long as no Default or Event of Default exists or non-defaulting Lenders have been paid in full all amounts then due, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction ; provided that if (x) such payment is a payment of the principal amount of any Loan in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loan were made at a time when the conditions set forth in §11 were satisfied or waived, such payment shall be applied solely to pay the Loan of all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loan of that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this §14.16(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) During any period that a Lender is a Defaulting Lender, the Borrower may, by giving written notice thereof to the Agent, such Defaulting Lender, and the other Lenders, demand that
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such Defaulting Lender assign its Commitment to an Eligible Assignee subject to and in accordance with the provisions of §18.1. No party hereto shall have any obligation whatsoever to initiate any such replacement or to assist in finding an Eligible Assignee. In addition, any Lender who is not a Defaulting Lender may, but shall not be obligated, in its sole discretion, to acquire the face amount of all or a portion of such Defaulting Lender’s Commitment via an assignment subject to and in accordance with the provisions of §18.1. No such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Agent in an aggregate amount sufficient with any applicable amounts held pursuant to the immediately preceding subsection (ii), upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Agent, the applicable pro rata share of Loan previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent, or any Lender hereunder (and interest accrued thereon). Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under any Legal Requirement without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(b) Defaulting Lender Cure. If the Borrower and the Agent agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that the Lender will, to the extent applicable, purchase that portion of outstanding Loan of the other Lenders or take such other actions as the Agent may determine to be necessary to cause the Loan to be held on a pro rata basis by the Lenders in accordance with their Commitment Percentages (without giving effect to §14.16(a)(iv)), whereupon that the Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to the Lender will constitute a waiver or release of any claim of any party hereunder arising from that the Lender’s having been a Defaulting Lender.
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pursuant to §18 hereof, and (e) without duplication, all out-of-pocket expenses (including reasonable attorneys’ fees and costs, and the fees and costs of appraisers, engineers, investment bankers or other experts retained by any Lender or the Agent) incurred by any Lender or the Agent in connection with (i) the enforcement of or preservation of rights under any of the Loan Documents against the Credit Parties or the administration thereof after the occurrence of a Default or Event of Default and (ii) any litigation, proceeding or dispute whether arising hereunder or otherwise, in any way related to the Agent’s or any of the Lenders’ relationship with the Borrower (provided that any attorneys’ fees and costs pursuant to this clause (e) shall be limited to those incurred by the Agent and one other counsel with respect to the Lenders as a group), (f) all reasonable fees, expenses and disbursements of the Agent incurred in connection with UCC searches and UCC filings, (g) all reasonable out-of-pocket fees, expenses and disbursements (including reasonable attorneys’ fees and costs) which may be incurred by Agent in connection with the execution and delivery of this Agreement and the other Loan Documents (without duplication of any of the items listed above), and (h) all expenses relating to the use of Intralinks, SyndTrak or any other similar system for the dissemination and sharing of documents and information in connection with the Loan in accordance with the terms of this Agreement. The covenants of this §15 shall survive the repayment of the Loan and the termination of the obligations of the Lenders hereunder.
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been relied upon by the Lenders and the Agent, notwithstanding any investigation heretofore or hereafter made by any of them, and shall survive the making by the Lenders of any of the Loan, as herein contemplated, and shall continue in full force and effect so long as any amount due under this Agreement or the Notes or any of the other Loan Documents remains outstanding. The indemnification obligations of the Borrower and the Pledgor provided herein and in the other Loan Documents shall survive the full repayment of amounts due and the termination of the obligations of the Lenders hereunder and thereunder to the extent provided herein and therein for a period of one year. All statements contained in any certificate delivered to any Lender or the Agent at any time by or on behalf of the Borrower or any of its Subsidiaries pursuant hereto or in connection with the transactions contemplated hereby shall constitute representations and warranties by such Person hereunder.
§18. ASSIGNMENT AND PARTICIPATION.
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the information contained therein in the Register. Within five (5) Business Days after receipt of notice of such assignment from the Agent, the Borrower, at its own expense, shall execute and deliver to the Agent, in exchange for each surrendered Note, a new Note (if requested by the subject Lender) to the order of such assignee in an amount equal to the amount assigned to such assignee pursuant to such Assignment and Acceptance Agreement and, if the assigning Lender has retained some portion of its obligations hereunder, a new Note to the order of the assigning Lender in an amount equal to the amount retained by it hereunder. Such new Notes shall provide that they are replacements for the surrendered Notes, shall be in an aggregate principal amount equal to the aggregate principal amount of the surrendered Notes, shall be dated the effective date of such Assignment and Acceptance Agreement and shall otherwise be in substantially the form of the assigned Notes. The surrendered Notes shall be canceled and returned to the Borrower.
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Each Notice shall be effective upon being personally delivered or upon being sent by overnight courier or upon being deposited in the United States Mail as aforesaid, or if transmitted by telegraph, telecopy, telefax or telex is permitted, upon being sent and confirmation of receipt. The time period in which a response to such Notice must be given or any action taken with respect thereto (if any), however, shall commence to run from the date of receipt if personally delivered or sent by overnight courier, or if so deposited in the United States Mail, the earlier of three (3) Business Days following such deposit or the date of receipt as disclosed on the return receipt. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given shall be deemed to be receipt of the Notice sent. By giving at least fifteen (15) days prior Notice thereof, the Borrower, a Lender or the Agent shall have the right from time to time and at any time during the term of this Agreement to change their respective addresses and each shall have the right to specify as its address any other address within the United States of America or Canada.
§21. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401. THE BORROWER, THE PLEDGOR, THE AGENT AND THE LENDERS AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT MAY BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK (INCLUDING ANY FEDERAL COURT SITTING THEREIN). THE BORROWER, THE PLEDGOR, THE AGENT AND THE LENDERS FURTHER ACCEPT, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS AND ANY RELATED APPELLATE COURT AND IRREVOCABLY (i) AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY WITH RESPECT TO THIS AGREEMENT AND (ii) WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION ANY OF THEM MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH A COURT IS AN INCONVENIENT FORUM. IN ADDITION TO THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN, THE AGENT OR ANY LENDER MAY BRING ACTION(S) FOR ENFORCEMENT ON A NONEXCLUSIVE BASIS WHERE ANY COLLATERAL OR ASSETS OF THE BORROWER OR THE PLEDGOR, EXIST AND THE BORROWER AND THE PLEDGOR, CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS. THE BORROWER AND THE PLEDGOR EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE FOREGOING CHOICE OF NEW YORK LAW WAS A MATERIAL INDUCEMENT TO THE AGENT AND THE LENDERS IN ENTERING INTO THIS AGREEMENT AND IN MAKING THE LOANS HEREUNDER.
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§26. DEALINGS WITH BORROWER. The Agent, the Lenders and their affiliates may accept deposits from, extend credit to, invest in, act as trustee under indentures of, serve as financial advisor of, and generally engage in any kind of banking, trust or other business with the Borrower and its Subsidiaries or any of their Affiliates regardless of the capacity of the Agent or the Lender hereunder. The Lenders acknowledge that, pursuant to such activities, KeyBank or its Affiliates may receive information regarding such Persons (including information that may be subject to confidentiality obligations in favor of such Person) and acknowledge that the Agent shall be under no obligation to provide such information to them.
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or the Agent; (h) the release of the Borrower, other Credit Party, or any Collateral except as otherwise provided in §5.2; (i) an amendment of the definition of the Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders or the Required Lenders to require a lesser number of the Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. No waiver shall extend to or affect any obligation not expressly waived or impair any right consequent thereon. No course of dealing or delay or omission on the part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.
§30. NO UNWRITTEN AGREEMENTS. THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. ANY ADDITIONAL TERMS OF THE AGREEMENT BETWEEN THE PARTIES ARE SET FORTH BELOW.
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any circumstances, be deemed to be a beneficiary of such conditions, any and all of which may be freely waived in whole or in part by the Agent and the Lenders at any time if in their sole discretion they deem it desirable to do so. In particular, the Agent and the Lenders make no representations and assume no obligations as to third parties concerning the quality of the construction by the Borrower or any of its Subsidiaries of any development or the absence therefrom of defects.
§36. ADDITIONAL AGREEMENTS CONCERNING OBLIGATIONS OF THE BORROWER AND THE PLEDGOR.
(a) Any right to require the Agent or the Lenders to proceed against the other of the Borrower or the Pledgor or any other Person or to proceed against or exhaust any security held by the Agent or the Lenders at any time or to pursue any other remedy in the Agent’s or any Lender’s power or under any other agreement before proceeding against the Borrower or the Pledgor hereunder or under any other Loan Document;
(b) The defense of the statute of limitations in any action hereunder or the payment or performance of any of the Obligations;
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(c) Any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of the Agent or any Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons;
(d) Any failure on the part of the Agent or any Lender to ascertain the extent or nature of any Collateral or any insurance or other rights with respect thereto, or the liability of any party liable under the Loan Documents or the obligations evidenced or secured thereby;
(e) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and all other notices of any kind (except for such notices as are specifically required to be provided to the Borrower or the Pledgor pursuant to the Loan Documents), or the lack of any thereof, including, without limiting the generality of the foregoing, notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Borrower, the Pledgor, the Agent, any Lender, any endorser or creditor of the Borrower or the Pledgor or on the part of any other Person whomsoever under this or any other instrument in connection with any obligation or evidence of indebtedness held by the Agent or any Lender;
(f) Any defense based upon an election of remedies by the Agent or any Lender, including any election to proceed by judicial or nonjudicial foreclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of the Borrower or the Pledgor or the rights of the Borrower or the Pledgor to proceed against the other for reimbursement, or both;
(g) Any right or claim of right to cause a marshaling of the assets of the Borrower;
(h) Any duty on the part of Agent or any Lender to disclose to the Borrower or the Pledgor any facts the Agent or any Lender may now or hereafter know about the Borrower or the Pledgor or the Collateral, regardless of whether the Agent or any Lender has reason to believe that any such facts materially increase the risk beyond that which the Borrower or the Pledgor intends to assume or has reason to believe that such facts are unknown to the Borrower or the Pledgor or has a reasonable opportunity to communicate such facts to the Borrower, it being understood and agreed that the Borrower and the Pledgor are fully responsible for being and keeping informed of the financial condition of the other, of the condition of the Real Estate or the Collateral and of any and all circumstances bearing on the risk that liability may be incurred by the Borrower or the Pledgor hereunder and under the other Loan Documents;
(i) Any inaccuracy of any representation made by or on behalf of the Borrower or the Pledgor contained in any Loan Document;
(j) Subject to compliance with the provisions of this Agreement, any sale or assignment of the Loan Documents, or any interest therein;
(k) Subject to compliance with the provisions of this Agreement, any sale or assignment by the Borrower, the Pledgor or any other Person, of any Collateral, or any portion thereof or interest therein, not consented to by the Agent or any Lender;
(l) Any invalidity, irregularity or unenforceability, in whole or in part, of any one or more of the Loan Documents;
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(m) Any deficiencies in the Collateral or any deficiency in the ability of the Agent or any Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligation hereby guaranteed;
(n) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of the Borrower or the Pledgor) or any other stay provided under any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Agent or any Lender to enforce any of its rights, whether now or hereafter required, which the Agent or any Lender may have against the Borrower, the Pledgor or the Collateral owned by either of them;
(o) Any modifications of the Loan Documents or any obligation of the Borrower or the Pledgor relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Code, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(p) Any release of the Borrower, the Pledgor, or of any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, the Agent’s or Lenders’ voluntary act or otherwise;
(q) Any action, occurrence, event or matter consented to by the Borrower or the Pledgor under any provision hereof, or otherwise;
(r) The dissolution or termination of existence of the Borrower or the Pledgor;
(s) Subject to compliance with the provisions of this Agreement, any renewal, extension, modification, amendment or another changes in the Obligations, including but not limited to any material alteration of the terms of payment or performance of the Obligations;
(t) Any defense of the Borrower or the Pledgor, other than that of prior performance, including without limitation, the invalidity, illegality or unenforceability of any of the Obligations;
(u) To the fullest extent permitted by law, any other legal, equitable or surety defenses whatsoever to which the Borrower or the Pledgor might otherwise be entitled, it being the intention that the obligations of the Borrower or the Pledgor hereunder are absolute, unconditional and irrevocable; or
(v) Subject to compliance with the provisions of this Agreement, any lack of notice of disposition or manner of disposition of any Collateral except for notices required by law.
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agree that upon the occurrence of an Event of Default, the Lenders and the Agent may exercise any of such rights and remedies without notice to either the Borrower or the Pledgor except as required by law or the Loan Documents and agrees that neither the Lenders nor the Agent shall be required to proceed against the other of the Borrower or the Pledgor or any other Person or to proceed against or to exhaust any other security held by the Lenders or the Agent at any time or to pursue any other remedy in the Lender’s or the Agent’s power or under any of the Loan Documents before proceeding against the Borrower, the Pledgor or their assets under the Loan Documents.
§37. ACKNOWLEDGMENT OF BENEFITS; EFFECT OF AVOIDANCE PROVISIONS.
Without limiting any other provision of §36, each Credit Party acknowledges that it has received, or will receive, significant financial and other benefits, either directly or indirectly, from the proceeds of the Loan made by the Lender to the Borrower pursuant to this Agreement; that the benefits received by such Credit Party are reasonably equivalent consideration for such Credit Party’s execution of this Agreement and the other Loan Documents to which it is a party; and that such benefits include, without limitation, the access to capital afforded to the Borrower and the Pledgor pursuant to this Agreement from which the activities of such Credit Party will be supported.
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IN WITNESS WHEREOF, each of the undersigned have caused this Agreement to be executed by its duly authorized representatives as of the date first set forth above.
BORROWER: | ||
City Office REIT, Inc., a Maryland corporation | ||
By: |
/s/ Xxxxxxx Xxxxxxx | |
Name: |
Xxxxxxx Xxxxxxx | |
Title: |
Chief Financial Officer |
[Signature Page to Credit Agreement]
PLEDGOR: | ||
CITY OFFICE REIT OPERATING PARTNERSHIP, L.P., a Maryland limited partnership, by its general partner, City Office REIT, Inc., a Maryland corporation | ||
By: |
/s/ Xxxxxxx Xxxxxxx | |
Name: |
Xxxxxxx Xxxxxxx | |
Title: |
Chief Financial Officer |
[Signature Page to Credit Agreement]
AGENT AND LENDERS: | ||
KEYBANK NATIONAL ASSOCIATION, as a Lender and as Agent | ||
By: |
/s/ Xxxxxxxxxxx X. Xxxx |
Name: |
Xxxxxxxxxxx X. Xxxx |
Title: |
Vice President |
KeyBank National Association
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxxxxxxxxx X. Xxxx
Telephone: 000 000 0000
Facsimile: 000 000 0000
[Signature Page to Credit Agreement]