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CREDIT AGREEMENT
among
BEHRINGER HARVARD REIT I, INC.,
a Maryland corporation, as Borrower
and
BEHRINGER HARVARD OPERATING PARTNERSHIP I LP, a Texas limited partnership, and
BEHRINGER HARVARD CYPRUS, LLC, a Colorado limited liability company,
as Subsidiary Guarantors
and
BANK OF AMERICA, N.A.,
as Administrative Agent
and
The Other Financial Institutions
Hereafter Made a Party Hereto
regarding a
$12,000,000 Revolving Loan
Dated as of December 30, 2004
[LOGO] BANK OF AMERICA
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TABLE OF CONTENTS
PAGE
Article 1 - THE LOAN...........................................................1
1.1 General Information and Exhibits...................................1
1.2 Purpose............................................................2
1.3 Commitment to Lend.................................................2
1.4 Commitment Fee.....................................................2
1.5 Extension Option...................................................2
1.6 Evidence of Debt...................................................4
1.7 Interest Rates.....................................................5
1.8 Prepayment.........................................................8
1.9 Consequential Loss.................................................8
1.10 Intentionally Omitted..............................................9
1.11 Taxes..............................................................9
1.12 Payment Schedule and Maturity Date................................10
1.13 Advances and Payments.............................................10
1.14 Administrative Agent Advances.....................................12
1.15 Defaulting Lender.................................................13
1.16 Several Obligations; No Liability, No Release.....................15
1.17 Replacement of Lenders............................................16
Article 2 - ADDITIONAL COVENANTS AND AGREEMENTS...............................16
2.1 Legal Existence; Name, Etc........................................16
2.2 Agreements with Affiliates........................................17
2.3 Hazard and Other Insurance........................................17
2.4 Condemnation......................................................19
2.5 Repair and Restoration............................................19
2.6 Compliance with Legal Requirements................................22
2.7 Maintenance and Repair............................................22
2.8 Operation of Property.............................................22
2.9 Estoppel Certificates.............................................23
2.10 Waiver Regarding Flood Status.....................................23
2.11 Notice to Administrative Agent....................................23
2.12 Financial Statements..............................................24
2.13 Appraisal.........................................................24
2.14 ERISA and Prohibited Transaction Taxes............................24
2.15 Environmental Matters.............................................25
2.16 Financial Covenants...............................................27
2.17 Cyprus Minerals Lease Buyout......................................27
Article 3 - REPRESENTATIONS AND WARRANTIES....................................28
3.1 Environmental Representations.....................................28
3.2 Patriot Act Due Diligence.........................................29
3.3 Existence.........................................................29
3.4 Other Agreements..................................................30
3.5 Property..........................................................30
3.6 Property Access...................................................30
3.7 Utilities.........................................................30
3.8 Flood Hazards/Wetlands............................................30
3.9 Taxes/Assessments.................................................31
3.10 Eminent Domain....................................................31
3.11 Litigation........................................................31
3.12 Accuracy..........................................................31
3.13 Foreign Ownership.................................................31
3.14 Solvency. No Loan Party is insolvent and there has been no.......32
3.15 Financial Statement/No Change.....................................32
3.16 Margin Stock; Commercial Loan.....................................32
3.17 Tax Filings.......................................................32
3.18 Full and Accurate Disclosure......................................33
Article 4 - DEFAULT AND REMEDIES..............................................33
4.1 Events of Default.................................................33
4.2 Remedies..........................................................36
Article 5 - ADMINISTRATIVE AGENT..............................................38
5.1 Appointment and Authorization of Administrative Agent.............38
5.2 Delegation of Duties..............................................39
5.3 Liability of Administrative Agent.................................39
5.4 Reliance by Administrative Agent..................................40
5.5 Notice of Default.................................................40
5.6 Credit Decision; Disclosure of Information by
Administrative Agent...........................................40
5.7 Indemnification of Administrative Agent...........................42
5.8 Administrative Agent in Individual Capacity.......................42
5.9 Successor Administrative Agent....................................42
5.10 Releases; Acquisition and Transfers of Collateral.................43
5.11 Application of Payments...........................................44
5.12 Benefit...........................................................45
5.13 Co-Agents; Lead Managers..........................................45
Article 6 - GENERAL TERMS AND CONDITIONS......................................45
6.1 Consents; Borrower's Indemnity....................................45
6.2 Miscellaneous.....................................................47
6.3 Notices...........................................................47
6.4 Payments Set Aside................................................48
6.5 Successors and Assigns............................................49
6.6 Confidentiality...................................................52
6.7 Set-off...........................................................53
6.8 Sharing of Payments...............................................53
6.9 Amendments; Survival..............................................54
6.10 Costs and Expenses................................................56
6.11 Tax Forms.........................................................56
6.12 Further Assurances................................................58
6.13 Inducement to Lenders.............................................58
6.14 Forum.............................................................58
6.15 Interpretation....................................................59
6.16 No Partnership, etc...............................................59
6.17 Records...........................................................59
6.18 Commercial Purpose................................................60
6.19 Service of Process................................................60
6.20 USA Patriot Act Notice............................................60
6.21 Entire Agreement..................................................60
6.22 Dispute Resolution................................................60
6.23 WAIVER OF JURY TRIAL..............................................63
EXHIBITS:
EXHIBIT A - Description of Property
EXHIBIT B - Definitions and Financial Statements
EXHIBIT C - Conditions Precedent to the First Advance
EXHIBIT D - INTENTIONALLY OMITTED
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F - Advances
EXHIBIT F-1 - Form of Advance Request
EXHIBIT G - Survey Requirements
EXHIBIT H - Title Insurance Requirements
EXHIBIT I - Leasing and Tenant Matters
EXHIBIT J - Insurance Requirements
EXHIBIT K - INTENTIONALLY OMITTED
EXHIBIT L - Form of Assignment and Assumption
EXHIBIT M - Form of Promissory Note
EXHIBIT N - Schedule of Lenders
CREDIT AGREEMENT
THIS CREDIT AGREEMENT ("AGREEMENT") is made by and among each lender
from time to time a party hereto (individually, a "Lender" and collectively, the
"LENDERS"), and BANK OF AMERICA, N.A., a national banking association as
Administrative Agent, and BEHRINGER HARVARD REIT I, INC., a Maryland corporation
("BORROWER"), and BEHRINGER HARVARD CYPRUS, LLC, a Colorado limited liability
company ("SPE"), and BEHRINGER HARVARD OPERATING PARTNERSHIP I LP, a Texas
limited partnership ("OPERATING PARTNERSHIP") (Operating Partnership and SPE are
sometimes also referred to herein, individually, as a Subsidiary Guarantor and,
together, as Subsidiary Guarantors), who agree as follows:
RECITALS
WHEREAS, Borrower and SPE desire that the Lenders provide a certain
revolving loan facility to Borrower, the proceeds of which will be used to
finance the acquisition by SPE of the Property and for the working capital needs
of Borrower, Operating Partnership and SPE;
WHEREAS, SPE and Operating Partnership shall guaranty the obligations of
Borrower under this Agreement; and
WHEREAS, SPE desires to grant Liens in the Property and related
Collateral in favor of Administrative Agent, for the benefit of all Lenders, to
secure its obligations under the Loan Documents.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrower, SPE, Operating Partnership,
Administrative Agent and the other Lenders agree as follows:
ARTICLE 1 - THE LOAN
1.1 GENERAL INFORMATION AND EXHIBITS. This Agreement includes the
Exhibits listed below, all of which Exhibits are attached hereto and made a part
hereof for all purposes. Each Loan Party and Lenders agree that if any Exhibit
to be attached to this Agreement contains blanks, the same shall be completed
correctly and in accordance with this Agreement prior to or at the time of the
execution and delivery thereof.
Exhibit A - Description of Property
Exhibit B - Definitions and Financial Statements
Exhibit C - Certain Conditions Precedent to the First Advance
Exhibit D - INTENTIONALLY OMITTED
Exhibit E - Form of Compliance Certificate
Exhibit F - Advances
Exhibit F-1 - Form of Advance Request
Exhibit G - Survey Requirements
Exhibit H - Title Insurance Requirements
Exhibit I - Leasing and Tenant Matters
Exhibit J - Insurance Requirements
CREDIT AGREEMENT - Page 1
Exhibit K - INTENTIONALLY OMITTED
Exhibit L - Form of Assignment and Assumption
Exhibit M - Form of Promissory Note
Exhibit N - Schedule of Lenders
The Exhibits contain other terms, provisions and conditions applicable to the
Loan. Capitalized terms used in this Agreement shall have the meanings assigned
to them in Exhibit B. This Agreement and the other Loan Documents, which must be
in form, detail and substance reasonably satisfactory to Lenders, evidence the
agreements of each Loan Party and Lenders with respect to the Loan. Each Loan
Party shall comply with all of the Loan Documents applicable to such Loan Party
and the Collateral owned by such Loan Party.
1.2 PURPOSE. The proceeds of the Loan shall be used by Borrower
and/or distributed by Borrower to either or both of SPE and Operating
Partnership for (i) the purpose of acquiring the Project located at 0000 Xxxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx ("ENGLEWOOD CO PROJECT"), as more
particularly described on EXHIBIT A attached hereto, or (ii) the working capital
needs of Borrower, Operating Partnership and SPE (including, for payment of
obligations owing from time to time by any Loan Party under any Swap
Transactions). The proceeds of the Loan shall not be used by Borrower, Operating
Partnership or SPE for any other purpose without the prior consent of
Administrative Agent, which consent may be conditioned upon the amendment of
this Agreement and the other Loan Documents in a manner reasonably required by
Administrative Agent.
1.3 COMMITMENT TO LEND. Borrower may borrow from each Lender, and
each Lender severally agrees to make Advances of its Pro Rata Share of the Loan
proceeds to Borrower in amounts at any one time outstanding not to exceed such
Lender's Pro Rata Share of the Loan and (except for Administrative Agent with
respect to Administrative Agent Advances), on the terms and subject to the
conditions set forth in this Agreement and EXHIBIT C and EXHIBIT F attached to
this Agreement. The Loan is a revolving loan. Subject to the other terms and
conditions hereof, Borrower may borrow, repay, and reborrow hereunder. Anything
contained in this Agreement to the contrary notwithstanding, the aggregate
principal amount of all Advances outstanding at any one time shall not exceed
the lesser of (i) $12,000,000, or (ii) the Borrowing Base (the "MAXIMUM
COMMITMENT AMOUNT"). From time to time during the term of this Loan,
Administrative Agent may obtain a new or updated Appraisal of the Property to
determine the current, As Is Value of the Property and to thereafter adjust the
Borrowing Base, as needed, based upon the then current As Is Value of the
Property, the cost of which appraisal shall be payable in accordance with the
provisions of SECTION 2.13 hereof.
1.4 COMMITMENT FEE. On the Closing Date, Borrower will pay to
Administrative Agent, for its own account a commitment fee in an amount set
forth in a separate agreement between Administrative Agent and Borrower, which
commitment fee may be paid by Borrower from the proceeds of the Loan.
1.5 EXTENSION OPTION. Borrower shall have the option to extend the
Maturity Date of the Loan for one period of twelve (12) consecutive months from
the initial Maturity Date, at which time the term "Maturity Date" shall mean the
Maturity Date, as extended pursuant to this SECTION 1.5 (such extension is
referred to herein as the "EXTENSION PERIOD"). The exercise of such
CREDIT AGREEMENT - Page 2
extension option shall be effective only if all of the following conditions have
been satisfied on the initial Maturity Date:
(a) There shall then exist no Default or Potential Default
under the Loan Documents.
(b) The Projected Annualized Net Income from the Property,
verified by Administrative Agent, is not less than 125% of the monthly
payments of principal and interest on the Loan which would be required
for a period of twelve (12) calendar months if the Deemed Principal
Balance of the Loan (as of the initial Maturity Date) was to be fully
amortized in consecutive level payments of principal and interest over a
period of 30 years at an interest rate per annum equivalent to the
greater of (A) 8.0% or (B) 2.50% plus the Treasury Rate which, as of the
date that is 30 days prior to the date of any such determination by
Administrative Agent hereunder, has been most recently published (or, if
for any reason that published rate is not available as of such date,
another rate determined by Administrative Agent to be comparable, in its
discretion reasonably exercised, shall be used for this purpose).
(c) The Property shall have a Loan to Value Ratio (herein so
called) of not greater than sixty percent (60%), which "LOAN TO VALUE
RATIO" shall be calculated as follows: the Deemed Principal Balance of
the Loan and accrued but unpaid interest on the Loan as of the date of
the determination by Administrative Agent of the Loan to Value Ratio
shall be divided by the most current As-Is Value of the Property. In the
event this Loan to Value Ratio is not met, Borrower may satisfy this
Loan to Value Ratio prior to the first day of the Extension Period by
either (A) making a principal payment on the Loan (in which event the
Aggregate Commitments of the Lenders hereunder shall be permanently
reduced by the amount of such principal reduction) in an amount
sufficient to bring this Loan to Value Ratio into compliance, and/or (B)
provide additional Collateral acceptable to Administrative Agent, which
shall have a value (as determined by Administrative Agent) which when
added to the As-Is Value of the Property is sufficient to satisfy this
Loan to Value Ratio.
(d) Administrative Agent shall have received current,
consolidated Financial Statements for Borrower and each Subsidiary
Guarantor (dated not earlier than sixty (60) days prior to the request
for extension) and all other Financial Statements and other information
as may be required under the Loan Documents regarding each Loan Party
and the Property, and there shall not have occurred, in the opinion of
Administrative Agent, any Material Adverse Effect in the business or
financial condition of Borrower or SPE or in the Property, from that
which existed on the Closing Date.
(e) During the Extension Period, all terms and conditions of
the Loan Documents (including but not limited to interest rates and
principal and interest payments) pertaining to the Loan shall continue
to apply.
(f) Borrower shall cause to be delivered to Administrative
Agent at Borrower's expense any available endorsements to the Title
Insurance reasonably required by Administrative Agent, subject only to
the encumbrances set forth in the Title
CREDIT AGREEMENT - Page 3
Insurance delivered to Administrative Agent on the Closing Date, current
ad valorem taxes to the extent not yet due and payable, and such other
exceptions as Administrative Agent has approved in writing.
(g) Each Loan Party shall have executed and delivered to
Administrative Agent a modification and extension agreement, providing
for the extension of the Maturity Date and the reaffirmation by each
Loan Party of its obligations under the Loan Documents to which such
Loan Party is a part, together with such other agreements, documents or
amendments to the Loan Documents as are reasonably requested by
Administrative Agent to properly document the extension, all in form and
content satisfactory to Administrative Agent.
(h) The request for extension must be made to Administrative
Agent in writing not more than ninety (90) days, and not less than
thirty (30) days, prior to the initial Maturity Date.
(i) Borrower shall have paid to Administrative Agent, for
the ratable benefit of all Lenders, as a condition to such extension an
extension fee equal to one fourth of one percent (.25%) of the Deemed
Principal Balance (as of the first day of the Extension Period).
(j) Whether or not the extension becomes effective, Borrower
shall pay all out-of-pocket costs and expenses reasonably incurred by
Administrative Agent in connection with the proposed extension (pre- and
post-closing), including, without limitation, appraisal fees, and
reasonable environmental audit and legal fees; all such costs and
expenses incurred up to the time of Administrative Agent's written
agreement to the extension shall be due and payable prior to
Administrative Agent's execution of that agreement (or if the proposed
extension does not become effective, then upon demand by Administrative
Agent), and any future failure to pay such amounts shall constitute a
default under the Loan Documents.
If all of the foregoing conditions are not satisfied in accordance with their
terms, the extension shall not be or become effective.
1.6 EVIDENCE OF DEBT. Advances of the Loan made by each Lender shall
be evidenced by one or more accounts or records maintained by such Lender and by
Administrative Agent in the ordinary course of business. The accounts or records
maintained by Administrative Agent and each Lender shall be conclusive absent
manifest error of the amount of the Loan made by the Lenders to Borrower and the
interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of Borrower
hereunder to pay any amount owing with respect to the Indebtedness. In the event
of any conflict between the accounts and records maintained by any Lender and
the accounts and records of Administrative Agent in respect of such matters, the
accounts and records of Administrative Agent shall control in the absence of
manifest error. Each Lender may attach schedules to its Note(s) and endorse
thereon the date, amount and maturity of the applicable Note and payments with
respect thereto.
CREDIT AGREEMENT - Page 4
1.7 INTEREST RATES. The Principal Debt from day to day outstanding
which is not past due shall bear interest at a rate per annum equal to the
lesser of (i) the maximum non-usurious rate of interest allowed by applicable
law or (ii) the following (computed as provided in SECTION 1.7.3 hereof) as
applicable: (a) on Base Rate Principal, on any day, the Base Rate; and (b) on
LIBOR Rate Principal, for the applicable Interest Period, the applicable LIBOR
Rate.
1.7.1 INTEREST RATE ELECTIONS.
(a) Subject to the conditions and limitations in
this Agreement, Borrower may by written notice to Administrative Agent
in the form specified by Administrative Agent (a "RATE ELECTION
NOTICE"):
(i) Elect, for a new Advance of funds, that
such Principal Debt will be Base Rate Principal, LIBOR
Rate Principal, or a combination thereof;
(ii) Elect to convert, on a Business Day, all
or part of Base Rate Principal into LIBOR Rate
Principal;
(iii) Elect to convert, on the last day of the
Interest Period applicable thereto, all or part of any
LIBOR Rate Principal into Base Rate Principal; or
(iv) Elect to continue, commencing on the
last day of the Interest Period applicable thereto, any
LIBOR Rate Principal.
If, for any reason, an effective election is not made in accordance with
the terms and conditions hereof for any Advance or for any LIBOR Rate
Principal for which the corresponding Interest Period is expiring, or to
convert Base Rate Principal to LIBOR Rate Principal, then the sums in
question will be Base Rate Principal until an effective LIBOR Rate
Election is thereafter made for such sums.
(b) Each Rate Election Notice must be received by
Administrative Agent not later than 10:00 a.m., Administrative Agent's
Time, on the applicable date as follows:
(i) With respect to an Advance of or
conversion to Base Rate Principal, one (1) Business Day
prior to the proposed date of Advance or conversion; and
(ii) With respect to an Advance of,
conversion to or continuation of LIBOR Rate Principal,
three (3) Business Days prior to the proposed date of
Advance, conversion or continuation.
Unless otherwise specified herein, no conversion from LIBOR Rate
Principal may be made other than at the end of the corresponding
Interest Period. Each Rate Election Notice shall stipulate: (A) the
amount of the Advance or of the Principal Debt to be converted or
continued; (B) the nature of the proposed Advance, conversion or
CREDIT AGREEMENT - Page 5
continuation, which shall be either Base Rate Principal, LIBOR Rate
Principal or a combination thereof, and in the case of a conversion or
continuation, the nature of the Principal Debt to be converted or
continued; and (C) in the case of LIBOR Rate Principal, the proposed
commencement date and duration of the Interest Period. All such notices
shall be irrevocable once given, and shall be deemed to have been given
only when actually received by Administrative Agent in writing in form
specified by Administrative Agent.
(c) Administrative Agent shall promptly notify
Borrower and Lenders of the interest rate applicable to each portion of
the Principal Debt other than a Base Rate Principal upon determination
of same.
1.7.2 GENERAL CONDITIONS PRECEDENT TO LIBOR RATE ELECTION. In
addition to any other conditions herein, a LIBOR Rate Election shall not
be permitted if: (a) A Default or a Potential Default has occurred and
is continuing; or
(b) After giving effect to the requested LIBOR Rate
Election, the sum of all LIBOR Rate Principal and Base Rate Principal
would exceed the Aggregate Commitments; or
(c) The requested LIBOR Rate Election would cause
more than four (4) LIBOR Rate Elections by Borrower to be in effect at
any one time; or
(d) The amount of LIBOR Rate Principal requested in
the LIBOR Rate Election is other than $1,000,000 or more; or
(e) The requested interest period does not conform
to the definition of Interest Period herein; or
(f) Any of the circumstances referred to in SECTION
1.7.4 hereof shall apply with respect to the requested LIBOR Rate
Election or the requested LIBOR Rate Principal.
1.7.3 COMPUTATIONS AND DETERMINATIONS. All computations of
interest for Base Rate Principal shall be made on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed. All
computations of LIBOR Rate Principal and other fees and interest shall
be made on the basis of a 360-day year and actual days elapsed
(including the first day but excluding the last day). Administrative
Agent shall determine each interest rate applicable to the Principal
Debt in accordance with this Agreement and its determination thereof
shall be conclusive in the absence of manifest error. The books and
records of Administrative Agent shall be prima facie evidence of all
sums owing to Lenders from time to time under this Agreement, but the
failure to record any such information shall not limit or affect the
obligations of Borrower under the Loan Documents.
1.7.4 UNAVAILABILITY OF RATE. If, with respect to any LIBOR
Rate Election, or any LIBOR Rate Principal outstanding hereunder, the
Required Lenders determine that
CREDIT AGREEMENT - Page 6
because of circumstances affecting the interbank eurodollar market no
adequate basis exists for determining the LIBOR Rate or that because of
the unavailability of dollar deposits in the London interbank eurodollar
market (either for the applicable amount and applicable Interest Periods
or in general) the LIBOR Rate will not adequately and fairly reflect the
cost to Lenders of funding or maintaining the applicable LIBOR Rate
Principal for such Interest Period, and such Lenders so notify
Administrative Agent and Borrower, then until the Required Lenders
notify Administrative Agent and Borrower that the circumstances giving
rise to such suspension no longer exist, (a) the obligation of Lenders
to permit such LIBOR Rate Election shall be suspended and (b) all
existing affected LIBOR Rate Principal shall automatically become Base
Rate Principal on the last day of the corresponding Interest Period.
Additionally, if with respect to any LIBOR Rate Election or any LIBOR
Rate Principal outstanding hereunder, any Lender determines that any
applicable Law, or any request or directive (whether or not having the
force of Law) of any Tribunal, or compliance therewith by such Lender,
prohibits or restricts or makes impossible the making or maintaining of
such LIBOR Rate Election or LIBOR Rate Principal or the charging of
interest on such LIBOR Rate Principal, and such Lender so notifies
Administrative Agent and Borrower, then until such Lender notifies
Administrative Agent and Borrower that the circumstances giving rise to
such suspension no longer exist, (a) the obligation of such Lender to
permit such LIBOR Rate Election shall be suspended and (b) all existing
affected LIBOR Rate Principal shall automatically become Base Rate
Principal, either (i) on the last day of the corresponding Interest
Period (if the Lender determines that it may lawfully continue to fund
and maintain the affected LIBOR Rate Principal to such day); or (ii)
immediately (if the Lender determines that it may not lawfully continue
to fund and maintain the affected LIBOR Rate Principal to such day) and
in such case Borrower shall pay to such Lenders the Consequential Loss,
if any, pursuant to SECTIONS 1.8 and 1.9 hereof. Each Lender agrees to
designate a different Lending Office if such designation will avoid the
need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.
1.7.5 INCREASED COST AND REDUCED RETURN. If at any time after
the Closing Date, any Lender (which shall include, for purposes of this
Section, any corporation controlling any Lender) determines that the
adoption or modification of any applicable Law regarding taxation, such
Lender's required levels of reserves, deposits, insurance or capital
(including any allocation of capital requirements or conditions), or
similar requirements, or any interpretation or administration thereof by
any Tribunal or compliance of such Lender with any of such requirements,
has or would have the effect of (a) increasing such Lender's costs
relating to the Indebtedness, or (b) reducing the yield or rate of
return of such Lender on the Indebtedness, to a level below that which
such Lender could have achieved but for the adoption or modification of
any such requirements, Borrower shall, within fifteen (15) days of any
request by such Lender, pay to such Lender such additional amounts as
(in such Lender's sole judgment, after good faith and reasonable
computation) will compensate such Lender for such increase in costs or
reduction in yield or rate of return of such Lender. No failure by such
Lender to immediately demand payment of any additional amounts payable
hereunder shall constitute a waiver of such Lender's right to demand
payment of such amounts at any subsequent time. Nothing herein contained
shall be construed or so operate as to require
CREDIT AGREEMENT - Page 7
Borrower to pay any interest, fees, costs or charges greater than is
permitted by applicable Law.
1.7.6 PAST DUE RATE. If any amount payable by Borrower under
any Loan Document is not paid when due (without regard to any applicable
grace periods), such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Past Due
Rate to the fullest extent permitted by applicable Law. Accrued and
unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable on demand, at a rate per annum (the
"PAST DUE Rate") equal to the lesser of (i) the maximum non-usurious
rate of interest allowed by applicable Law or (ii) two percent (2%) plus
the higher of (a) the Prime Rate or (b) the Adjusted LIBOR Rate.
1.8 PREPAYMENT.
(a) VOLUNTARY PREPAYMENT. Borrower may prepay the
principal balance of the Loan, in full at any time or in part from time
to time, provided that: (i) Administrative Agent shall have actually
received from Borrower prior written notice of Borrower's intent to
prepay, the amount of principal which will be prepaid (the "PREPAID
PRINCIPAL"), and the date on which the prepayment will be made; (ii)
each prepayment shall be in the amount of $1,000 or more (unless the
prepayment retires the outstanding balance of the Loan in full); and
(iii) each prepayment shall be in the amount of 100% of the Prepaid
Principal, plus accrued unpaid interest thereon to the date of
prepayment; and (iv) no portion of LIBOR Rate Principal may be prepaid
except on the last day of the Interest Period applicable thereto, unless
Borrower pays any Consequential Loss as a result thereof, in accordance
with SECTION 1.9 below. Prior to the Maturity Date, Borrower shall have
the right to borrow, repay and reborrow, from time to time, the
principal amount evidenced by the Loan, on the condition that (A) no
Default exists, (B) the unpaid principal balance due under the Loan at
any one time does not exceed the original principal amount of the Loan,
and (C) all applicable conditions as set forth in the Loan Documents
have been satisfied.
(b) MANDATORY PREPAYMENT. If for any reason the
total principal of the Loan outstanding any time exceeds the Maximum
Commitment Amount, Borrower shall, within ten (10) days after notice of
the same from Administrative Agent, prepay the Loan by an amount equal
to such excess.
1.9 CONSEQUENTIAL LOSS. Within fifteen (15) days after request by
any Lender (or at the time of any prepayment), Borrower shall pay to such Lender
such amount or amounts as will compensate such Lender for any loss, cost,
expense, penalty, claim or liability, including any loss incurred in obtaining,
prepaying, liquidating or employing deposits or other funds from third parties
(but excluding any loss of revenue, profit or yield of any Lender), as
determined by such Lender in its judgment reasonably exercised (together,
"CONSEQUENTIAL LOSS") incurred by such Lender with respect to any LIBOR Rate,
including any LIBOR Rate Election or LIBOR Rate Principal as a result of: (a)
the failure of Borrower to make payments on the date specified under this
Agreement or in any notice from Borrower to Administrative Agent; (b) the
failure of Borrower to borrow, continue or convert into LIBOR Rate Principal on
the date or in the amount specified in a notice given by Borrower to
Administrative Agent pursuant to this Agreement; (c)
CREDIT AGREEMENT - Page 8
the early termination of any Interest Period for any reason; or (d) the payment
or prepayment of any amount on a date other than the date such amount is
required or permitted to be paid or prepaid, whether voluntarily or by reason of
acceleration, including, but not limited to, acceleration upon any transfer or
conveyance of any right, title or interest in the Property giving Administrative
Agent on behalf of Lenders the right to accelerate the maturity of the Loan as
provided herein or in any Mortgage. The foregoing notwithstanding, the amounts
of the Consequential Loss shall never be less than zero or greater than is
permitted by applicable Law. If any Consequential Loss will be due, the Lender
shall deliver to Borrower a notice, in reasonable detail, as to the amount of,
reasons for and the calculation of the Consequential Loss, which notice shall be
conclusive in the absence of manifest error. Neither Administrative Agent nor
the Lenders shall have any obligation to purchase, sell and/or match funds in
connection with the funding or maintaining of the Loan or any portion thereof.
The obligations of Borrower under this Section shall survive any termination of
the Loan Documents and payment of the Loan and shall not be waived by any delay
by Administrative Agent or Lenders in seeking such compensation.
1.10 INTENTIONALLY OMITTED.
1.11 TAXES.
(a) Any and all payments by Borrower to or for the
account of Administrative Agent or any Lender under any Loan Document
shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges (except as otherwise
provided herein), and all liabilities with respect thereto, EXCLUDING,
in the case of Administrative Agent and any Lender, taxes imposed on or
measured by its net income and franchise taxes imposed on it (in lieu of
net income taxes), by the jurisdiction (or any political subdivision
thereof) under the Laws of which Administrative Agent or such Lender, as
the case may be, is organized or maintains a lending office (all such
non-excluded taxes, duties, levies, imposts, deductions, assessments,
fees, withholdings or similar charges, and liabilities being hereinafter
referred to as "TAXES"). If Borrower shall be required by any Laws to
deduct any Taxes from or in respect of any sum payable under any Loan
Document to Administrative Agent or any Lender, (i) the sum payable
shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable
under this Section), Administrative Agent and such Lender receives an
amount equal to the sum it would have received had no such deductions
been made, (ii) Borrower shall make such deductions, (iii) Borrower
shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable Laws, and (iv) within 30
days after the date of such payment, Borrower shall furnish to
Administrative Agent (which shall forward the same to such Lender) the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, Borrower agrees to pay any and all
present or future stamp, court or documentary taxes and any other excise
or property taxes or charges or similar levies which arise from any
payment made under any Loan Document or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect
to, any Loan Document (hereinafter referred to as "OTHER TAXES").
CREDIT AGREEMENT - Page 9
(c) Borrower agrees to indemnify Administrative
Agent and each Lender for the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by
Administrative Agent and such Lender and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto, in each case whether or not such Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Tribunal. A
certificate as to the amount of such payment or liability delivered to
Borrower by a Lender (with a copy to Administrative Agent), or by
Administrative Agent on its own behalf or on behalf of a Lender, shall
be conclusive absent manifest error of the amount of Taxes or Other
Taxes payable by Borrower hereunder. Payment by Borrower under this
subsection (c) shall be made within 30 days after the date the Lender or
Administrative Agent makes a demand therefor. Borrower may, to the
extent and in the manner permitted by applicable law, elect to pay such
Taxes and Other Taxes and thereafter contest the payment of such Taxes
or Other Taxes so long as Borrower diligently and in good faith contests
the same by appropriate legal proceedings and such contest does not
subject Administrative Agent or any Lender and their assets to any civil
or criminal liability or to any claims, damages or expenses.
(d) Without prejudice to the survival of any other
agreement of Borrower hereunder, the agreements and obligations of
Borrower contained in this Section shall survive the termination of the
Commitments and the payment in full of all the other Indebtedness.
1.12 PAYMENT SCHEDULE AND MATURITY DATE. The entire principal balance
of the Loan then unpaid and all accrued interest then unpaid shall be due and
payable in full on the Maturity Date. Accrued unpaid interest shall be due and
payable on the first (1st) day of the first (1st) calendar month after the
Closing Date and on the same day of each succeeding calendar month thereafter
until all principal and accrued interest owing on the Loan shall have been fully
paid and satisfied.
1.13 ADVANCES AND PAYMENTS.
(a) Following receipt of a Advance Request,
Administrative Agent shall promptly provide each Lender with a copy of
the Advance Request. Administrative Agent shall notify each Lender
telephonically (with confirmation by facsimile) or by facsimile (with
confirmation by telephone) not later than 1:00 p.m. Administrative
Agent's Time, two (2) Business Days prior to the Funding Date for LIBOR
Rate Principal Advances, and one (1) Business Day prior to the Funding
Date for all other Advances, of its Pro Rata Share of the amount
Administrative Agent has determined shall be advanced in connection
therewith ("ADVANCE AMOUNT"). Each Lender shall make the funds for its
Pro Rata Share of the Advance Amount available to Administrative Agent
not later than 11:00 a.m. Administrative Agent's Time on the Funding
Date thereof. After Administrative Agent's receipt of the Advance Amount
from Lenders, Administrative Agent shall make proceeds of the Loan in an
amount equal to the Advance Amount (or, if less, such portion of the
Advance Amount that shall have been paid to Administrative Agent by
Lenders in accordance with the terms hereof) available to Borrower on
CREDIT AGREEMENT - Page 10
the applicable Funding Date by advancing such funds to Borrower in
accordance with the provisions of EXHIBIT F.
(b) All payments by Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or
setoff. Except as otherwise expressly provided herein, all payments by
Borrower hereunder shall be made to Administrative Agent not later than
12:00 p.m. Administrative Agent's Time on the date specified herein.
Administrative Agent shall promptly distribute to each Lender, such
funds as it may be entitled to receive hereunder, (i) on or before 3:00
p.m. Administrative Agent's Time on the day Administrative Agent
receives such funds, if Administrative Agent has received such funds on
or before 12:00 p.m. (Administrative Agent's Time), or (ii) on or before
12:00 p.m. Administrative Agent's Time on the Business Day following the
day Administrative Agent receives such funds, if Administrative Agent
receives such funds after 12:00 p.m. Administrative Agent's Time.
(c) Except as otherwise provided herein, all
payments by Borrower or any Lender shall be made to Administrative Agent
at Administrative Agent's Office not later than the time for such type
of payment specified in this Agreement. All payments received after such
time shall be deemed received on the next succeeding Business Day. All
payments shall be made in immediately available funds in lawful money of
the United States of America.
(d) Upon satisfaction of any applicable terms and
conditions set forth herein, Administrative Agent shall promptly make
any amounts received in accordance with the prior subsection available
in like funds received as follows: (i) if payable to Borrower, in
accordance with EXHIBIT F, except as otherwise specified herein, and
(ii) if payable to any Lender, by wire transfer to such Lender at the
address specified in the Schedule of Lenders.
(e) Unless Borrower or any Lender has notified
Administrative Agent, prior to the date any payment is required to be
made by it to Administrative Agent, that Borrower or such Lender, as the
case may be, will not make such payment, Administrative Agent may assume
that Borrower or such Lender, as the case may be, has timely made such
payment and may (but shall not be required to do so) in reliance
thereon, make available a corresponding amount to the Person entitled
thereto. If and to the extent that such payment was not in fact made to
Administrative Agent in immediately available funds, then:
(i) if Borrower failed to make such payment,
each Lender shall forthwith on demand repay to
Administrative Agent the portion of such assumed payment
that was made available to such Lender in immediately
available funds, together with interest thereon in
respect of each day from and including the date such
amount was made available by Administrative Agent to
such Lender to the date such amount is repaid to
Administrative Agent in immediately available funds at
the Federal Funds Rate from time to time in effect; and
CREDIT AGREEMENT - Page 11
(ii) if any Lender failed to make such
payment, such Lender or, if applicable, Electing Lender
or Lenders shall forthwith on demand pay to
Administrative Agent the amount thereof in immediately
available funds, together with interest thereon for the
period from the date such amount was made available by
Administrative Agent to Borrower to the date such amount
is recovered by Administrative Agent (the "COMPENSATION
PERIOD") at a rate per annum equal to the interest rate
applicable to such amount under the Loan. If such Lender
pays such amount to Administrative Agent, then such
amount shall constitute such Lender's Pro Rata Share,
included in the applicable Advance. If such Lender does
not pay such amount forthwith upon Administrative
Agent's demand therefor, Administrative Agent may make a
demand therefor upon Borrower, and Borrower shall pay
such amount to Administrative Agent, together with
interest thereon for the Compensation Period at a rate
per annum equal to the rate of interest applicable to
such amount under the Loan. Nothing herein shall be
deemed to relieve any Lender from its obligation to
fulfill its Commitment or to prejudice any rights which
Administrative Agent or Borrower may have against any
Lender as a result of any default by such Lender
hereunder.
A notice of Administrative Agent to any Lender or to Borrower with
respect to any amount owing under this subsection shall be conclusive, absent
manifest error.
(f) If any Lender makes available to Administrative
Agent funds for any Advance to be made by such Lender as provided in the
foregoing provisions of this Section, and the funds are not advanced to
Borrower or otherwise used to satisfy any Obligations of such Lender
hereunder, Administrative Agent shall return such funds (in like funds
as received from such Lender) to such Lender, without interest.
(g) Nothing herein shall be deemed to obligate any
Lender to obtain the funds for any Advance in any particular place or
manner or to constitute a representation by any Lender that it has
obtained or will obtain the funds for any Advance in any particular
place or manner.
1.14 ADMINISTRATIVE AGENT ADVANCES.
(a) Administrative Agent is authorized, from time to
time, in Administrative Agent's sole discretion to make, authorize or
otherwise expend funds, on behalf of Lenders ("ADMINISTRATIVE AGENT
ADVANCES"), (i) to pay any costs, fees and expenses as described in
SECTION 6.10 herein, (ii) when the applicable conditions precedent set
forth in EXHIBIT C and EXHIBIT F have been satisfied to the extent
required by Administrative Agent, and (iii) when Administrative Agent
deems necessary or desirable to preserve or protect the Collateral or
any portion thereof (including those with respect to property taxes,
insurance premiums, operation, management, improvements, maintenance,
repair, sale and disposition) (A) subject to SECTION 5.5, after the
occurrence of a Default, and (B) subject to SECTION 5.10, after
acquisition of all or a portion of the Collateral by foreclosure or
otherwise.
CREDIT AGREEMENT - Page 12
(b) Administrative Agent Advances shall constitute
obligatory Advances of Lenders under this Agreement, shall be repayable
on demand and secured by the Collateral, and if unpaid by Lenders as set
forth below shall bear interest at the rate applicable to such amount
under the Loan or if no longer applicable, at the Base Rate.
Administrative Agent shall notify each Lender in writing of each
Administrative Agent Advance. Upon receipt of notice from Administrative
Agent of its making of an Administrative Agent Advance, each Lender
shall make the amount of such Lender's Pro Rata Share of the outstanding
principal amount of Administrative Agent Advance available to
Administrative Agent, in same day funds, to such account of
Administrative Agent as Administrative Agent may designate, (i) on or
before 3:00 p.m. (Administrative Agent's Time) on the day Administrative
Agent provides Lenders with notice of the making of such Administrative
Agent Advance if Administrative Agent provides such notice on or before
12:00 p.m. (Administrative Agent's Time), or (ii) on or before 12:00
p.m. on the Business Day immediately following the day Administrative
Agent provides Lenders with notice of the making of such Advance if
Administrative Agent provides notice after 12:00 p.m. (Administrative
Agent's Time).
1.15 DEFAULTING LENDER.
1.15.1 NOTICE AND CURE OF LENDER DEFAULT; ELECTION PERIOD;
ELECTING LENDERS. Administrative Agent shall notify (such notice being
referred to as the "DEFAULT NOTICE") Borrower (for Advances) and each
non-Defaulting Lender if any Lender is a Defaulting Lender. Each
non-Defaulting Lender shall have the right, but in no event or under any
circumstance the obligation, to fund such Defaulting Lender Amount,
provided that, within twenty (20) days after the date of the Default
Notice (the "ELECTION PERIOD"), such non-Defaulting Lender or Lenders
(each such Lender, an "ELECTING LENDER") irrevocably commit(s) by notice
in writing (an "ELECTION NOTICE") to Administrative Agent, the other
Lenders and Borrower to fund the Defaulting Lender Amount and to assume
the Defaulting Lender's obligations with respect to the advancing of the
entire undisbursed portion of the Defaulting Lender's principal
obligations under this Agreement (such entire undisbursed portion of the
Defaulting Lender's principal obligations under this Agreement,
including its portion of the Payment Amount that is the subject of the
default, is hereinafter referred to as the "DEFAULTING LENDER
OBLIGATION"). If Administrative Agent receives more than one Election
Notice within the Election Period, then the commitment to fund the
Defaulting Lender Amount and the Defaulting Lender Obligation shall be
apportioned pro rata among the Electing Lenders in the proportion that
the amount of each such Electing Lender's Commitment bears to the total
Commitments of all Electing Lenders. If the Defaulting Lender fails to
pay the Defaulting Lender Payment Amount within the Election Period, the
Electing Lender or Lenders, as applicable, shall be automatically
obligated to fund the Defaulting Lender Amount and Defaulting Lender
Obligation (and Defaulting Lender shall no longer be entitled to fund
such Defaulting Lender Amount and Defaulting Lender Obligation) within
three (3) Business Days after such notice to Administrative Agent for
reimbursement to Administrative Agent or payment to Borrower as
applicable. Notwithstanding anything to the contrary contained herein,
if Administrative Agent has funded the Defaulting Lender Amount,
Administrative Agent shall be entitled to reimbursement for its portion
of the Defaulting Lender Payment Amount pursuant to SECTION 5.11.
CREDIT AGREEMENT - Page 13
1.15.2 REMOVAL OF RIGHTS; INDEMNITY. Administrative Agent shall
not be obligated to transfer to a Defaulting Lender any payments made by
or on behalf of Borrower to Administrative Agent for the Defaulting
Lender's benefit; nor shall a Defaulting Lender be entitled to the
sharing of any payments hereunder or under any Note until all Defaulting
Lender Payment Amounts are paid in full. Administrative Agent shall hold
all such payments received or retained by it for the account of such
Defaulting Lender; amounts payable to a Defaulting Lender shall be paid
by Administrative Agent to reimburse Administrative Agent and any
Electing Lender pro rata for all Defaulting Lender Payment Amounts.
Solely for the purposes of voting or consenting to matters with respect
to the Loan Documents, a Defaulting Lender shall be deemed not to be a
"Lender" and such Defaulting Lender's Commitment shall be deemed to be
zero. A Defaulting Lender shall have no right to participate in any
discussions among and/or decisions by Lenders hereunder and/or under the
other Loan Documents. Further, any Defaulting Lender shall be bound by
any amendment to, or waiver of, any provision of, or any action taken or
omitted to be taken by Administrative Agent and/or the non-Defaulting
Lenders under, any Loan Document which is made subsequent to the
Defaulting Lender's becoming a Defaulting Lender. This Section shall
remain effective with respect to a Defaulting Lender until such time as
the Defaulting Lender shall no longer be in default of any of its
obligations under this Agreement by curing such default by payment of
all Defaulting Lender Payment Amounts (i) within the Election Period, or
(ii) after the Election Period with the consent of the non-Defaulting
Lenders. Such Defaulting Lender nonetheless shall be bound by any
amendment to or waiver of any provision of, or any action taken or
omitted to be taken by Administrative Agent and/or the non-Defaulting
Lenders under any Loan Document which is made subsequent to that
Lender's becoming a Defaulting Lender and prior to such cure or waiver.
The operation of this subsection or the subsection above alone shall not
be construed to increase or otherwise affect the Commitment of any
non-Defaulting Lender, or relieve or excuse the performance by Borrower
of its duties and obligations hereunder or under any of the other Loan
Documents. Furthermore, nothing contained in this Section shall release
or in any way limit a Defaulting Lender's obligations as a Lender
hereunder and/or under any other of the Loan Documents. Further, a
Defaulting Lender shall indemnify and hold harmless Administrative Agent
and each of the non-Defaulting Lenders from any claim, loss, or costs
incurred by Administrative Agent and/or the non-Defaulting Lenders as a
result of a Defaulting Lender's failure to comply with the requirements
of this Agreement, INCLUDING SUCH FAILURE CONSTITUTING IN WHOLE OR PART
ADMINISTRATIVE AGENT'S OR NONDEFAULTING LENDERS' STRICT LIABILITY, OR
COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE except to the extent such
failure constitutes willful misconduct or gross negligence on
Administrative Agent's or Defaulting Lenders' part; including, without
limitation, any and all additional losses, damages, costs and expenses
(including, without limitation, attorneys' fees) incurred by
Administrative Agent and any non-Defaulting Lender as a result of and/or
in connection with (i) a non-Defaulting Lender's acting as an Electing
Lender, (ii) any enforcement action brought by Administrative Agent
against a Defaulting Lender, and (iii) any action brought against
Administrative Agent and/or Lenders. The indemnification provided above
shall survive any termination of this Agreement.
CREDIT AGREEMENT - Page 14
1.15.3 COMMITMENT ADJUSTMENTS. In connection with the
adjustment of the amounts of the Loan Commitments of the Defaulting
Lender and Electing Lender(s) upon the expiration of the Election Period
as aforesaid, Borrower, Administrative Agent and Lenders shall execute
such modifications to the Loan Documents as shall, in the reasonable
judgment of Administrative Agent, be necessary or desirable in
connection with the adjustment of the amounts of Commitments in
accordance with the foregoing provisions of this Section. For the
purpose of voting or consenting to matters with respect to the Loan
Documents such modifications shall also reflect the removal of voting
rights of the Defaulting Lender and increase in voting rights of
Electing Lenders to the extent an Electing Lender has funded the
Defaulting Lender Amount and assumed the Defaulting Lender Obligation.
In connection with such adjustments, Defaulting Lenders shall execute
and deliver a Assignment and Assumption covering that Lender's
Commitment and otherwise comply with SECTION 6.5. If a Lender refuses to
execute and deliver such Assignment and Assumption or otherwise comply
with SECTION 6.5, such Lender hereby appoints Administrative Agent to do
so on such Lender's behalf. Administrative Agent shall distribute an
amended Schedule of Lenders, which shall thereafter be incorporated into
this Agreement, to reflect such adjustments. However, all such
Defaulting Lender Amounts and Defaulting Lender Obligation funded by
Administrative Agent or Electing Lenders shall continue to be Defaulting
Lender Amounts of the Defaulting Lender pursuant to its obligations
under this Agreement.
1.15.4 NO ELECTION. In the event that no Lender elects to
commit to fund the Defaulting Lender Amount and Defaulting Lender
Obligations within the Election Period, Administrative Agent shall, upon
the expiration of the Election Period, so notify Borrower and each
Lender.
1.16 SEVERAL OBLIGATIONS; NO LIABILITY, NO RELEASE. Notwithstanding
that certain of the Loan Documents now or hereafter may have been or will be
executed only by or in favor of Administrative Agent in its capacity as such,
and not by or in favor of Lenders, any and all obligations on the part of
Administrative Agent (if any) to make any Advances of the Loan or reimbursements
for other Payment Amounts shall constitute the several (and not joint)
obligations of the respective Lenders on a ratable basis, according to their
respective Pro Rata Shares. Except as may be specifically provided in this
Agreement, no Lenders shall have any liability for the acts of any other
Lenders. No Lenders shall be responsible to Borrower or any other Person for any
failure by any other Lenders to fulfill its obligations to made Advances of the
Loan or reimbursements for other Payment Amounts, nor to take any other action
on its behalf hereunder or in connection with the financing contemplated herein.
The failure of any Lender to pay to Administrative Agent its Pro Rata Share of a
Payment Amount shall not relieve any other Lender of any obligation hereunder to
pay to Administrative Agent its Pro Rata Share of such Payment Amounts as and
when required herein, but no Lender shall be responsible for the failure of any
other Lender to so fund its Pro Rata Share of the Payment Amount. In furtherance
of the foregoing, Lenders shall comply with their obligation to pay
Administrative Agent their Pro Rata Share of such Payment Amounts regardless of
(i) the occurrence of any Default hereunder or under any Loan Document; (ii) any
failure of consideration, absence of consideration, misrepresentation, fraud, or
any other event, failure, deficiency, breach or irregularity of any nature
whatsoever in the Loan Documents; (iii) any bankruptcy, insolvency or other like
event with regard to any Loan Party. The obligation of Lenders to pay to such
CREDIT AGREEMENT - Page 15
Payment Amounts are in all regards independent of any claims between
Administrative Agent and any Lender.
1.17 REPLACEMENT OF LENDERS. If any Lender is a Defaulting Lender or
requests payment pursuant to SECTIONS 1.7.5 or 1.11 hereof, Borrower may, upon
notice to such Lender and Administrative Agent, replace such Lender by causing
such Lender to assign its Commitment with the payment of any assignment fee by
the replaced Lender to one or more other lenders or Eligible Assignees
acceptable to Borrower and Administrative Agent. Borrower shall or shall cause
the replacement lender to (subject to the provisions of SECTION 1.14 through
1.15 providing for payment of all Defaulting Lender Payment Amounts to
Administrative Agent and/or Electing Lenders, as applicable, prior to payment of
amounts due to a Defaulting Lender), pay in full of all principal, interest,
fees and other amounts owing to such Lender through the date of replacement. Any
Lender being replaced shall execute and deliver an Assignment and Assumption
covering that Lender's Commitment and otherwise comply with SECTION 6.5. If a
Lender being replaced refuses to execute and deliver such Assignment and
Assumption or otherwise comply with SECTION 6.5, such Lender hereby appoints
Administrative Agent to do so on such Lender's behalf. Administrative Agent
shall distribute an amended Schedule of Lenders, which shall thereafter be
incorporated into this Agreement, to reflect adjustments to Lenders and their
Commitments.
ARTICLE 2 - ADDITIONAL COVENANTS AND AGREEMENTS
As an inducement to Administrative Agent and Lenders to make Advances of
the Loan to Borrower, Borrower and each Subsidiary Guarantor hereby agrees to
comply with the following covenants and agreements, as the same relates to
Borrower and each Subsidiary Guarantor and the Collateral owned by Borrower and
each Subsidiary Guarantor:
2.1 LEGAL EXISTENCE; NAME, ETC. Each Loan Party shall preserve and
keep in full force and effect its entity status, franchises, rights and
privileges under the laws of the state of its formation, and all qualifications,
licenses and permits applicable to the ownership of the Property. No Loan Party
shall wind up, liquidate, dissolve, reorganize, merge into, or consolidate with,
or convey, sell, assign, transfer, lease, or otherwise dispose of all or
substantially all of its assets. Each Loan Party shall conduct business only in
its own name and shall not change its name, identity, or organizational
structure, unless such Loan Party (a) shall have obtained the prior written
consent of Administrative Agent to such change (not to be unreasonably
withheld), and (b) shall have taken all actions necessary or requested by
Administrative Agent to file or amend any financing statement or continuation
statement to assure perfection and continuation of perfection of security
interests under the Loan Documents. Each Loan Party shall maintain its
separateness as an entity, including maintaining separate books, records, and
accounts and observing corporate and partnership formalities independent of any
other entity, shall pay its obligations with its own funds and shall not
commingle funds or assets with those of any other entity; PROVIDED, HOWEVER,
nothing herein shall be construed to prohibit any Subsidiary from participating
in Borrower's customary cash management system so long as Borrower maintains its
own bank account for receipt of funds, and appropriate record keeping is
maintained by Borrower for receipt and disbursement of all such funds between
Borrower and its Subsidiary.
CREDIT AGREEMENT - Page 16
2.2 AGREEMENTS WITH AFFILIATES. Prior to the execution of any
agreement by Borrower or any Subsidiary Guarantor with an Affiliate pertaining
to any Project, Borrower shall deliver to Administrative Agent a copy of such
agreement, which shall be satisfactory to Administrative Agent in its reasonable
discretion. If requested by Administrative Agent, such agreement shall provide
Administrative Agent the right to terminate it, without payment or any fee,
penalty or other sum, upon Administrative Agent's (or its designee's)
acquisition of such Project through foreclosure, a deed-in-lieu of foreclosure,
UCC sale or otherwise.
2.3 HAZARD AND OTHER INSURANCE.
(a) Borrower and each Subsidiary Guarantor shall
obtain and maintain, as to any Collateral owned by such Loan Party, the
insurance coverage required by EXHIBIT J and any other Loan Documents
and shall furnish to Administrative Agent promptly upon request a
certificate or certificates from the respective insurer(s) setting forth
the nature and extent of all such insurance maintained by such Loan
Party and the originals of each insurance policy (or to the extent
permitted by Administrative Agent, a certified copy of the original
policy and a satisfactory certificate of insurance) with premiums fully
paid. Any such insurance may be evidenced by blanket insurance policies
covering the Property and other property and assets, provided that each
policy otherwise complies with the requirements of the Loan Documents
and specifies the amount (if less than all) of the total coverage that
is allocated to the Property. No Loan Party shall take out separate
insurance concurrent in form or contributing in the event of loss with
that required to be maintained hereunder unless Administrative Agent is
included thereon under a standard mortgagee clause (without
contribution) reasonably acceptable to Administrative Agent, with loss
payable as provided herein. All insurance required by this Agreement
shall be primary without right of contribution from any other insurance
that may be carried by any Loan Party or Administrative Agent apart from
this Agreement or the Loan Documents and the provisions of all such
required insurance shall operate in the manner as if there were a
separate policy covering each insured. Each Loan Party shall immediately
notify Administrative Agent whenever any such separate insurance is
taken out and shall promptly deliver to Administrative Agent any policy
or certificate of such separate insurance.
(b) Not later than ten (10) days before the
expiration date of any such insurance policy, Borrower or the applicable
Loan Party shall deliver to Administrative Agent a binder or certificate
of the insurer evidencing the renewal or replacement of that policy,
with premiums fully paid together with (in the case of a renewal) a copy
of all endorsements to the policy affecting the Property and not
previously delivered to Administrative Agent, or (in the case of a
replacement) an original or certified copy of the replacement policy.
The Loan Parties shall pay all premiums on policies required hereunder
as they become due and payable and promptly deliver to Administrative
Agent evidence satisfactory to Administrative Agent of the timely
payment thereof. The Loan Parties shall at all times comply, in all
material respects, with the requirements of the insurance policies
required hereunder and of the issuers of such policies and of any board
of fire underwriters or similar body as applicable to or affecting the
Property.
CREDIT AGREEMENT - Page 17
(c) If any Loan Party fails to obtain and/or
maintain the insurance required under the Loan Documents, (i) the Loan
Parties will indemnify and hold Administrative Agent harmless from and
against any damage, loss, liability or expense resulting from all risks
that would have been covered by the required insurance if so maintained;
(ii) if any loss occurs, Administrative Agent shall nevertheless be
entitled to the benefit of all insurance covering the loss and held by
or for the Loan Parties, to the same extent as if it had been made
payable to Administrative Agent; and (iii) Administrative Agent has the
right (but not the obligation) to obtain such insurance on commercially
reasonable terms at the expense of the Loan Parties, which may at
Administrative Agent's election be coverage for Administrative Agent's
interest only, the costs and expenses so expended by Administrative
Agent shall be due and payable by on demand by the Loan Parties, a part
of the Obligations, even if in excess of the Aggregate Commitments, and
secured by the Loan Documents. If any hazard, title, or other insurer
becomes insolvent or subject to any bankruptcy, receivership or similar
proceeding, or if, in Administrative Agent's reasonable opinion set
forth in a written notice to any Loan Party the such insurer fails to
maintain a minimum A.M. Best's rating of A- / IX or better (or such
lower rating, if any, as may be reasonably acceptable to Administrative
Agent), such Loan Party shall promptly obtain and deliver to
Administrative Agent a like policy (or, if and to the extent permitted
by Administrative Agent, a certified copy of the policy or a
satisfactory certificate of insurance) issued by another insurer, which
insurer and policy meet the requirements of the Loan Documents.
(d) Upon any foreclosure of the Mortgage or transfer
of title to any Project in lieu of foreclosure, the benefits of the
insurance policies referred to in this Section as to such Project and
all proceeds payable thereunder in respect of property damage occurring
prior to the transfer of title shall thereupon vest in the purchaser at
foreclosure or other such transferee to the extent permissible under
such policies; PROVIDED THAT all liability coverage shall remain with
the Loan Parties.
(e) Administrative Agent has the right (but not the
obligation) to make proof of loss for, settle and adjust any claim
under, and receive the proceeds of, all insurance for loss of or damage
to the Property, PROVIDED, THAT, prior to a Default, any settlement or
adjustment of any claim may be negotiated by the applicable Loan Party
but if the amount involved is greater than $100,000 then the same shall
remain subject to the final approval of Administrative Agent. The
out-of-pocket costs and expenses (including reasonable attorneys' fees),
appraisal costs, and consultant fees incurred by Administrative Agent in
the adjustment and collection of insurance proceeds shall be due and
payable by the Loan Parties on demand, a part of the Obligations, even
if in excess of the Aggregate Commitments, and secured by the Loan
Documents. Administrative Agent shall not be, under any circumstances,
liable or responsible for failure to collect or exercise diligence in
the collection of any of such proceeds or for the obtaining, maintaining
or adequacy of any insurance or for failure to see to the proper
application of any amount paid over to the Loan Parties.
(f) Each Loan Party shall take all necessary action,
with Administrative Agent's consent, to obtain the benefit of any
insurance proceeds lawfully or equitably payable to such Loan Party or
Administrative Agent in connection with any
CREDIT AGREEMENT - Page 18
loss of or damage to any Project or the Property, all of which shall be
paid directly to Administrative Agent, whether or not the security for
the Loan has been impaired or otherwise affected, and applied first to
reimburse Administrative Agent for all unreimbursed out-of-pocket costs
and expenses, including reasonable attorney's fees, incurred in
connection with the collection of such proceeds and the balance of such
proceeds shall, at Administrative Agent's election, subject to SECTION
2.5 below, be (i) released to the applicable Loan Party, (ii) applied to
repair or restoration, either partly or entirely, of the Property so
damaged, on such conditions (consistent with Administrative Agent's
customary construction administration procedures) as may be reasonably
required by Administrative Agent to ensure and evidence the proper
application and payment of such proceeds and the progress of such repair
and restoration, or (iii) applied to the payment of the Obligations,
whether or not due, in such order and manner as Administrative Agent may
elect in its sole discretion. In any event, the unpaid portion of the
Obligations shall remain in full force and effect and the payment
thereof shall not be excused.
2.4 CONDEMNATION. Each Loan Party shall take all commercially
reasonable action, with Administrative Agent's consent, to obtain the benefit of
any sums lawfully or equitably payable to such Loan Party or Administrative
Agent for the condemnation of any part of the Property for public or
quasi-public use, or by virtue of private sale in lieu thereof, and any sums
which may be awarded or become payable to such Loan Party for injury or damage
to the Property, all of which shall be paid directly to Administrative Agent,
whether or not the security for the Loan has been impaired or otherwise
affected, and applied first to reimburse Administrative Agent for all
unreimbursed out-of-pocket costs and expenses, including reasonable attorney's
fees, incurred in connection with the collection of such sums and the balance of
such sums shall, at Administrative Agent's election, subject to SECTION 2.5
below, be (i) released to such Loan Party, (ii) applied to repair or
restoration, either partly or entirely, of the Property so affected, on such
conditions (consistent with Administrative Agent's customary construction
administration procedures) as may be reasonably required by Administrative Agent
to ensure and evidence the proper application and payment of such proceeds and
the progress of such repair and restoration, or (iii) applied to the payment of
the Obligations, whether or not due, in such order and manner as Administrative
Agent may elect in its sole discretion. In any event the unpaid portion of the
Obligations shall remain in full force and effect and the payment thereof shall
not be excused. Administrative Agent shall not be, under any circumstances,
liable or responsible for failure to collect or to exercise diligence in the
collection of any such sum or for failure to see to the proper application of
any amount paid over to any Loan Party. Administrative Agent is hereby
authorized, in the name of the applicable Loan Party, to execute and deliver
valid acquittance for, and to appeal from, any such award, judgment or decree;
and all out-of-pocket costs and expenses (including reasonable attorneys' fees,
appraisal costs, and consultant fees) incurred by Administrative Agent in
connection with any such condemnation shall be due and payable by the Loan
Parties on demand, a part of the Obligations, even if in excess of the Aggregate
Commitments, and secured by the Loan Documents.
2.5 REPAIR AND RESTORATION.
(a) If any of the Improvements are destroyed or
damaged by fire, explosion, windstorm, hail or any other casualty
against which insurance is required
CREDIT AGREEMENT - Page 19
under this Agreement, or in the event any Project or portion thereof is
condemned or taken under power of eminent domain (or transferred in lieu
thereof), Administrative Agent will elect (under SECTIONS 2.3 or 2.4, as
applicable) to apply the insurance proceeds or condemnation proceeds (or
the proceeds of transfer in lieu thereof) which remain after payment of
the costs of collection thereof as provided in SECTION 2.3 and 2.4
(called the "PROCEEDS" below in this Section), or so much thereof as is
required, to restoration of the property damaged as nearly as
practicable to its value, character and condition immediately prior to
such casualty (the "RESTORATION"), provided that all of the following
conditions precedent are satisfied in full not later than one hundred
and twenty (120) days after the date on which the casualty loss occurred
or title to the portion of the Property taken (or transferred in lieu
thereof) vested in the condemning authority, as the case may be:
(i) no Default or Potential Default then
exists;
(ii) Borrower has presented evidence
reasonably satisfactory to Administrative Agent and
Administrative Agent has reasonably determined, that (A)
the remaining portions of the Improvements can be
feasibly redesigned and reconstructed to such a
condition that the Improvements thereon, upon completion
of such redesign or reconstruction, can be operated
profitably again for its original intended purpose, and
(B) the net income to be generated by the remaining
Improvements and damaged improvements, when completed,
together with additional proceeds paid by the Loan
Parties to Administrative Agent will be sufficient to
satisfy the operating hurdles which are conditions
precedent to the extension of the Maturity Date of the
Loan set forth in SECTION 1.5 hereof prior to the
Maturity Date of Loan;
(iii) Tenants of the Improvements sufficient
to satisfy the requirements of clause (ii) above have
agreed in a manner satisfactory to Administrative Agent,
in its good faith business judgment, that they will
continue or extend their Leases for the terms then in
effect following the Restoration (with construction
and/or initial occupancy requirements extended by the
time necessary to complete the Restoration);
(iv) Borrower has presented evidence
reasonably satisfactory to Administrative Agent, and
Administrative Agent has reasonably determined, that the
Restoration and the completion of the Improvements in
accordance with this Agreement, can be accomplished
within a reasonable period of time and in any event
prior to the Maturity Date;
(v) Borrower has delivered or caused to be
delivered to Administrative Agent, and Administrative
Agent has approved (not to be unreasonably withheld),
complete, final plans and specifications (the
"RESTORATION PLANS"), for the work to be performed in
connection with the Restoration (hereinafter called the
"RESTORATION WORK") prepared and sealed by an architect
or Engineer with evidence reasonably satisfactory to
CREDIT AGREEMENT - Page 20
Administrative Agent of the approval of the Restoration
Plans by Tenants whose continued occupancy is needed to
satisfy the requirements of clause (ii) above and whose
spaces are affected and all Tribunals whose approval is
required;
(vi) Borrower has delivered or caused to be
delivered to Administrative Agent a signed estimate
prepared and signed by Borrower's architect or Engineer,
stating the entire cost of completing the Restoration
Work;
(vii) if Administrative Agent determines, in
the exercise of its good faith business judgment, that
(A) the estimated cost of the Restoration Work
substantially in accordance with the Restoration Plans
exceeds (B) the available Proceeds held by
Administrative Agent, then the Loan Parties shall
deposit with Administrative Agent an amount, in cash,
sufficient to cover the excess cost, which shall be held
and disbursed by Administrative Agent to the pay the
costs of such Restoration Work prior to the disbursement
of any Proceeds; and
(viii) Administrative Agent and the other
Lenders will not incur any liability to any Person as a
result of such use of the Proceeds.
If all of the foregoing conditions have not been satisfied within the
time limit specified above, then Administrative Agent may, at its
option, apply such Proceeds to the Obligations, whether or not due, in
such order and manner as Administrative Agent elects. Notwithstanding
the foregoing, if the Proceeds in respect of any casualty or any
condemnation or taking are less than $100,000, such Proceeds shall be
paid directly to Borrower for Restoration of the Property without
compliance with the foregoing conditions.
(b) To the extent that Administrative Agent elects
to apply the Proceeds to the Restoration, then disbursement of the
Proceeds for such costs of the Restoration shall be subject to and in
accordance with the provisions of this Agreement governing Advance
Requests and Advances. If Administrative Agent determines from time to
time, in its good faith business judgment, that (i) the estimated cost
of the Restoration substantially in accordance with the Restoration
Plans exceeds (ii) the available Proceeds held by Administrative Agent
plus all other funds, if any, readily available for such Restoration
(including excess funds previously contributed by such Loan Parties to
Administrative Agent for the purpose of the Restoration), then Loan
Party shall contribute such additional funds, in cash, to Administrative
Agent to cover the excess cost before Administrative Agent shall be
required to disburse any such Proceeds or other available funds for
Restoration costs. All such funds provided by Loan Party to cover excess
costs shall be used for such Restoration costs prior to disbursement of
any of the Proceeds for such costs.
(c) Any such Proceeds held by Administrative Agent
under this Section shall be held in an interest-bearing account for the
benefit of the Loan Parties
CREDIT AGREEMENT - Page 21
until disbursed for Restoration or applied against the Obligations.
Administrative Agent's receipt and custody of such Proceeds shall not
constitute a repayment of any of the Obligations, unless and until such
Proceeds are applied against the Obligations in accordance with this
Agreement. No disbursement of such Proceeds for Restoration costs shall
constitute an Advance or increase the principal amount of the Loan. If
surplus Proceeds remain after completion of the Restoration and payment
of all costs therefor, then such surplus Proceeds shall be, at
Administrative Agent's election, (i) applied against the Obligations in
such manner and order as Administrative Agent elects, or (ii) returned
to the Loan Parties.
(d) In any event, upon the occurrence of a Default
at any time, Administrative Agent may (but has no obligation to) apply
all or any portion of such Proceeds, or additional funds provided by
Loan Party, in Administrative Agent's possession to the payment of the
Obligations, whether or not due, in such order and manner as
Administrative Agent elects, and/or to the cure of any Default (or
Potential Default) without waiving the same.
2.6 COMPLIANCE WITH LEGAL REQUIREMENTS. Each Loan Party shall comply
and cause each Project owned by it to comply, with the terms, conditions,
covenants, representations and warranties of this Agreement and the other Loan
Documents, and, in all material respects, with all applicable Laws. No Loan
Party shall, by act or omission, permit any property not subject to the lien of
a Mortgage to rely on the Property or any interest therein to fulfill any
requirement of any Law. Each Loan Party shall preserve in force all requisite
zoning, utility, building, health, environmental and operating permits from the
governmental authorities having jurisdiction over the Property owned by such
Loan Party. If any Loan Party receives a written notice or claim from any Person
or Tribunal that the Property, or any use, activity, operation or maintenance
thereof or thereon, is not in compliance with any Law, such Loan Party will
promptly furnish a copy of such notice or claim to Administrative Agent.
2.7 MAINTENANCE AND REPAIR. Each Loan Party will keep the Property
owned by such Loan Party in good order, repair, operating condition and
appearance, causing all necessary repairs, renewals, replacements, additions and
improvements to be promptly made, and will not allow any of such Property to be
misused, abused or wasted or to deteriorate, reasonable wear and tear and damage
by fire or other casualty excepted. Notwithstanding the foregoing, no Loan Party
will, without the prior written consent of Administrative Agent, (i) remove from
the Property any fixtures or personal property covered by a Mortgage except such
as is replaced by such Loan Party by an article of equal suitability and value,
owned by such Loan Party, free and clear of any lien or security interest
(except that created by a Mortgage), or (ii) make any structural alteration to
such Property or any other alteration thereto which impairs the value thereof.
2.8 OPERATION OF PROPERTY. Each Loan Party will operate the Property
owned by such Loan Party in a good and workmanlike manner and, in all material
respects, in accordance with all Laws and will pay all fees or charges of any
kind in connection therewith. No Loan Party will use or occupy or conduct any
activity on, or allow the use or occupancy of or the conduct of any activity on,
any of such Property in any manner which violates, in any material respect, any
Law or which constitutes a public or private nuisance or which makes void,
CREDIT AGREEMENT - Page 22
voidable or cancelable, or increases the premium of, any insurance then in force
with respect thereto. No Loan Party will initiate or permit any zoning
reclassification of such Property or seek any variance under existing zoning
ordinances applicable to such Property or use or permit the use of such Property
in such a manner which would result in such use becoming a nonconforming use
under applicable zoning ordinances or other Laws. No Loan Party will impose any
easement, restrictive covenant or encumbrance upon the Property, execute or file
any subdivision plat or condominium declaration affecting such Property or
consent to the annexation of such Property to any municipality, without the
prior written consent of Administrative Agent. No Loan Party will do or suffer
to be done any act whereby the value of any part of the Property may be lessened
in any material respect. Each Loan Party will preserve, protect, renew, extend
and retain all material rights and privileges granted for or applicable to such
Property. Without the prior written consent of Administrative Agent or unless
noted in the Permitted Encumbrances, there shall be no drilling or exploration
for or extraction, removal or production of any mineral, hydrocarbon, gas,
natural element, compound or substance (including sand and gravel) from the
surface or subsurface of any Land regardless of the depth thereof or the method
of mining or extraction thereof. Each Loan Party will cause all debts and
liabilities of any character (including without limitation all debts and
liabilities for labor, material and equipment (including software embedded
therein) and all debts and charges for utilities servicing the Property)
incurred in the construction, maintenance, operation and development of such
Property to be promptly paid, except to the extent contested in good faith.
Reference is hereby made to EXHIBIT I of this Agreement, the provisions of which
are incorporate herein for all purposes. Each Loan Party shall comply with the
requirements of EXHIBIT I and each of the Security Documents as the same relates
to the Collateral owned by such Loan Party.
2.9 ESTOPPEL CERTIFICATES. Each Loan Party, within twenty (20) days
after request, shall furnish to Administrative Agent a written statement, duly
acknowledged, setting forth the amount due on the Loan, the terms of payment of
the Loan, the date to which interest has been paid, whether any offsets or
defenses exist against the Loan and, if any are alleged to exist, the nature
thereof in detail, and such other matters as Administrative Agent reasonably may
request.
2.10 WAIVER REGARDING FLOOD STATUS. To the extent permitted by Law,
each Loan Party hereby irrevocably waives, releases and discharges any and all
rights of action, demands and other claims of any kind or nature against
Administrative Agent and the Lenders arising from any failure of Administrative
Agent or the Lenders to comply with the National Flood Insurance Act of 1968,
the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform
Act of 1994, including any failure of Administrative Agent or the Lenders to
provide any such Loan Party with written notification within ten days prior to
the Closing Date whether any Project is in a special flood hazard area or
whether federal disaster relief assistance will be available in the event of
flood damage to any Project.
2.11 NOTICE TO ADMINISTRATIVE AGENT. Each Loan Party shall promptly
within ten (10) days after obtaining knowledge of any of the following events
affecting such Loan Party (or, if known by such Loan Party, any other Loan
Party), notify Administrative Agent in writing thereof, specifying in each case
the action such Loan Party has taken or will take with respect thereto: (a) any
material violation of any Law by such Loan Party; (b) any litigation,
arbitration or governmental investigation or proceeding instituted or threatened
against any Loan Party or the Property owned by any Loan Party, and any material
development therein (except for
CREDIT AGREEMENT - Page 23
litigation against any Loan Party, if the amount is less than $100,000, so long
as such litigation is covered by such Loan Party's insurance and the insurance
company has not refused the tender or defense or coverage); (c) any actual or
threatened condemnation of any portion of the Property, any negotiations with
respect to any such taking, or any loss of or substantial damage to the
Property; (d) any written notice received by such Loan Party with respect to the
cancellation, alteration or non-renewal of any insurance coverage maintained
with respect to any Project; (e)any lien filed against any Project or stop
notice served on such Loan Party; or (f) any permit, license, certificate or
approval with respect to any Project required to be obtained and maintained by
Law lapses or ceases to be in force and effect in any material respect.
2.12 FINANCIAL STATEMENTS. Borrower shall deliver to Administrative
Agent the Financial Statements and other statements and information at the times
and for the periods described in EXHIBIT B and any other Loan Document. Each
Loan Party will make all of its books, records and accounts available to
Administrative Agent and its representatives upon request and will permit them
to review and copy the same, at reasonable times. Each Loan Party shall,
promptly after obtaining knowledge thereof, notify Administrative Agent of any
event or condition that could reasonably be expected to have a Material Adverse
Effect in the financial condition of such Loan Party and, if known by such Loan
Party, any other Loan Party. Administrative Agent shall provide a copy of such
Financial Statements to each Lender upon receipt.
2.13 APPRAISAL. Administrative Agent may obtain from time to time, an
Appraisal of all or any part of the Property prepared in accordance with written
instructions from Administrative Agent by a third-party appraiser engaged
directly by Administrative Agent. Each such appraiser and Appraisal shall be
satisfactory to Administrative Agent (including satisfaction of applicable
regulatory requirements). The cost of any such Appraisal shall be borne by
Borrower if (A) such Appraisal is required in connection with the exercise by
Borrower of its option to extend the Maturity Date of the Loan, (B) if
Administrative Agent obtains such Appraisal after the occurrence of a Default,
(C) such required Appraisal is required by any governmental authority or laws or
regulations, or (D) Administrative Agent reasonably determines that there has
been a material decline in the value of the Property since the date of the last
appraisal of the Property). Each such appraiser and appraisal shall be
reasonably satisfactory to Administrative Agent (and comply with applicable
regulatory requirements). The costs of each such Appraisal shall be due and
payable by Borrower on demand and shall be secured by the Loan Documents. The
costs of any additional Appraisals shall be paid by the Lenders. Administrative
Agent shall provide a copy of such Appraisal to each Lender upon receipt.
2.14 ERISA AND PROHIBITED TRANSACTION TAXES. As of the date hereof
and throughout the term of this Agreement, (a) no Loan Party is or will be (i)
an "employee benefit plan", as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"); or (ii) a "plan"
within the meaning of Section 4975(e) of the Internal Revenue Code, as amended
(the "Code"); (b) no assets of any Loan Party do and will constitute "plan
assets" within the meaning of the United States Department of Labor Regulations
set forth in 29 C.F.R. ss.2510.3-101; (c) no Loan Party is and will be a
"governmental plan" within the meaning of Section 3(32) of ERISA; (d) each Loan
Party which is or will subject to state statutes regulating investments of
fiduciaries with respect to governmental plans will comply in all material
CREDIT AGREEMENT - Page 24
respects will the requirements of such state statutes; and (e) no Loan Party
shall engage in any transaction which would cause any obligation, or action
taken or to be taken, hereunder (or the exercise by Administrative Agent of any
of its or the Lenders' rights under this Agreement or the other Loan Documents)
to be a non-exempt (under a statutory or administrative class exemption)
prohibited transaction under ERISA or Section 4975 of the Code. Each Loan Party
further agrees to deliver to Administrative Agent such certifications or other
evidence of compliance with the provisions of this Section as Administrative
Agent may from time to time request.
2.15 ENVIRONMENTAL MATTERS.
(a) VIOLATIONS. No Loan Party will cause, commit,
permit or allow to continue (i) any violation, in any material respect,
of any Environmental Requirement (A) by such Loan Party or by any Person
(B) by or with respect to the Property or any use of or condition or
activity on the Property, or (ii) the attachment of any environmental
lien to the Property. No Loan Party will place, install, dispose of or
release, or cause, permit, or allow the placing, installation, disposal,
spilling, leaking, dumping or release of, any Hazardous Material or
storage tank (or similar vessel) on the Property and each Loan Party
will keep the Property free of Hazardous Material, except those that are
naturally occurring, installed by public utilities, or used in the
ordinary course of the operation or occupancy of the Property and in
accordance with applicable Environmental Requirements.
(b) NOTICE TO ADMINISTRATIVE AGENT. Each Loan Party
shall promptly deliver to Administrative Agent a copy of each written
report pertaining to the Property prepared by or on behalf of such Loan
Party pursuant to any Environmental Requirement. Each Loan Party shall
immediately advise Administrative Agent in writing of any Environmental
Claim or of the discovery of any Hazardous Material on the Property,
except those Hazardous Materials that are naturally occurring, installed
by public utilities, or used in the ordinary course of the operation or
occupancy of the Property and in accordance with applicable
Environmental Requirements, as soon as such Loan Party first obtains
knowledge thereof, including a full description of the nature and extent
of the Environmental Claim and/or Hazardous Material and all relevant
circumstances.
(c) SITE ASSESSMENTS AND INFORMATION. If
Administrative Agent shall ever have reason to believe that any
Hazardous Material affects any Project, or if any Environmental Claim is
made or threatened, or if a Default shall have occurred under the Loan
Documents, or upon the occurrence of the Release Date (hereinafter
defined) as to any Project, if requested by Administrative Agent,
Borrower shall at Borrower's expense, provide to Administrative Agent
from time to time, in each case within sixty (60) days after
Administrative Agent's request, an Environmental Assessment (hereinafter
defined) made after the date of Administrative Agent's request. As used
in this Agreement, the term "Environmental Assessment" means a report of
an environmental assessment of the Project in question of such scope
(including but not limited to the taking of soil borings and air and
groundwater samples and other above and below ground testing) as
Administrative Agent may reasonably request, by a consulting firm
reasonably acceptable to Administrative Agent and made in accordance
with Administrative Agent's established guidelines. Borrower will
cooperate with each consulting firm making any such
CREDIT AGREEMENT - Page 25
Environmental Assessment and will supply to the consulting firm, from
time to time and promptly on request, all information available to
Borrower to facilitate the completion of the Environmental Assessment.
If Borrower fails to furnish Administrative Agent within ten (10) days
after Administrative Agent's request with a copy of an agreement with a
reasonably acceptable environmental consulting firm to provide such
Environmental Assessment, or if Borrower fails to furnish to
Administrative Agent such Environmental Assessment within sixty (60)
days after Administrative Agent's request, Administrative Agent may
cause any such Environmental Assessment to be made at Borrower's expense
and risk. Administrative Agent and its designees are hereby granted
access to the Property at any time or times, upon reasonable notice
(which may be written or oral), and a license which is coupled with an
interest and irrevocable, to make or cause to be made such Environmental
Assessments. Administrative Agent may disclose to the Lenders, any loan
participants or assignees, prospective loan participants or assignees,
and regulatory authorities if required by such regulatory authorities,
any information Administrative Agent ever has about the environmental
condition or compliance of the Property, but shall be under no duty to
disclose any such information except as may be required by Law and, at
the request of Borrower, Administrative Agent shall provide Borrower
with a list of parties to whom Administrative Agent has disclosed such
information. Administrative Agent shall be under no duty to make any
Environmental Assessment of any of the Property, and in no event shall
any such Environmental Assessment by Administrative Agent be or give
rise to a representation that any Hazardous Material is or is not
present on any of the Property, or that there has been or shall be
compliance with any Environmental Requirement, nor shall any Loan Party
or any other Person be entitled to rely on any Environmental Assessment
made by Administrative Agent or at Administrative Agent's request.
Neither Administrative Agent nor any Lender owe any duty of care to
protect any Loan Party or any other Person against, or to inform them
of, any Hazardous Material or other adverse condition affecting any of
the Property.
(d) REMEDIAL ACTIONS. If any Hazardous Material is
discovered on any of the Property at any time and regardless of the
cause, (i) Borrower shall promptly at Borrower's sole risk and expense
remove, treat, and dispose of the Hazardous Material in compliance in
all material respects with all applicable Environmental Requirements and
solely under Borrower's name (or if removal is prohibited by any
Environmental Requirement, take whatever action is required by any
Environmental Requirement), in addition to taking such other action as
is necessary to have the full use and benefit of the Property as
contemplated by the Loan Documents, and provide Administrative Agent
with satisfactory evidence thereof; and (ii) if requested by
Administrative Agent, provide to Administrative Agent within thirty (30)
days of Administrative Agent's request a bond, letter of credit or other
financial assurance evidencing to Administrative Agent's reasonable
satisfaction that all necessary funds are readily available to pay the
costs and expenses of the actions required by clause (i) preceding and
to discharge any assessments or liens established against the Property
as a result of the presence of the Hazardous Material on the Property.
Within fifteen (15) days after completion of such remedial actions,
Borrower shall obtain and deliver to Administrative Agent an
Environmental Assessment of the Property made after such completion and
confirming to Administrative Agent's satisfaction that all required
remedial action as stated above has been taken and successfully
completed and that Administrative Agent's environmental consultant shall
CREDIT AGREEMENT - Page 26
have concurred with the conclusions set forth in such Environmental
Assessment and confirmed to Administrative Agent that adequate measures
have been taken by Borrower to eliminate any credible risk of further
(or a recurrence of such) contamination on the Property or any adjacent
property. Administrative Agent on behalf of Lenders may, but shall never
be obligated to, remove or cause the removal of any Hazardous Material
from the Property (or if removal is prohibited by any Environmental
Requirement, take or cause the taking of such other action as is
required by any Environmental Requirement) if Borrower fails to promptly
commence such remedial actions following discovery and thereafter
diligently prosecute the same to the satisfaction of Administrative
Agent (without limitation of the rights of Administrative Agent on
behalf of Lenders to declare a default under any of the Loan Documents
and to exercise all rights and remedies available by reason thereof);
and Administrative Agent and its designees are hereby granted access to
the Property at any time or times, upon reasonable notice (which may be
written or oral), and a license which is coupled with an interest and
irrevocable, to remove or cause such removal or to take or cause the
taking of any such other action.
2.16 FINANCIAL COVENANTS. Borrower hereby covenants and agrees with
Administrative Agent and the other Lenders as follows:
(a) MINIMUM TANGIBLE NET WORTH. As of each Test Date
during the term of the Loan, Borrower shall have a Tangible Net Worth of
not less than $50,000,000; and
(b) MINIMUM LIQUIDITY. Borrower shall have Liquid
Assets at least equal to (i) as of any Test Date to and including the
June 30, 2005 Test Date, $3,000,000, and (ii) as of any Test date from
and after the September 30, 2005 Test Date, $5,000,000; and
(c) LIABILITIES/NET WORTH. As of each Test Date
during the term of the Loan, the ratio (expressed as a percentage) of
(i) all liabilities of Borrower, determined in accordance with GAAP as
of any Test Date, to (ii) the net worth of Borrower, determined in
accordance with GAAP as of the same Test Date, shall not be less than
seventy-five percent (75%).
2.17 CYPRUS MINERALS LEASE BUYOUT. If Borrower or Subsidiary
Guarantor elects to accept a payment from Cyprus Minerals in consideration for
any termination of the Lease, in whole or in part, executed by Cyprus Minerals
and the full and complete release of Cyprus Minerals from all or part of its
obligations under such Lease and settlement of all or part of the liabilities of
Cyprus Minerals thereunder (the "BUYOUT PROCEEDS"), Borrower shall pay, or cause
such Buyout Proceeds to be paid, to Administrative Agent, for the ratable
benefit of all Lenders, to be applied by Administrative Agent to the repayment
of the Loan in such order and manner as may be specified by this Agreement.
Administrative Agent, Lenders, Borrower and the other Loan Parties agree that
all Buyout Proceeds paid by Borrower or any other Loan Party to the repayment of
the Loan may be reborrowed by Borrower solely for the purposes of payment by
Borrower or Subsidiary Guarantor of any leasing commissions or costs of
construction of tenant improvements (interior space finish out) in connection
with the execution of any new or renewal of a Lease of the Property.
Notwithstanding the foregoing, the Buyout Proceeds may be
CREDIT AGREEMENT - Page 28
advanced to Borrower to be used by Borrower or Subsidiary Guarantor for the
payment of other costs related to the Englewood CO Project if, and only if,
Administrative Agent determines that each of the following additional conditions
precedent have been satisfied, as of the date of any request for the advance of
any of the Buyout Proceeds:
(a) no less than eighty percent (80%) of the
Englewood CO Project shall be occupied by Tenants under Approved Leases;
(b) the Projected Annualized Net Income from the
Englewood CO Project, verified by Administrative Agent, shall not less
than 125% of the monthly payments of principal and interest on the Loan
which would be required for a period of twelve (12) calendar months if
the Deemed Principal Balance of the Loan (as of the date of any
determination by Administrative Agent hereunder) was to be fully
amortized in consecutive level payments of principal and interest over a
period of 30 years at an interest rate per annum equivalent to the
greater of (A) 8.0% or (B) 2.50% plus the Treasury Rate which, as of the
date that is 30 days prior to the date of any such determination by
Administrative Agent hereunder, has been most recently published (or, if
for any reason that published rate is not available as of such date,
another rate determined by Administrative Agent to be comparable, in its
discretion reasonably exercised, shall be used for this purpose); and
(c) The Loan to Value Ratio of the Englewood CO
Project is not greater than sixty percent (60%), which Loan to Value
Ratio shall be calculated based upon a current or updated Appraisal of
such Project obtained by and approved by Administrative Agent in
accordance with this Agreement.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
As an inducement to Administrative Agent and Lenders to make Advances of
the Loan to Borrower, each Loan Party hereby severally represents and warrants
as to the following, as the same relates to such Loan Party and the Collateral
owned by such Loan Party, which representations and warranties shall be true as
of the Closing Date and shall remain true on any Funding Date:
3.1 ENVIRONMENTAL REPRESENTATIONS. Each Loan Party, after due
inquiry and investigation in accordance with good commercial or customary
practices to determine whether contamination is present on the Property or
elsewhere in connection with any activity on the Property, hereby represents and
warrants to, and covenants with, Administrative Agent and Lenders, without
regard to whether they have or hereafter obtain any knowledge or report of the
environmental condition of the Property (a) during the period of such Person's
ownership of the Property, such Property has not been used for industrial or
manufacturing purposes, for landfill, dumping or other waste disposal activities
or operations, for generation, storage, use, sale, treatment, processing,
recycling or disposal of any Hazardous Material, for underground or aboveground
storage tanks, or for any other use that could reasonably be expected to give
rise to the release of any Hazardous Material on such Property; to the best of
such Person's knowledge, no such use of such Property occurred at any time prior
to the period of such Person's ownership of the Property; and to the best of
such Person's knowledge, no such use on any adjacent
CREDIT AGREEMENT - Page 28
property occurred at any time prior to the date hereof; (b) to the best of such
Person's knowledge, there is no Hazardous Material, storage tank (or similar
vessel) whether underground or otherwise, sump or well currently on the
Property, except those that are naturally occurring, installed by public
utilities or used in the ordinary course of operation or occupancy of the
Property and in accordance with applicable Environmental Requirements; (c) no
Loan Party has received notice or has knowledge of any Environmental Claim or
any completed, pending or proposed or threatened investigation or inquiry
concerning the presence or release of any Hazardous Material on any of the
Property or any adjacent property or concerning whether any condition, use or
activity on any of the Property or any adjacent property is in violation of any
Environmental Requirement; (d) the present conditions, uses and activities on
the Property do not violate any Environmental Requirement and the use of the
Property which the owner of such Property (and each Tenant, if any) makes and
intends to make of the Property complies and will comply with, in all material
respects, all applicable Environmental Requirements; (e) the Property does not
appear on and to the best of such Person's knowledge has never been on the
National Priorities List, any federal or state "superfund" or "superlien" list,
or any other list or database of properties maintained by any local, state or
federal agency or department showing properties which are known to contain or
which are suspected of containing a Hazardous Material; (f) no Loan Party has
ever applied for and been denied environmental impairment liability insurance
coverage relating to the Property; and (g) no Loan Party has obtained or is
required to obtain any permit or authorization to construct, occupy, operate,
use or conduct any activity on any of the Property by reason of any
Environmental Requirement.
3.2 PATRIOT ACT DUE DILIGENCE. No Loan Party and no Affiliate of any
Loan Party is named on any list of Specially Designated Nationals or known or
suspected terrorists that has been generated by the Office of Foreign Assets
Control ("OFAC"), nor are any of them organized in, or citizens or residents of
any country that is subject to embargo or trade sanctions enforced by OFAC
(collectively, "RESTRICTED PARTIES"). Each Loan Party has conducted due
diligence with respect to each of its Subsidiaries and Affiliates, such that the
Loan Party has formed a reasonable belief that it knows the true identity of
each of its Subsidiaries and Affiliates. To the best knowledge of each Loan
Party, no funds of any Restricted Parties used in connection with this
transaction were derived from illegal or suspicious activities.
3.3 EXISTENCE. Borrower is a corporation duly formed, validly
existing and in good standing under the laws of the State of Maryland. Borrower
is in good standing and is authorized to transact business under the laws of the
states in which its respective property is located. The Loan Documents each has
been duly authorized, executed and delivered by Borrower and each constitutes
the duly authorized, valid and legally binding obligation of Borrower,
enforceable against Borrower in accordance with their respective terms. Each
Subsidiary Guarantor is a corporation, limited liability company or partnership,
as applicable, duly formed, validly existing and in good standing under the laws
of the state of its incorporation or organization. Each Subsidiary Guarantor is
in good standing and is authorized to transact business under the laws of the
states in which its respective property is located. The Loan Documents each has
been duly authorized, executed and delivered by such Subsidiary Guarantor and
each constitutes the duly authorized, valid and legally binding obligation of
such Subsidiary Guarantor, enforceable against such Subsidiary Guarantor in
accordance with their respective terms.
CREDIT AGREEMENT - Page 29
3.4 OTHER AGREEMENTS. No Loan Party is in default, in any material
respect, under any material contract, agreement or commitment to which it is a
party. The execution, delivery and compliance with the terms and provisions of
this Agreement and the other Loan Documents will not (i) to such Loan Party's
knowledge, violate, in any material respect, any provisions of Law or any
applicable regulation, order or other decree of any Tribunal, or (ii) conflict
or be inconsistent with, or result in any default under, any material contract,
agreement or commitment to which such Loan Party is bound. No Loan Party is a
party to any agreement or instrument or subject to any court order, injunction,
permit, or restriction which would likely materially and adversely affect the
Property or the business, operations, or financial condition of any Loan Party.
3.5 PROPERTY. The Loan Parties own fee simple title to the Property
free and clear of all liens, claims, encumbrances, covenants, conditions and
restrictions, security interests and claims of others, except only the Permitted
Encumbrances. To the best knowledge of each Loan Party who is the record owner
of a Project, such Project is in compliance, in all material respects, with all
zoning requirements, building codes, subdivision improvement agreements, and all
covenants, conditions and restrictions of record. Except as may be disclosed in
the Title Insurance delivered to Administrative Agent as of the Closing Date,
the zoning and subdivision approval of the Property and the right and ability to
use or operate the Improvements are not in any way dependent on or related to
any real estate other than the Property and public property or rights of way. To
the best knowledge of each Loan Party who is the record owner of a Project,
there are no, nor are there any alleged or asserted, material violations of law,
regulations, ordinances, codes, permits, licenses, declarations, covenants,
conditions, or restrictions of record, or other agreements relating to such
Project, or any part thereof. Each such record owner of a Project has all
requisite licenses, permits, franchises, qualifications, certificates of
occupancy or other governmental authorizations to own and lease such Project and
carry on its business, and to the best knowledge of each Loan Party who is the
record owner of a Project, such Project is in compliance in all material
respects with all applicable legal requirements and is free of structural
defects, and, to the best knowledge of each Loan Party who is the record owner
of such Project, after due inquiry, all building systems contained therein are
in good working order, subject to ordinary wear and tear. No Project
constitutes, in whole or in part, a legally non-conforming use under applicable
legal requirements.
3.6 PROPERTY ACCESS. Each Property is accessible through fully
improved and dedicated roads accepted for maintenance and public use by the
public authority having jurisdiction.
3.7 UTILITIES. All utility services necessary and sufficient for the
use or operation of the Property is available including water, storm, sanitary
sewer, gas, electric and telephone facilities. Except as expressly shown on any
Survey of the Property to the contrary, such utilities are located in the public
right-of-way abutting the Property, and all such utilities are connected so as
to serve the Property without passing over other property, except to the extent
such other property is subject to a perpetual easement for such utility
benefiting such Property.
3.8 FLOOD HAZARDS/WETLANDS. Except as disclosed on the Survey of the
Property, no Property is situated in an area designated as having special flood
hazards as defined by the Flood
CREDIT AGREEMENT - Page 30
Disaster Protection Act of 1973, as amended, or as a wetlands by any
governmental entity having jurisdiction over the Property.
3.9 TAXES/ASSESSMENTS. Each Project is comprised of one or more
parcels, each of which constitutes a separate tax lot and none of which
constitutes a portion of any other tax lot. There are no unpaid or outstanding
real estate or other taxes or assessments on or against the Property or any part
thereof, except general real estate taxes not yet delinquent. Copies of the
current general real estate tax bills with respect to each Project have been
delivered to Administrative Agent. Said bills cover each Project in its entirety
and do not cover or apply to any other property. There is no pending or, to the
best knowledge of each Loan Party who is the record owner of a Project,
contemplated action pursuant to which any special assessment may be levied
against any portion of the Property.
3.10 EMINENT DOMAIN. As of the date hereof, there is no eminent
domain or condemnation proceeding pending or, to the best knowledge of each Loan
Party, threatened, relating to any Project.
3.11 LITIGATION. There is no pending, or to the best knowledge of
each Loan Party, threatened litigation, arbitration or other proceeding or
governmental investigation (herein, "LITIGATION") involving or affecting the
Property or the validity, enforceability, or priority of any of the Loan
Documents, or against any Loan Party which constitutes a Material Adverse
Effect. If any such Litigation is threatened or commenced (a) that seeks to
enjoin, prevent, or declare invalid or unlawful any Loan Party's occupancy, use
or operation of the Improvements; (b) that endangers, questions or attacks the
title to any part of the Property or the validity, enforceability, or priority
of any Loan Document; (c) that seeks to levy upon or seize any part of the
Property; (d) for any condemnation or taking of any part of or interest in the
Property; (e) regarding any claimed damage, default, or diminution or offset
against Rent; (f) with respect to any claimed personal injury, death or property
damage on or about the Property; or (g) which constitutes a Material Adverse
Effect; then the Loan Parties shall promptly and vigorously contest such
Litigation in good faith, resist the entry of any temporary or permanent
injunction, and seek the stay of any such injunction that may be entered.
3.12 ACCURACY. Neither this Agreement nor any document, financial
statement, credit information, certificate or statement furnished to
Administrative Agent or the Lenders by any Loan Party contains any untrue
statement of a material fact or omits to state a material fact which would
affect any Advance or Lenders' decision to make any Advance hereunder.
3.13 FOREIGN OWNERSHIP. No Loan Party nor any partner in any Loan
Party is or will be, and no legal or beneficial interest of a partner in any
Loan Party is or will be held, directly or indirectly, by a "foreign
corporation", "foreign partnership", "foreign trust", "foreign estate", "foreign
person", "affiliate" of a "foreign person" or a "United States intermediary" of
a "foreign person" within the meaning of Internal Revenue Code Sections 897 and
1445, the Foreign Investments in Real Property Tax Act of 1980, the
International Foreign Investment Survey Act of 1976, the Agricultural Foreign
Investment Disclosure Act of 1978, or the regulations promulgated pursuant to
such Acts or any amendments to such Acts.
CREDIT AGREEMENT - Page 31
3.14 SOLVENCY. No Loan Party is insolvent and there has been no: (i)
assignment made for the benefit of the creditors of any of them; (ii)
appointment of a receiver for any of them or for the property of any of them; or
(iii) bankruptcy, reorganization, or liquidation proceeding instituted by or
against any of them. No Loan Party is contemplating either the filing of a
petition by it under state or federal bankruptcy or insolvency laws or the
liquidation of all or a major portion of its assets or property, and no Loan
Party has knowledge of any Person contemplating the filing of any such petition
against it. The fair saleable value of each Loan Party's assets exceeds and
will, immediately following the making of the Loan, exceed such Loan Party's
total liabilities, including, without limitation, subordinated, unliquidated,
disputed and contingent liabilities. The fair saleable value of each Loan
Party's assets is and will, immediately following the making of the Loan, be
greater than each such Loan Party's probable liabilities, including the maximum
amount of its contingent liabilities on its debts as such debts become absolute
and matured. The assets of each Loan Party do not and, immediately following the
making of the Loan will not, constitute unreasonably small capital to carry out
its business as conducted or as proposed to be conducted. No Loan Party intends
to, nor believes that it will, incur debts and liabilities (including contingent
liabilities and other commitments) beyond its ability to pay such debts as they
mature (taking into account the timing and amounts of cash to be received by
such Loan Party and the amounts to be payable on or in respect of obligations of
such Loan Party).
3.15 FINANCIAL STATEMENTS; NO CHANGE. Borrower has heretofore
delivered to Administrative Agent copies of the most current, consolidated
Financial Statements of Borrower and its Subsidiaries. Said Financial Statements
were prepared on a basis consistent with that of preceding years, and all of
such Financial Statements present fairly, in all material respects, the
financial condition of Borrower and its Subsidiaries as of the dates in question
and the results of operations for the periods indicated. Since the dates of such
Financial Statements, there has been no material adverse change in the business
or financial condition of Borrower or its Subsidiaries. No Loan Party has any
material contingent liabilities not provided for or disclosed in said Financial
Statements.
3.16 MARGIN STOCK; COMMERCIAL LOAN. No proceeds of the Loan shall be
used by any Loan Party in any manner that might cause the borrowing or the
application of such proceeds to violate Regulations U, T or X or any other
regulation of the Board of Governors of the Federal Reserve System or to violate
the Securities Act of 1933 or the Securities Exchange Act of 1934. The Loan is
solely for business and/or investment purposes, and is not intended for
personal, family, household or agricultural purposes. The proceeds of the Loan
shall be used for commercial purposes and each Loan Party hereby stipulates that
the Loan shall be construed for all purposes as a commercial loan.
3.17 TAX FILINGS. Each Loan Party has filed (or have obtained
effective extensions for filing) all federal, state and local tax returns
required to be filed and have paid or made adequate provision for the payment of
all federal, state and local taxes, charges and assessments payable by such Loan
Party. SPE and Operating Partnership are disregarded entities for federal income
tax purposes and, therefore, neither entity has requested or been issued a
federal tax identification number. If SPE or Operating Partnership shall ever
request and obtain a federal tax identification number for any reason, such
entity shall promptly deliver to Administrative
CREDIT AGREEMENT - Page 32
Agent a duly executed IRS Form W-9 certifying to Administrative Agent the
federal tax identification number for such entity.
3.18 FULL AND ACCURATE DISCLOSURE. No statement of fact made by or on
behalf of any Loan Party in this Agreement or in any of the other Loan Documents
contains any untrue statement of a material fact or omits to state any material
fact necessary to make statements contained herein or therein not misleading.
There is no fact presently known to any Loan Party which has not been disclosed
to Administrative Agent which materially and adversely affects, nor as far as
each such Loan Party can foresee, might materially and adversely affect, the
Property or the business operations or financial condition of each Loan Party.
ARTICLE 4 - DEFAULT AND REMEDIES
4.1 EVENTS OF DEFAULT. The occurrence of any one of the following
shall be a default under this Agreement ("DEFAULT"):
(a) FAILURE TO PAY INDEBTEDNESS. Any (i) principal
or interest of the Loan is not paid when due on the Maturity Date, or in
the case of any of the principal or interest on the Loan due on a date
other than the Maturity Date, any of such principal or interest is not
paid within five (5) days after the same became due, or (ii) other
Indebtedness (other than principal or interest on the Loan) is not paid
within thirty (30) days after the same became due.
(b) NONPERFORMANCE OF COVENANTS. Any covenant,
agreement or condition herein or in any other Loan Document (other than
covenants otherwise addressed in another paragraph of this SECTION 4.1,
such as covenants to pay the Indebtedness) is not fully and timely
performed, observed or kept, and such failure is not cured within the
applicable notice and cure period (if any) provided for herein or in
such other Loan Document or, if this Agreement or such other Loan
Document does not provide for such a notice or grace period, within
thirty (30) days after written notice and demand by Administrative Agent
for the performance of such covenant, agreement or condition (or if such
failure cannot be cured within that original 30-day period and Borrower
delivers written notice to Administrative Agent promptly within that
original 30-day period of Borrower's or Subsidiary Guarantor's intention
and proposed steps to cure the failure with due diligence, promptly
institutes curative action within that original 30-day period and
diligently pursues same, Borrower and Subsidiary Guarantor shall have
such additional period of time, not exceeding sixty (60) days next
following the end of the original 30-day period, as shall be necessary
to effect the cure); PROVIDED, HOWEVER, that there shall be no
obligation of Administrative Agent to give any such notice and no right
of Borrower or Subsidiary Guarantor to cure under this paragraph if the
event or condition is intentionally caused by Borrower or Subsidiary
Guarantor.
(c) DEFAULT UNDER OTHER LOAN DOCUMENTS. There occurs
(i) any Default under any other Loan Document, or (ii) an Early
Termination Date (as defined in any Master Agreement) resulting from (A)
any event of default under such Master Agreement as to which Borrower or
any Subsidiary Guarantor is the Defaulting Party (as defined in such
Master Agreement), or (B) any Termination Event (as so defined) under
CREDIT AGREEMENT - Page 33
such Master Agreement as to which Borrower or any Subsidiary Guarantor
is an Affected Party (as so defined) and, in either event, Borrower or
such Subsidiary Guarantor fails to pay such the amounts due under such
Swap Transactions within thirty (30) days after the same became due (it
being the understanding of Borrower and Lenders that, subject to the
terms and provisions of this Agreement, the proceeds of the Loan may be
used by Borrower to pay amounts which may become due under any Swap
Transactions).
(d) REPRESENTATIONS. Any statement, representation
or warranty in any of the Loan Documents or in any Financial Statement
heretofore or hereafter delivered to Administrative Agent in connection
with the Loan is false, misleading or erroneous in any material respect
on the Closing Date or on the date as of which such statement,
representation or warranty is made.
(e) BANKRUPTCY OR INSOLVENCY. Borrower or any
Subsidiary Guarantor:
(i) (A) Executes an assignment for the
benefit of creditors, or takes any action in furtherance
thereof; or (B) admits in writing its inability to pay,
or fails to pay, its debts generally as they become due;
or (C) as a debtor, files a petition, case, proceeding
or other action pursuant to, or voluntarily seeks the
benefit or benefits of and Debtor Relief Laws, or takes
any action in furtherance thereof; or (D) seeks the
appointment of a receiver, trustee, custodian or
liquidator of the Property or any part thereof or of any
significant portion of its other property; or
(ii) Suffers the filing of a petition, case,
proceeding or other action against it as a debtor under
any Debtor Relief Laws or seeking appointment of a
receiver, trustee, custodian or liquidator of the
Property or any part thereof or of any significant
portion of its other property, and (A) admits,
acquiesces in or fails to contest diligently the
material allegations thereof, or (B) the petition, case,
proceeding or other action results in entry of any order
for relief or order granting relief sought against it,
or (C) in a proceeding under Debtor Relief Laws, the
case is converted from one chapter to another, or (D)
fails to have the petition, case, proceeding or other
action permanently dismissed or discharged on or before
the earlier of trial thereon or one hundred twenty (120)
days next following the date of its filing; or
(iii) Conceals, removes, or permits to be
concealed or removed, any part of its property, with
intent to hinder, delay or defraud its creditors or any
of them, or makes or suffers a transfer of any of its
property which is fraudulent under any bankruptcy,
fraudulent conveyance or similar law; or suffers or
permits, while insolvent, any creditor to obtain a lien
(other than as described in subparagraph (iv) below)
upon any of its property through legal proceedings which
are not vacated and such lien discharged prior to
enforcement thereof and in any event within sixty (60)
days from the date thereof; or
CREDIT AGREEMENT - Page 34
(iv) Fails to have discharged within a period
of ten (10) days any attachment, sequestration, or
similar writ levied upon the Property; or
(v) Fails to pay within thirty (30) days any
final (unappealable) money judgment against it.
(f) TRANSFER OF THE PROPERTY. Any sale, conveyance,
assignment, pledge, or transfer of all or any part of any Project or any
interest therein, voluntarily or involuntarily, whether by operation of
law or otherwise, except sales or transfers of items of the Accessories
(as defined in the Mortgage) which have become obsolete or worn beyond
practical use and which have been replaced by adequate substitutes,
owned by the applicable Loan Party, having a value equal to or greater
than the replaced items when new. Administrative Agent may, in its sole
discretion, waive a default under this paragraph, but it shall have no
obligation to do so, and any waiver may be conditioned upon such one or
more of the following (if any) which Administrative Agent may require:
the grantee's integrity, reputation, character, creditworthiness and
management ability being satisfactory to Administrative Agent in its
sole judgment and grantee executing, prior to such sale or transfer, a
written assumption agreement containing such terms as Administrative
Agent may require, a principal paydown on the Loan, an increase in the
rate of interest payable under the Loan, a transfer fee, a modification
of the term of the Loan, and any other modification of the Loan
Documents which Administrative Agent may require.
(g) TRANSFER OF OWNERSHIP OF SUBSIDIARY GUARANTORS.
The sale, pledge, encumbrance, assignment or transfer, voluntarily or
involuntarily, whether by operation of law or otherwise, of any interest
in any Subsidiary Guarantor, without the prior written consent of
Administrative Agent (including, without limitation, the withdrawal from
or admission into such Subsidiary Guarantor of any member or joint
venturer).
(h) GRANT OF EASEMENT, ETC. Without the prior
written consent of Administrative Agent, any Loan Party grants any
easement or dedication, files any plat, condominium declaration, or
restriction, or otherwise encumbers in any material respect any Project,
or seeks or permits any zoning reclassification or variance, unless such
action is expressly permitted by the Loan Documents or does not affect a
Project.
(i) ABANDONMENT. Any owner of any portion of any
Project abandons such Project.
(j) DEFAULT UNDER OTHER LIEN. A default or event of
default occurs under any lien, security interest or assignment covering
any Project or any part thereof (whether or not Administrative Agent has
consented, and without hereby implying Administrative Agent's consent,
to any such lien, security interest or assignment not created
hereunder), or the holder of any such lien, security interest or
assignment declares a default or institutes foreclosure or other
proceedings for the enforcement of its remedies thereunder.
CREDIT AGREEMENT - Page 35
(k) DESTRUCTION. Any Project is so demolished,
destroyed or damaged that, in the reasonable opinion of Administrative
Agent, it cannot be restored or rebuilt with available funds to a
profitable condition within a reasonable period of time and in any
event, prior to the final Maturity Date as required by SECTION 2.5
hereof.
(l) CONDEMNATION. (i) Any Tribunal shall require, or
commence any proceeding for, the demolition of any building or structure
comprising a material part of any Project, or (ii) there is commenced
any proceeding to condemn or otherwise take pursuant to the power of
eminent domain, or a contract for sale or a conveyance in lieu of such a
taking is executed which provides for the transfer of, a material
portion of any Project, including but not limited to the taking (or
transfer in lieu thereof) of any portion which would result in the
blockage or substantial impairment of access or utility service to the
Improvements or which would cause such Project to fail to comply with
applicable laws or legal requirements.
(m) LIQUIDATION, ETC. The liquidation, termination,
dissolution, merger, consolidation or failure of any Loan Party to
maintain good standing in the State where any Project owned by such Loan
Party is located and in the state of incorporation or organization of
such Loan Party.
(n) ENFORCEABILITY; PRIORITY. Any Loan Document
shall for any reason without Administrative Agent's specific written
consent cease to be in full force and effect, or shall be declared null
and void or unenforceable in whole or in part, or the validity or
enforceability thereof, in whole or in part, shall be challenged or
denied by any party thereto other than Administrative Agent or a Lender;
or the liens, mortgages or security interests of Administrative Agent in
any Project become unenforceable in whole or in part, or cease to be of
the priority herein required, or the validity or enforceability thereof,
in whole or in part, shall be challenged or denied by Borrower or any
other Loan Party.
4.2 REMEDIES.
(a) Upon and during the continuation of a Default,
Administrative Agent may with the consent of, and shall at the direction
of the Required Lenders, without notice, exercise any and all rights and
remedies afforded by this Agreement, the other Loan Documents, at law or
in equity or otherwise, including (a) declaring any and all Indebtedness
immediately due and payable; (b) reducing any claim to judgment; or (c)
obtaining appointment of a receiver (to which Borrower hereby consents)
and/or judicial or nonjudicial foreclosure under the Mortgage. However,
upon and during the continuation of a Default, Administrative Agent at
its election may (but shall not be obligated to) without the consent of
and shall at the direction of the Required Lenders, without notice, do
any one or more of the following: (a) terminate Lenders' Commitment to
lend hereunder; (b) in its own name on behalf of the Lenders or in the
name of Borrower, enter into possession of any of the Property, perform
all work necessary to maintain and repair any Improvements; or (c)
set-off and apply, to the extent thereof and to the maximum extent
permitted by Law, any and all deposits, funds, or assets at any
CREDIT AGREEMENT - Page 36
time held and any and all other indebtedness at any time owing by
Administrative Agent or any Lender to or for the credit or account of
Borrower against any Indebtedness.
(b) Borrower hereby appoints Administrative Agent as
Borrower's attorney-in-fact, which power of attorney is irrevocable and
coupled with an interest, with full power of substitution if
Administrative Agent so elects, to do any of the following in Borrower's
name upon the occurrence and during the continuation of a Default: (i)
use such sums as are necessary, including any proceeds of the Loan, (ii)
endorse the name of Borrower on any checks or drafts representing
proceeds of any insurance policies, or other checks or instruments
payable to Borrower with respect to the Property; (iii) do every act
with respect to the ownership and operation of the Improvements that
Borrower may do; (iv) prosecute or defend any action or proceeding
incident to the Property, and (v) pay, settle, or compromise all bills
and claims so as to clear title to the Property. Any amounts expended by
Administrative Agent itself or on behalf of Lenders in connection with
the exercise of its remedies herein shall be deemed to have been
advanced to Borrower hereunder as a demand obligation owing by Borrower
to Administrative Agent or Lenders as applicable and shall constitute a
portion of the Indebtedness, regardless of whether such amounts exceed
any limits for Indebtedness otherwise set forth herein. Neither
Administrative Agent nor Lenders shall have any liability to Borrower
for the sufficiency or adequacy of any such actions taken by
Administrative Agent.
(c) No delay or omission of Administrative Agent or
Lenders to exercise any right, power or remedy accruing upon the
happening or during the continuation of a Default shall impair any such
right, power or remedy or shall be construed to be a waiver of any such
Default or any acquiescence therein. No delay or omission on the part of
Administrative Agent or Lenders to exercise any option for acceleration
of the maturity of the Indebtedness, or for foreclosure of the Mortgage
following or during the continuation of any Default as aforesaid, or any
other option granted to Administrative Agent and Lenders hereunder in
any one or more instances, or the acceptances by Administrative Agent or
Lenders of any partial payment on account of the Indebtedness, shall
constitute a waiver of any such Default, and each such option shall
remain continuously in full force and effect. No remedy herein conferred
upon or reserved to Administrative Agent and/or Lenders is intended to
be exclusive of any other remedies provided for in any Note or any of
the other Loan Documents, and each and every such remedy shall be
cumulative, and shall be in addition to every other remedy given
hereunder, or under any Note or any of the other Loan Documents, or now
or hereafter existing at law or in equity or by statute. Every right,
power and remedy given to Administrative Agent and Lenders by this
Agreement, any Note, or any of the other Loan Documents shall be
concurrent, and may be pursued separately, successively or together
against Borrower, or the Property or any part thereof, or any personal
property granted as security under the Loan Documents, and every right,
power and remedy given by this Agreement, any Note, or any of the other
Loan Documents may be exercised from time to time as often as may be
deemed expedient by the Required Lenders.
(d) Regardless of how a Lender may treat payments
received from the exercise of remedies under the Loan Documents for the
purpose of its own accounting, for the purpose of computing the
Indebtedness, payments shall be applied as elected by
CREDIT AGREEMENT - Page 37
Lenders. No application of payments will cure any Default, or prevent
acceleration, or continued acceleration, of amounts payable under the
Loan Documents, or prevent the exercise, or continued exercise, of
rights or remedies of Administrative Agent and Lenders hereunder or
thereunder or at law or in equity.
ARTICLE 5 - ADMINISTRATIVE AGENT
5.1 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably (subject to
SECTION 5.9) appoints, designates and authorizes Administrative Agent to
take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the
contrary contained elsewhere herein or in any other Loan Document,
Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall Administrative Agent
have or be deemed to have any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any
other Loan Document or otherwise exist against Administrative Agent.
Without limiting the generality of the foregoing sentence, the use of
the term "agent" herein and in the other Loan Documents with reference
to Administrative Agent is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency doctrine of
any applicable Law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
(b) No individual Lender or group of Lenders shall
have any right to amend or waive, or consent to the departure of any
party from any provision of any Loan Document, or secure or enforce the
obligations of Borrower or any other party pursuant to the Loan
Documents, or otherwise. All such rights, on behalf of Administrative
Agent or any Lender or Lenders, shall held and exercised solely by and
at the option of Administrative Agent for the pro rata benefit of the
Lenders. Such rights, however, are subject to the rights of a Lender or
Lenders, as expressly set forth in this Agreement, to approve matters or
direct Administrative Agent to take or refrain from taking action as set
forth in this Agreement. Except as expressly otherwise provided in this
Agreement or the other Loan Documents, Administrative Agent shall have
and may use its sole discretion with respect to exercising or refraining
from exercising any discretionary rights, or taking or refraining from
taking any actions which Administrative Agent is expressly entitled to
exercise or take under this Agreement and the other Loan Documents,
including, without limitation, (i) the determination if and to what
extent matters or items subject to Administrative Agent's satisfaction
are acceptable or otherwise within its discretion, (ii) the making of
Administrative Agent Advances, and (iii) the exercise of remedies
pursuant to, but subject to, ARTICLE 4 or pursuant to any other Loan
Document, and any action so taken or not taken shall be deemed consented
to by Lenders.
CREDIT AGREEMENT - Page 38
(c) In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to
Borrower or Subsidiary Guarantor, no individual Lender or group of
Lenders shall have the right, and Administrative Agent (irrespective of
whether the principal of any Loan shall then be due and payable as
herein expressed or by declaration or otherwise and irrespective of
whether Administrative Agent shall have made any demand on Borrower)
shall be exclusively entitled and empowered on behalf of itself and the
Lenders, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole
amount of the principal and interest owing and unpaid in
respect of the Loan and all other Obligations that are
owing and unpaid and to file such other documents as may
be necessary or advisable in order to have the claims of
the Lenders and Administrative Agent (including any
claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and
Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and
Administrative Agent under the Loan Documents allowed in
such judicial proceeding); and
(ii) to collect and receive any monies or
other property payable or deliverable on any such claims
and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby
authorized by each Lender to make such payments to Administrative Agent
and, in the event that Administrative Agent shall consent to the making
of such payments directly to the Lenders, to pay to Administrative Agent
any amount due for the reasonable compensation, expenses, disbursements
and advances of Administrative Agent and its agents and counsel, and any
other amounts due Administrative Agent under SECTION 5.10 and the other
Loan Documents. Nothing contained herein shall be deemed to authorize
Administrative Agent to authorize or consent to or accept or adopt on
behalf of any Lender any plan of reorganization, arrangement, adjustment
or composition affecting the Obligations or the rights of the Lenders
except as approved by the Required Lenders or to authorize
Administrative Agent to vote in respect of the claims of the Lenders
except as approved by the Required Lenders in any such proceeding.
5.2 DELEGATION OF DUTIES. Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultant experts concerning all matters pertaining to such duties.
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects with reasonable care.
5.3 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Persons
shall (i) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of
CREDIT AGREEMENT - Page 39
Lenders for any recital, statement, representation or warranty made by Borrower
or any subsidiary or Affiliate of Borrower, or any officer thereof, contained
herein or in any other Loan Document, or in any certificate, report, statement
or other document referred to or provided for in, or received by Administrative
Agent under or in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of Borrower or any
other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of Borrower, Subsidiary
Guarantor, or any of their Affiliates.
5.4 RELIANCE BY ADMINISTRATIVE AGENT. Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to any party to the Loan Documents),
independent accountants and other experts selected by Administrative Agent.
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders or all Lenders if
required hereunder as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of the Required
Lenders or such greater number of Lenders as may be expressly required hereby in
any instance, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders. In the absence of written
instructions from the Required Lenders or such greater number of Lenders, as
expressly required hereunder, Administrative Agent may take or not take any
action, at its discretion, unless this Agreement specifically requires the
consent of the Required Lenders or such greater number of Lenders.
5.5 NOTICE OF DEFAULT. Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default, unless Administrative
Agent shall have received written notice from a Lender, or Borrower referring to
this Agreement, describing such Default that Administrative Agent determines
will have a Material Adverse Effect. Administrative Agent will notify Lenders of
its receipt of any such notice. Administrative Agent shall take such action with
respect to such Default as may be requested by the Required Lenders in
accordance with ARTICLE 4; PROVIDED, HOWEVER, that unless and until
Administrative Agent has received any such request, Administrative Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default as it shall deem advisable or in the best
interest of Lenders.
5.6 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT.
(a) Each Lender acknowledges that none of
Agent-Related Persons has made any representation or warranty to it, and
that no act by Administrative Agent
CREDIT AGREEMENT - Page 40
hereafter taken, including any consent to and acceptance of any
assignment or review of the affairs of Borrower and Subsidiary
Guarantor, shall be deemed to constitute any representation or warranty
by any Agent-Related Person to any Lenders as to any matter, including
whether Agent-Related Persons have disclosed material information in
their possession. Each Lender represents to Administrative Agent that it
has, independently and without reliance upon any Agent-Related Person
and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition
and creditworthiness of Borrower and Subsidiary Guarantor, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to Borrower and Subsidiary Guarantor
hereunder. Each Lender also represents that it will, independently and
without reliance upon any Agent-Related Person and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan
Documents, and to make such investigations as it deems necessary to
inform itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of Borrower and
Subsidiary Guarantor.
(b) Administrative Agent upon its receipt shall
provide each Lender such notices, reports and other documents expressly
required to be furnished to Lenders by Administrative Agent herein. To
the extent not already available to a Lender, Administrative Agent shall
also provide each Lender and/or make available for each Lender's
inspection during reasonable business hours and at the Lender's expense,
upon the Lender's written request therefor: (i) copies of the Loan
Documents; (ii) such information as is then in Administrative Agent's
possession in respect of the current status of principal and interest
payments and accruals in respect of the Loan; (iii) copies of all
current financial statements in respect of Borrower, or any Subsidiary
Guarantor or other Person liable for payment or performance by Borrower
of any obligations under the Loan Documents, then in Administrative
Agent's possession with respect to the Loan; and (iv) other current
factual information then in Administrative Agent's possession with
respect to the Loan and bearing on the continuing creditworthiness of
Borrower or any Subsidiary Guarantor, or any of their respective
Affiliates; provided that nothing contained in this section shall impose
any liability upon Administrative Agent for its failure to provide a
Lender any of such Loan Documents, information, or financial statements,
unless such failure constitutes willful misconduct or gross negligence
on Administrative Agent's part; and provided, further, that
Administrative Agent shall not be obligated to provide any Lender with
any information in violation of Law or any contractual restrictions on
the disclosure thereof (provided such contractual restrictions shall not
apply to distributing to a Lender factual and financial information
expressly required to be provided herein). Except as set forth above,
Administrative Agent shall not have any duty or responsibility to
provide any Lenders with any credit or other information concerning the
business, prospects, operations, property, financial and other condition
or creditworthiness of Borrower or Subsidiary Guarantor or any of their
respective Affiliates which may come into the possession of any of
Agent-Related Persons.
CREDIT AGREEMENT - Page 41
5.7 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, Lenders shall indemnify upon
demand each Agent-Related Person (to the extent not reimbursed by or on behalf
of Borrower and without limiting the obligation of Borrower to do so), pro rata,
and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it, INCLUDING THOSE IN WHOLE OR PART ARISING
FROM ADMINISTRATIVE AGENT'S STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR
SOLE NEGLIGENCE; PROVIDED, HOWEVER, that no Lender shall be liable for the
payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Agent-Related
Person's own gross negligence or willful misconduct; PROVIDED, HOWEVER, that no
action taken in accordance with the directions of the Required Lenders shall be
deemed to constitute gross negligence or willful misconduct for purposes of this
Section. Without limitation of the foregoing, to the extent that Administrative
Agent is not reimbursed by or on behalf of Borrower, each Lender shall reimburse
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including attorney fees) incurred by Administrative
Agent as described in SECTION 6.10. The undertaking in this Section shall
survive the payment of all Indebtedness hereunder and the resignation or
replacement of Administrative Agent.
5.8 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. Administrative
Agent, in its individual capacity, and its Affiliates may make loans to, issue
letters of credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with any party to the Loan Documents
and their respective Affiliates as though Administrative Agent were not
Administrative Agent hereunder and without notice to or consent of Lenders.
Lenders acknowledge that Borrower and Bank of America, N.A. or its Affiliate
have entered or may enter into Swap Transactions. A portion of the Loan may be
funded to honor Borrower's payment obligations under the terms of such Swap
Transactions, and Lenders shall have no right to share in any portion of such
payments. Lenders acknowledge that, pursuant to such activities, Bank of
America, N.A. or its Affiliates may receive information regarding any party to
the Loan Documents, or their respective Affiliates (including information that
may be subject to confidentiality obligations in favor of such parties or such
parties' Affiliates) and acknowledge that Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Pro Rata
Share of the Loan, Bank of America, N.A. shall have the same rights and powers
under this Agreement as any other Lenders and may exercise such rights and
powers as though it were not Administrative Agent or party to Swap Transactions,
and the terms "Lender" and "Lenders" include Bank of America, N.A. in its
individual capacity.
5.9 SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may, and at
the request of the Required Lenders as a result of Administrative Agent's gross
negligence or willful misconduct in performing its duties under this Agreement
shall, resign as Administrative Agent upon 30 days' notice to Lenders. If
Administrative Agent resigns under this Agreement, the Required Lenders shall
appoint from among Lenders a successor administrative agent for Lenders, which
successor administrative agent must be consented to by Borrower at all times
other than during the existence of a Default (which consent of Borrower shall
not be unreasonably withheld or delayed). If no successor administrative agent
is appointed prior to the effective date of the resignation of Administrative
Agent, Administrative Agent may appoint,
CREDIT AGREEMENT - Page 42
after consulting with Lenders and Borrower, a successor administrative agent
from among Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent" shall mean such successor
administrative agent, and the retiring Administrative Agent's appointment,
powers and duties as Administrative Agent shall be terminated without any other
or further act or deed on the part of or any other Lender. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article and other applicable Sections of this Agreement shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement. If no successor administrative
agent has accepted appointment as Administrative Agent by the date which is 30
days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and Lenders shall perform all of the duties of Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.
5.10 RELEASES; ACQUISITION AND TRANSFERS OF COLLATERAL.
(a) Lenders hereby irrevocably authorize
Administrative Agent to transfer or release any lien on, or after
foreclosure or other acquisition of title by Administrative Agent on
behalf of the Lenders to transfer or sell, any Collateral (i) upon the
termination of the Commitments and payment and satisfaction in full of
all Indebtedness, (ii) constituting a release, transfer or sale of a
lien or property if Borrower will certify to Administrative Agent that
the release, transfer or sale is permitted under this Agreement or the
other Loan Documents (and Administrative Agent may rely conclusively on
any such certificate, without further inquiry); (iii) after foreclosure
or other acquisition of title (1) for a purchase price of 90% of the
value indicated in the most recent Appraisal of the collateral obtained
by Administrative Agent made in accordance with regulations governing
Administrative Agent, less any reduction indicated in the Appraisal
estimated by experts in such areas; or (2) if approved by the Required
Lenders.
(b) If all or any portion of the Collateral is
acquired by foreclosure or by deed in lieu of foreclosure,
Administrative Agent shall take title to the collateral in its name or
by an Affiliate of Administrative Agent, but for the benefit of all
Lenders in their Pro Rata Shares on the date of the foreclosure sale or
recordation of the deed in lieu of foreclosure (the "ACQUISITION DATE").
Administrative Agent and all Lenders hereby expressly waive and
relinquish any right of partition with respect to any collateral so
acquired. After any collateral is acquired, Administrative Agent shall
appoint and retain one or more Persons (individually and collectively,
"PROPERTY MANAGER") experienced in the management, leasing, sale and/or
dispositions of similar properties. After consulting with the Property
Manager, Administrative Agent shall prepare a written plan for
completion of construction (if required), operation, management,
improvement, maintenance, repair, sale and disposition of the Collateral
and a budget for the aforesaid, which may include a reasonable
management fee payable to Administrative Agent (the "BUSINESS PLAN").
Administrative Agent will deliver the Business Plan not later than the
sixtieth (60th) day after the Acquisition Date to each Lender with a
written request for approval of the Business Plan. If the Business Plan
is approved by the Required Lenders,
CREDIT AGREEMENT - Page 43
Administrative Agent and the Property Manager shall adhere to the
Business Plan until a different Business Plan is approved by the
Required Lenders. Administrative Agent may propose an amendment to the
Business Plan as it deems appropriate, which shall also be subject to
Required Lender approval. If the Business Plan (as may be amended)
proposed by Administrative Agent is not approved by the Required
Lenders, (or if sixty (60) days have elapsed following the Acquisition
Date without a Business Plan being proposed by Administrative Agent),
any Lender may propose an alternative Business Plan, which
Administrative Agent shall submit to all Lenders for their approval. If
an alternative Business Plan is approved by the Required Lenders,
Administrative Agent may appoint one of the approving Lenders to
implement the alternative Business Plan. Notwithstanding any other
provision of this Agreement, unless in violation of an approved Business
Plan or otherwise in an emergency situation, Administrative Agent shall,
subject to subsection (a) of this Section, have the right but not the
obligation to take any action in connection with the collateral
(including those with respect to property taxes, insurance premiums,
completion of construction, operation, management, improvement,
maintenance, repair, sale and disposition), or any portion thereof.
(c) Upon request by Administrative Agent or
Borrower at any time, Lenders will confirm in writing Administrative
Agent's authority to sell, transfer or release any such liens of
particular types or items of Collateral pursuant to this Section;
provided, however, that (i) Administrative Agent shall not be required
to execute any document necessary to evidence such release, transfer or
sale on terms that, in Administrative Agent's opinion, would expose
Administrative Agent to liability or create any obligation or entail any
consequence other than the transfer, release or sale without recourse,
representation or warranty, and (ii) such transfer, release or sale
shall not in any manner discharge, affect or impair the obligations of
Borrower other than those expressly being released.
(d) If only two (2) Lenders exist at the time
Administrative Agent receives a purchase offer for Collateral for which
one of the Lenders does not consent within ten (10) Business Days after
notification from Administrative Agent, the consenting Lender may offer
("PURCHASE OFFER") to purchase all of non-consenting Lender's right,
title and interest in the collateral for a purchase price equal to
non-consenting Lender's Pro Rata Share of the net proceeds anticipated
from such sale of such collateral (as reasonably determined by
Administrative Agent, including the undiscounted face principal amount
of any purchase money obligation not payable at closing) ("NET
PROCEEDS"). Within ten (10) Business Days thereafter the non-consenting
Lender shall be deemed to have accepted such Purchase Offer unless the
non-consenting Lender notifies Administrative Agent that it elects to
purchase all of the consenting Lender's right, title and interest in the
collateral for a purchase price payable by the non-consenting Lender in
an amount equal to the consenting Lender's Pro Rata Share of the Net
Proceeds. Any amount payable hereunder by a Lender shall be due on the
earlier to occur of the closing of the sale of the collateral or 90 days
after the Purchase Offer, regardless of whether the collateral has been
sold.
5.11 APPLICATION OF PAYMENTS. Except as otherwise provided below with
respect to Defaulting Lenders, aggregate principal and interest payments,
payments for Indemnified
CREDIT AGREEMENT - Page 44
Liabilities, proceeds from the foreclosure or sale of the collateral, and net
operating income from the collateral during any period it is owned by
Administrative Agent on behalf of the Lenders ("PAYMENTS") shall be apportioned
pro rata among Lenders and payments of any fees (other than fees designated for
Administrative Agent's separate account) shall, as applicable, be apportioned
pro rata among Lenders. Notwithstanding anything to the contrary in this
Agreement, all Payments due and payable to Defaulting Lenders shall be due and
payable to and be apportioned pro rata among Administrative Agent and Electing
Lenders. Such apportionment shall be in the proportion that the Defaulting
Lender Payment Amounts paid by them bears to the total Defaulting Lender Payment
Amounts of such Defaulting Lender. Such apportionment shall be made until
Administrative Agent and Lenders have been paid in full for the Defaulting
Lender Payment Amounts. All pro rata Payments shall be remitted to
Administrative Agent and all such payments not constituting payment of specific
fees, and all proceeds of the Collateral received by Administrative Agent, shall
be applied FIRST, to pay any fees, indemnities, costs, expenses (including those
in SECTION 5.7) and reimbursements then due to Administrative Agent from
Borrower; SECOND, to pay any fees, costs, expenses and reimbursements as may be
provided for herein then due to Lenders from Borrower; THIRD, to pay pro rata
interest due in respect of the Indebtedness and Administrative Agent Advances;
FOURTH, to pay or prepay pro rata principal of the Indebtedness and
Administrative Agent Advances; FIFTH, to pay any indebtedness of Borrower under
Swap Transactions; and LAST, to Borrower or to Borrower's successors or assigns,
or such other Persons (including the holder or beneficiary of any inferior lien)
as may be entitled thereto by Law.
5.12 BENEFIT. The terms and conditions of this Article are inserted
for the sole benefit of Administrative Agent and Lenders; the same may be waived
in whole or in part, with or without terms or conditions, without prejudicing
Administrative Agent's or Lenders' rights to later assert them in whole or in
part.
5.13 CO-AGENTS; LEAD MANAGERS. None of the Lenders or other Persons
now or hereafter identified as a "syndication agent", "documentation agent",
"co-agent", "book manager", or "lead manager", "arranger", "lead arranger" or
"co-arranger" shall have any right, power, obligation, liability, responsibility
or duty under this Agreement other than, in the case of such lenders, those
applicable to all Lenders as such. Without limiting the foregoing, none of
Lenders or other Persons so identified as a "syndication agent", "documentation
agent", "co-agent" or "lead manager" shall have or be deemed to have any
fiduciary relationship with any Lenders. Each Lender acknowledges that it has
not relied, and will not rely, on any of Lenders or other Persons so identified
in deciding to enter into this Agreement or in taking or not taking action
hereunder.
ARTICLE 6 - GENERAL TERMS AND CONDITIONS
6.1 CONSENTS; BORROWER'S INDEMNITY. Except where otherwise expressly
provided in the Loan Documents, in any instance where the approval, consent or
the exercise of Administrative Agent's or the Required Lenders' judgment is
required, the granting or denial of such approval or consent and the exercise of
such judgment shall be (a) within the sole discretion of Administrative Agent or
the Required Lenders; (b) deemed to have been given only by a specific writing
intended for the purpose given and executed by Administrative Agent or the
Required Lenders; and (c) free from any limitation or requirement of
CREDIT AGREEMENT - Page 45
reasonableness. Notwithstanding any approvals or consents by Administrative
Agent or any Lenders, neither Administrative Agent nor any Lender has any
obligation or responsibility whatsoever for the adequacy, form or content of any
Appraisal, or Lease or contract, or any other matter incident to the Property.
Any inspection, appraisal or audit of the Property or the books and records of
any Loan Party, or the procuring of documents and financial and other
information, by or on behalf of Administrative Agent shall be for Administrative
Agent's and Lenders' protection only, and shall not constitute an assumption of
responsibility to any Loan Party or anyone else with regard to the condition,
value, construction, maintenance or operation of the Property, or relieve any
Loan Party of such Loan Party's obligations. Each Loan Party has selected its
own surveyors, architects, engineers, contractors, materialmen and all other
Persons or entities furnishing services or materials to the Project owned by
such Loan Party. Neither Administrative Agent nor any Lender has any duty to
supervise or to inspect the Property or any duty of care to any Loan Party to
protect against, or inform any Loan Party of the existence of, negligent,
faulty, inadequate or defective Improvements comprising any part of the
Property. Neither Administrative Agent nor any Indemnified Party shall be liable
or responsible for, and each Loan Party shall indemnify each Agent-Related
Person and each Indemnified Party and their respective Affiliates, directors,
officers, agents, attorneys and employees (collectively, the "INDEMNITIES") from
and against: (a) any Claims, arising from or relating to (i) any defect in any
of the Property or the Improvements, (ii) the performance or failure of
performance of any Loan Party or such Loan Party's surveyors, architects,
engineers, contractors, or any other Person, with respect to the Improvements,
(iii) any failure to repair, maintain, protect or insure the Improvements, (iv)
the payment of costs of labor, materials, or services supplied for the repair,
maintenance or renovation of the Improvements, (v) in connection with the
protection and preservation of the Collateral (including those with respect to
property taxes, insurance premiums, operation, management, improvements,
maintenance, repair, sale and disposition), (vi) the performance of any
obligation of each Loan Party whatsoever, or (vii) Environmental Damages; (b)
any and all liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses and disbursements (including
attorney fees and costs) of any kind or nature whatsoever which may at any time
be imposed on, incurred by or asserted against any such Indemnitees in any way
relating to or arising out of or in connection with (i) the execution, delivery,
enforcement, performance or administration of any Loan Document or any other
agreement, letter or instrument delivered in connection with the transactions
contemplated thereby or the consummation of the transactions contemplated
thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds
therefrom, or (iii) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory (including any investigation of, preparation for, or defense
of any pending or threatened claim, investigation, litigation or proceeding) and
regardless of whether any Indemnitee is a party thereto; (c) any and all claims,
demands, actions or causes of action arising out of or relating to the use of
Information (as defined in SECTION 6.6) or other materials obtained through
internet, Intralinks or other similar information transmission systems in
connection with this Agreement; and (d) any and all liabilities, losses, costs
or expenses (including reasonable attorney fees and costs) that any Indemnified
Party suffers or incurs as a result of the assertion of any foregoing claim,
demand, action, cause of action or proceeding, or as a result of the preparation
of any defense in connection with any foregoing claim, demand, action, cause of
action or proceeding, in all cases, whether or not an Indemnified Party is a
party to such claim, demand, action, cause of action or proceeding and whether
it is defeated,
CREDIT AGREEMENT - Page 46
successful or withdrawn, (all the foregoing, collectively, the "INDEMNIFIED
LIABILITIES"), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNIFIED
PARTY'S STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE;
PROVIDED that such indemnity shall not, as to any Indemnitee, be available to
the extent that such liabilities, obligations, losses, damages, penalties,
claims, demands, actions, judgments, suits, costs, expenses or disbursements are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnified Party. Upon demand by Administrative Agent, each Loan Party
shall diligently defend any Claim which affects the Property or is made or
commenced against Administrative Agent or any Lender, whether alone or together
with any Loan Party or any other Person, all at the sole cost and expense of
such Loan Party and by counsel to be approved by Administrative Agent in the
exercise of its reasonable judgment. In the alternative, at any time
Administrative Agent may elect to conduct its own defense on behalf of itself or
any Lender through counsel selected by Administrative Agent and at the cost and
expense of the Loan Parties.
6.2 MISCELLANEOUS. This Agreement may be executed in several
counterparts, all of which are identical, and all of which counterparts together
shall constitute one and the same instrument. The Loan Documents are for the
sole benefit of Administrative Agent, Lenders and each Loan Party and are not
for the benefit of any third party. A determination that any provision of this
Agreement is unenforceable or invalid shall not affect the enforceability or
validity of any other provision and the determination that the application of
any provision of this Agreement to any person or circumstance is illegal or
unenforceable shall not affect the enforceability or validity of such provision
as it may apply to other persons, entities or circumstances. Time shall be of
the essence with respect to the payment and performance of the obligations of
each Loan Party under the Loan Documents. This Agreement, and its validity,
enforcement and interpretation, shall be governed by Texas Law (without regard
to any conflict of Laws principles that would apply any other Law) and
applicable United States federal Law.
6.3 NOTICES.
6.3.1 MODES OF DELIVERY; CHANGES. Except as otherwise provided
herein, all notices, and other communications required or which any
party desires to give under this Agreement or any other Loan Document
shall be in writing. Unless otherwise specifically provided in such
other Loan Document, all such notices and other communications shall be
deemed sufficiently given or furnished if delivered by personal
delivery, by courier, by registered or certified United States mail,
postage prepaid, or by facsimile (with, subject to SECTION 6.3.2 below,
a confirmatory duplicate copy sent by first class United States mail),
addressed to the party to whom directed or by (subject to SECTION 6.3.3
below) electronic mail address to Borrower, at the addresses set forth
at the end of this Agreement or to Administrative Agent or Lenders at
the addresses specified for notices on the Schedule of Lenders (unless
changed by similar notice in writing given by the particular party whose
address is to be changed). Any such notice or communication shall be
deemed to have been given and received either at the time of personal
delivery or, in the case of courier or mail, as of the date of first
attempted delivery at the address and in the manner provided herein, or,
in the case of facsimile, upon receipt; provided, however, that service
of a notice required by any applicable
CREDIT AGREEMENT - Page 47
statute shall be considered complete when the requirements of that
statute are met. Notwithstanding the foregoing, no notice of change of
address shall be effective except upon actual receipt. This Section
shall not be construed in any way to affect or impair any waiver of
notice or demand provided in any Loan Document or to require giving of
notice or demand to or upon any person in any situation or for any
reason.
6.3.2 EFFECTIVENESS OF FACSIMILE DOCUMENTS AND SIGNATURES.
Loan Documents may be transmitted and/or signed by facsimile. The
effectiveness of any such documents and signatures shall, subject to
applicable Law, have the same force and effect as manually-signed
originals and shall be binding on all parties to the Loan Documents.
Administrative Agent may also require that any such documents and
signatures be confirmed by a manually-signed original thereof; PROVIDED,
HOWEVER, that the failure to request or deliver the same shall not limit
the effectiveness of any facsimile document or signature.
6.3.3 LIMITED USE OF ELECTRONIC MAIL. Electronic mail and
internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information, and
to distribute Loan Documents for execution by the parties thereto, and
may not be used for any other purpose.
6.3.4 RELIANCE BY ADMINISTRATIVE AGENT AND LENDERS.
Administrative Agent and the Lenders shall be entitled to rely and act
upon any notices (including telephonic Advance notices) purportedly
given by or on behalf of Borrower even if (i) such notices were not made
in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify each Agent-Related Person and each
Lender from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on
behalf of Borrower, INCLUDING IN WHOLE OR PART FOR AN AGENT RELATED
PERSON'S OR LENDER'S STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR
SOLE NEGLIGENCE, except to the extent of their gross negligence or
willful misconduct. All telephonic notices to and other communications
with Administrative Agent may be recorded by Administrative Agent, and
each of the parties hereto hereby consents to such recording. If a
Lender does not notify or inform Administrative Agent of whether or not
it consents to, or approves of or agrees to any matter of any nature
whatsoever with respect to which its consent, approval or agreement is
required under the express provisions of this Agreement or with respect
to which its consent, approval or agreement is otherwise requested by
Administrative Agent, in connection with the Loan or any matter
pertaining to the Loan, within ten (10) Business Days (or such longer
period as may be specified by Administrative Agent) after such consent,
approval or agreement is requested by Administrative Agent, the Lender
shall be deemed to have given its consent, approval or agreement, as the
case may be, with respect to the matter in question.
6.4 PAYMENTS SET ASIDE. To the extent that any payment by or on
behalf of any Loan Party is made to Administrative Agent or any Lender, or
Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof
is subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by
Administrative Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any proceeding under
any Debtor Relief Law, to a depository (including Administrative Agent, any
Lender or its or their affiliates) for returned items or insufficient collected
funds, or otherwise, then (a) to the extent of such recovery, the obligation or
part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such set-off
had not occurred, and (b) each Lender severally agrees to pay to Administrative
Agent upon demand its applicable share of any amount so recovered from or repaid
by Administrative Agent, plus interest thereon from the date of such demand to
the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect.
6.5 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Loan
Party may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender, and no
Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (d) of
this Section, or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section
(and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Indemnified
Parties) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and Pro Rata
Share of the Loan; PROVIDED THAT:
(i) so long as no Default has occurred and
is continuing the assigning Lender's Commitment after
the assignment must be at least $10,000,000.00, and
except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment
and Pro Rata Share of the Loan at the time owing to it
or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund as defined in
subsection (h) of this Section with respect to a Lender,
the aggregate amount of the Commitment (which for this
purpose includes its Pro Rata Share of the Loan
outstanding) subject to each such assignment, determined
as of the date the Assignment and Assumption with
respect to such assignment is delivered to
Administrative Agent, shall not be less than $10,000,000
unless each of Administrative Agent and, so long as no
CREDIT AGREEMENT - Page 49
Default has occurred and is continuing, Borrower
otherwise consents (each such consent not to be
unreasonably withheld or delayed);
(ii) each partial assignment shall be made as
an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this
Agreement with respect to its Pro Rata Share of the Loan
and the Commitment assigned;
(iii) any assignment of a Commitment must be
approved by Administrative Agent unless the Person that
is the proposed assignee is itself a Lender (whether or
not the proposed assignee would otherwise qualify as an
Eligible Assignee); and
(iv) the parties to each assignment shall
execute and deliver to Administrative Agent an
Assignment and Assumption, together with a processing
and recordation fee of $3,500, plus the cost of any
applicable endorsement to the Title Insurance or new
Title Insurance.
Subject to acceptance and recording thereof by Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective
date specified in each Assignment and Assumption, the assignee
thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all
of the assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of this Agreement with respect to Borrower's
obligations surviving termination of this Agreement). Upon request,
Administrative Agent shall prepare and Borrower shall execute and
deliver a Note ("REPLACEMENT NOTE") to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation
in such rights and obligations in accordance with subsection (d) of this
Section.
(c) The Administrative Agent, acting solely for this purpose
as an agent of Borrower, shall forward the Assignment and Assumption and
the Replacement Note to the Title Company for issuance of an applicable
endorsement to the Title Insurance or new Title Insurance, and shall
maintain at Administrative Agent's Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the
names and addresses of the Lenders, and the Commitments of, and
principal amount of each Lender's Pro Rata Share of the Loan owing to,
each Lender pursuant to the terms hereof from time to time (the
"REGISTER"). The entries in the Register shall be conclusive, and
Borrower, Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The
CREDIT AGREEMENT - Page 50
Register shall be available for inspection by Borrower and any Lender,
at any reasonable time and from time to time upon reasonable prior
notice.
(d) Any Lender may, without the consent of, but with prior
notice to Administrative Agent, sell participations to one or more banks
or other entities (a "PARTICIPANT") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or its Pro Rata Share of the Loan owing to
it); PROVIDED THAT (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations,
(iii) Borrower, Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, and
(iv)except to the extent consented to by Administrative Agent and
Borrower, in their reasonable discretion with respect to each
participation, any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement, except any
amendment, waiver or other modification of this Agreement that, pursuant
to SECTION 6.9 hereof, requires the consent of all Lenders.
(e) A Participant shall not be entitled to receive any
greater payment under SECTIONS 1.7, 1.8 or 1.9 than the applicable
Lender would have been entitled to receive with respect to the
participation sold to such Participant.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights (but not its obligations)
under this Agreement (including under its Note, if any) to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; PROVIDED that no such pledge or
assignment shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) If the consent of Borrower to an assignment or to an
assignee is required hereunder (including a consent to an assignment
which does not meet the minimum assignment threshold specified in clause
(i) of the provision to the first sentence of subsection (b) above),
Borrower shall be deemed to have given its consent five (5) Business
Days after the date notice thereof has been delivered by the assigning
Lender (through Administrative Agent) unless such consent is expressly
refused by Borrower prior to such fifth Business Day.
(h) As used herein, the term "ELIGIBLE ASSIGNEE" means (a) a
Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any
other Person (other than a natural Person) that is (i) a financial
institution organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least
$100,000,000; (ii) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of any such
country, and having a combined capital and surplus of at least
$100,000,000, provided that such bank is acting through a branch or
agency located
CREDIT AGREEMENT - Page 51
in the United States; (iii) a person that is primarily engaged in the
business of commercial banking and that is an "accredited investor" (as
defined in Regulation D under the Securities Act of 1933, as amended)
which extends credit or buys loans as one of its businesses, including
but not limited to, insurance companies, mutual funds and lease
financing companies; or (iv) other lenders or institutional investors
approved by the Administrative Agent and unless a Default has occurred
and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed). Neither the Borrower nor any
Affiliate of a Borrower shall be an Eligible Assignee. As used herein,
the term "Fund" means any Person (other than a natural Person) that is
(or will be) engaged in making, purchasing, holding or otherwise
investing in commercial real estate loans and similar extensions of
credit in the ordinary course of its business and the term "APPROVED
FUND" means any Fund that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
6.6 CONFIDENTIALITY. Each of the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates respective
partners, directors, officers, employees and agents, including accountants,
legal counsel and other advisors and representatives (collectively,
"REPRESENTATIVES")(it being understood that the Representatives to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential); (b) to the
extent requested by any governmental agency or regulatory authority having or
purporting to have jurisdiction to regulate or oversee any aspect of any
Lender's business or that of its Representatives (including any self-regulatory
authority, such as the National Association of Insurance Commissioners) in
connection with the exercise of such authority or claimed authority; (c) to the
extent required by applicable Laws or regulations or by any subpoena or similar
legal process; (d) to any other party this Agreement; (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any suit,
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder; (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or participant in, or any prospective assignee of or participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or such counterparty's or prospective counterparty's
professional advisors) to any Swap Transaction or derivative transaction
relating to any Loan Party and its obligations; (g) with the consent of
Borrower; or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to
the Administrative Agent, any Lender, or any of their respective Affiliates on a
nonconfidential basis from a source other than any Loan Party. For purposes of
this Section, "INFORMATION" means all information received from Borrower or any
Subsidiary relating to Borrower or any Subsidiary or any of their respective
businesses, other than (i) any such information that is available to
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by Borrower or any Subsidiary, (i) any such information that is any
Lender's possession prior to its being provided by or on behalf of Borrower or
any Subsidiary, provided that such information is not known by such Lender to be
subject to another confidentiality agreement with, or other legal or contractual
obligation of confidentiality to, Borrower or any Subsidiary, (ii) is or becomes
publicly available (other than through a breach of this Agreement by Lenders).
Any Person required to maintain the confidentiality of Information as provided
in
CREDIT AGREEMENT - Page 52
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. Administrative Agent and the Lenders may disclose the
existence of this Agreement and information about this Agreement to market data
collectors, similar service providers to the lending industry, and service
providers to Administrative Agent and the Lenders in connection with the
administration and management of this Agreement, the Loan and the Loan
Documents. This Agreement is intended to provide express authorization that
Lenders (and each employee, representative, or other agent of Lenders) may
disclose to any and all persons, without limitation of any kind, the "tax
treatment" and "tax structure" (in each case, within the meaning of Treasury
Regulation Section 1.6011-4) of the transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to Lenders relating
to such tax treatment and tax structure; provided that, with respect to any
document or similar item that in either case contains information concerning the
tax treatment or tax structure of the transaction as well as other information,
this authorization shall only apply to such portions of the document or similar
item that relate to the tax treatment or tax structure of the transaction.
6.7 SET-OFF. In addition to any rights and remedies of
Administrative Agent and Lenders provided by Law, upon the occurrence and during
the continuance of any Default, Administrative Agent and each Lender is
authorized at any time and from time to time, without prior notice to Borrower
or any other Loan Party, any such notice being waived by Borrower (on its own
behalf and on behalf of each such Loan Party to the fullest extent permitted by
Law), to set-off and apply any and all deposits, general or special, time or
demand, provisional or final, any time owing by Administrative Agent or such
Lender hereunder or under any other Loan Document to or for the credit or the
account of such parties to the Loan Documents against any and all Indebtedness,
irrespective of whether or not Administrative Agent or such Lender shall have
made demand under this Agreement or any other Loan Document and although such
Indebtedness may be contingent or unmatured or denominated in a currency
different from that of the applicable depositor indebtedness. Each Lender hereby
acknowledges that the exercise by any Lender of offset, set-off, Banker's lien,
or similar rights against any deposit account or other property or asset of
Borrower whether or not located in California or another state with certain laws
restricting Lenders from pursuing multiple collection methods, could result
under such laws in significant impairment of the ability of all Lenders to
recover any further amounts in respect of the Loan. Therefore, each Lender
agrees not to charge or offset any amount owed to it by Borrower against any of
the accounts, property or assets of Borrower or any of its Affiliates held by
such Lender, without the prior written approval of Administrative Agent and the
Required Lenders.
6.8 SHARING OF PAYMENTS. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the portions of the Loan
advanced by it, any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) in excess of its ratable share
(or other share contemplated hereunder) thereof, such Lender shall immediately
(a) notify Administrative Agent of such fact, and (b) purchase from the other
Lenders such participations in the portions of the Loan made by them as shall be
necessary to cause such purchasing Lender to share the excess payment in respect
of such portions of the Loan or such participations, as the case may be, pro
rata with each of them; PROVIDED, HOWEVER, that if all or any portion of such
excess payment is thereafter recovered from the purchasing Lender under
CREDIT AGREEMENT - Page 53
any of the circumstances described in SECTION 6.4 (including pursuant to any
settlement entered into by the purchasing Lender in its discretion), such
purchase shall to that extent be rescinded and each other Lender shall repay to
the purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender's ratable share (according to the proportion of (i)
the amount of such paying Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered
without further interest thereon. Each Loan Party agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by Law, exercise all its rights of payment (including the right of
set-off), but subject to SECTION 6.7 with respect to such participation as fully
as if such Lender were the direct creditor of such Loan Party in the amount of
such participation. Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders following
any such purchases or repayments. Each Lender that purchases a participation
pursuant to this Section shall from and after such purchase have the right to
give all notices, requests, demands, directions and other communications under
this Agreement with respect to the portion of the Obligations purchased to the
same extent as though the purchasing Lender were the original owner of the
Obligations purchased.
6.9 AMENDMENTS; SURVIVAL. Administrative Agent and Lenders shall be
entitled to amend (whether pursuant to a separate intercreditor agreement or
otherwise) any of the terms, conditions or agreements set forth in ARTICLE 5 or
as to any other matter in the Loan Documents respecting payments to
Administrative Agent or Lenders, except any Material Borrower Amendment (as
defined below), without the consent of Borrower, any Loan Party or any other
Person or the execution by Borrower, any Loan Party or any other Person of any
such amendment or intercreditor agreement. As used herein, the term "MATERIAL
BORROWER AMENDMENT" means any amendment to the terms, conditions or agreements
in this Agreement that purports to (i) increase the number of the Lenders
required to approve or disapprove any matter or to take or refrain from taking
any action hereunder, or (ii) any other change that adversely affects the rights
or obligations of any Loan Party hereunder. Subject to the foregoing,
Administrative Agent may amend or waive any provision of this Agreement or any
other Loan Document, or consent to any departure by any party to the Loan
Documents therefrom which amendment, waiver or consent is intended to be within
Administrative Agent's discretion or determination, or otherwise in
Administrative Agent's reasonable determination shall not have a Material
Adverse Effect; PROVIDED however, otherwise no such amendment, waiver or consent
shall be effective unless in writing, signed by the Required Lenders and
Borrower or the applicable party to the Loan Documents, as the case may be, and
acknowledged by Administrative Agent, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; PROVIDED further however, no such amendment, waiver or consent shall:
(a) extend (except in accordance with SECTION 1.5
hereof) or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to SECTION 4.2), without the written
consent of such Lender (it being understood that a waiver of a Default
shall not constitute an extension or increase in any Lender's
Commitment);
CREDIT AGREEMENT - Page 54
(b) postpone (except in accordance with SECTION 1.5
hereof) any date fixed by this Agreement or any other Loan Document for
any payment, excluding mandatory prepayments, of principal, interest,
fees or other amounts due to the Lenders (or any of them) hereunder or
under any other Loan Document, without the written consent of each
Lender directly affected thereby;
(c) reduce the principal of, or the rate of interest
specified herein on, any portion of the Loan, or any fees or other
amounts payable hereunder or under any other Loan Document, without the
written consent of each Lender directly affected thereby; provided,
however, that Administrative Agent may waive any obligation of Borrower
to pay interest at the Past Due Rate for periods of up to thirty days,
and only the consent of the Required Lenders shall be necessary to waive
any obligation of Borrower to pay interest at the Past Due Rate
thereafter, or to amend the definition of "Past Due Rate";
(d) change the percentage of the Aggregate
Commitments or of the aggregate unpaid principal amount of the Loan
which is required for the Lenders or any of them to take any action
hereunder, without the written consent of each Lender;
(e) change the definition of "Pro Rata Share" or
"Required Lender" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender;
(f) amend this Section, or SECTION 6.8, without the
written consent of each Lender;
(g) release the liability of Borrower or any
existing Subsidiary Guarantor without the written consent of each
Lender;
(h) permit the sale, transfer, pledge, mortgage or
assignment of any Collateral or any direct or indirect interest in
Borrower, except as expressly permitted under the Loan Documents,
without the written consent of each Lender; or
(i) transfer or release any lien on, or after
foreclosure or other acquisition of title by Administrative Agent on
behalf of the Lenders transfer or sell, any Collateral except as
permitted in SECTION 5.10, without the written consent of each Lender.
and, PROVIDED FURTHER, that no amendment, waiver or consent shall, unless in
writing and signed by Administrative Agent in addition to the Lenders required
above, affect the rights or duties of Administrative Agent under this Agreement
or any other Loan Document. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased without the consent of such Lender. This Agreement shall continue
in full force and effect until the Indebtedness is paid in full and all of
Administrative Agent's and Lenders' obligations under this Agreement are
terminated; and all representations and warranties and all provisions herein for
indemnity of the Indemnified Parties, Administrative Agent and
CREDIT AGREEMENT - Page 55
Lenders (and any other provisions herein specified to survive) shall survive
payment in full, satisfaction or discharge of the Indebtedness, the resignation
or removal of Administrative Agent or replacement of any Lender, and any release
or termination of this Agreement or of any other Loan Documents.
6.10 COSTS AND EXPENSES. Without limiting any Loan Document and to
the extent not prohibited by applicable Laws, Borrower shall pay when due, shall
reimburse to Administrative Agent for the benefit of itself and Lenders on
demand and shall indemnify Administrative Agent and Lenders from, all
reasonable, out-of-pocket fees, costs, and expenses paid or incurred by
Administrative Agent in connection with the negotiation, preparation and
execution of this Agreement and the other Loan Documents (and any amendments,
approvals, consents, waivers and releases requested, required, proposed or done
from time to time), or in connection with the disbursement, administration or
collection of the Loan or the enforcement of the obligations of Borrower or the
exercise of any right or remedy of Administrative Agent, including (a) all
reasonable fees and expenses of Administrative Agent's counsel; (b) reasonable
fees and charges of each Engineer; (c) Appraisal and survey costs; (d) title
insurance charges and premiums; (e) title search or examination costs, including
abstracts, abstractors' certificates and uniform commercial code searches; (f)
judgment and tax lien searches for each Loan Party; (g) escrow fees; (h)
reasonable fees and costs of environmental investigations, site assessments and
remediations; (i) recordation taxes, documentary taxes, transfer taxes and
mortgage taxes; (j) filing and recording fees; and (k) loan brokerage fees.
Borrower shall pay all costs and expenses incurred by Administrative Agent,
including reasonable attorneys' fees, if the obligations or any part thereof are
sought to be collected by or through an attorney at Law, whether or not
involving probate, appellate, administrative or bankruptcy proceedings. Borrower
shall pay all costs and expenses of complying with the Loan Documents.
Borrower's obligations under this Section shall survive the delivery of the Loan
Documents, the making of Advances, the payment in full of the Indebtedness, the
release or reconveyance of any of the Loan Documents, the foreclosure of the
Mortgage or conveyance in lieu of foreclosure, any bankruptcy or other debtor
relief proceeding, and any other event whatsoever.
6.11 TAX FORMS. (a) (i) Each Lender, and each holder of a
participation interest herein, that is not a "United States person" (a "FOREIGN
LENDER") within the meaning of Section 7701(a)(30) of the Internal Revenue Code
of 1986, as amended from time to time ("CODE") shall deliver to Administrative
Agent, prior to receipt of any payment subject to withholding (or upon accepting
an assignment or receiving a participation interest herein), two duly signed
completed copies of either Form W-8BEN or any successor thereto (relating to
such Foreign Lender and entitling it to a complete exemption from withholding on
all payments to be made to such Foreign Lender by Borrower pursuant to this
Agreement) or Form W-8ECI or any successor thereto (relating to all payments to
be made to such Foreign Lender by Borrower pursuant to this Agreement) of the
United States Internal Revenue Service or such other evidence satisfactory to
Borrower and Administrative Agent that such Foreign Lender is entitled to an
exemption from or reduction of, United States withholding tax, including any
exemption pursuant to Section 881(c) of the Code. Thereafter and from time to
time, each such Foreign Lender shall (A) promptly submit to Administrative Agent
such additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States Laws and regulations to avoid, or such evidence as is satisfactory to
Borrower and Administrative Agent of
CREDIT AGREEMENT - Page 56
any available exemption from or reduction of, United States withholding taxes in
respect of all payments to be made to such Foreign Lender by Borrower pursuant
to the Loan Documents, (B) promptly notify Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction, and (C) take such steps as shall not be materially disadvantageous to
it, in the reasonable judgment of such Lenders, and as may be reasonably
necessary (including the re-designation of its lending office, if any) to avoid
any requirement of applicable Laws that Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not
act or ceases to act for its own account with respect to any
portion of any sums paid or payable to such Lender under any of
the Loan Documents (for example, in the case of a typical
participation by such Lender), shall deliver to Administrative
Agent on the date when such Foreign Lender ceases to act for its
own account with respect to any portion of any such sums paid or
payable, and at such other times as may be necessary in the
determination of Administrative Agent (in the reasonable
exercise of its discretion), (A) two duly signed completed
copies of the forms or statements required to be provided by
such Lender as set forth above, to establish the portion of any
such sums paid or payable with respect to which such Lender acts
for its own account that is not subject to U.S. withholding tax,
and (B) two duly signed completed copies of United States
Internal Revenue Service Form W-8IMY (or any successor thereto),
together with any information such Lender chooses to transmit
with such form, and any other certificate or statement of
exemption required under the Code, to establish that such Lender
is not acting for its own account with respect to a portion of
any such sums payable to such Lender.
(iii) Borrower shall not be required to pay any
additional amount to any Foreign Lender under SECTION 1.11(A)
with respect to any Taxes required to be deducted or withheld
(A) on the basis of the information, certificates or statements
of exemption such Lender transmits with an United States
Internal Revenue Service Form W-8IMY pursuant to this subsection
(a) or (B) if such Lender shall have failed to satisfy the
foregoing provisions of this subsection (a); provided that if
such Lender shall have satisfied the requirement of this
subsection (a) on the date such Lender became a Lender or ceased
to act for its own account with respect to any payment under any
of the Loan Documents, nothing in this subsection (a) shall
relieve Borrower of its obligation to pay any amounts pursuant
to SECTION 1.11 in the event that, as a result of any change in
any applicable law, treaty or governmental rule, regulation or
order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly entitled
to deliver forms, certificates or other evidence at a subsequent
date establishing the fact that such Lender or other Person for
the account of which such Lender receives any sums payable under
any of the Loan Documents is not subject to withholding or is
subject to withholding at a reduced rate.
CREDIT AGREEMENT - Page 57
(iv) Administrative Agent may, without reduction,
withhold any Taxes required to be deducted and withheld from any
payment under any of the Loan Documents with respect to which
Borrower is not required to pay additional amounts under this
subsection (a).
(b) Upon the request of Administrative Agent, each Lender
that is a "United States person" within the meaning of Section 7701(a)
(30) of the Code shall deliver to Administrative Agent two duly signed
completed copies of United States Internal Revenue Service Form W-9. If
such Lender fails to deliver such forms, then Administrative Agent may
withhold from any interest payment to such Lender an amount equivalent
to the applicable back-up withholding tax imposed by the Code, without
reduction.
(c) If any Tribunal asserts that Administrative Agent did
not properly withhold or backup withhold, as the case may be, any tax or
other amount from payments made to or for the account of any Lender,
such Lender shall indemnify Administrative Agent therefor, including all
penalties and interest and costs and expenses (including attorney fees)
of Administrative Agent. The obligation of Lenders under this subsection
shall survive the removal or replacement of a Lender, the payment of all
Indebtedness and the resignation or replacement of Administrative Agent.
6.12 FURTHER ASSURANCES. Each Loan Party will, upon Administrative
Agent's reasonable request, (a) promptly correct any defect or error in any Loan
Document; (b) execute, acknowledge, deliver, procure, record or file such
further instruments and do such further acts as Administrative Agent deems
necessary, desirable or proper to carry out the purposes of the Loan Documents
and to identify and subject to the liens and security interest of the Loan
Documents any property intended to be covered thereby, including any renewals,
additions, substitutions, replacements, or appurtenances to the Property; (c)
execute, acknowledge, deliver, procure, file or record any document or
instrument Administrative Agent deems necessary, desirable, or proper to protect
the liens or the security interest under the Loan Documents against the rights
or interests of third persons; and (d) provide such certificates, documents,
reports, information, affidavits and other instruments and do such further acts
deemed necessary, desirable or proper by Administrative Agent to comply with the
requirements of any agency having jurisdiction over Administrative Agent.
6.13 INDUCEMENT TO LENDERS. The representations, warranties, covenant
and agreements contained in this Agreement and the other Loan Documents (a) are
made to induce Lenders to make the Loan and extend any other credit to or for
the account of Borrower pursuant hereto, and Administrative Agent and Lenders
are relying thereon, and will continue to rely thereon, and (b) shall survive
any bankruptcy proceedings involving any Loan Party or the Property,
foreclosure, or conveyance in lieu of foreclosure.
6.14 FORUM. Each Party to this Agreement hereby irrevocably submits
generally and unconditionally for itself and in respect of its property to the
jurisdiction of any state court, or any United States federal court, sitting in
the State specified in SECTION 6.2 of this Agreement and to the jurisdiction of
any state court or any United States federal court, sitting in the state in
which any of the Property is located, over any suit, action or proceeding
arising out of or relating
CREDIT AGREEMENT - Page 58
to this Agreement or the Indebtedness. Each Party to this Agreement hereby
irrevocably waives, to the fullest extent permitted by Law, any objection that
they may now or hereafter have to the laying of venue in any such court and any
claim that any such court is an inconvenient forum. Each Party to this Agreement
hereby agrees and consents that, in addition to any methods of service of
process provided for under applicable Law, all service of process in any such
suit, action or proceeding in any state court, or any United States federal
court, sitting in the state specified in SECTION 6.2 may be made by certified or
registered mail, return receipt requested, directed to such party at its address
for notice stated in the Loan Documents, or at a subsequent address of which
Administrative Agent received actual notice from such party in accordance with
the Loan Documents, and service so made shall be complete five (5) days after
the same shall have been so mailed. Nothing herein shall affect the right of
Administrative Agent to serve process in any manner permitted by Law or limit
the right of Administrative Agent to bring proceedings against any party in any
other court or jurisdiction.
6.15 INTERPRETATION. References to "Dollars," "$," "money,"
"payments" or other similar financial or monetary terms are references to lawful
money of the United States of America. References to Articles, Sections, and
Exhibits are, unless specified otherwise, references to articles, sections and
exhibits of this Agreement. Words of any gender shall include each other gender.
Words in the singular shall include the plural and words in the plural shall
include the singular. References to Borrower or Subsidiary Guarantor shall mean,
each Person comprising same, jointly and severally. References to "Persons"
shall include both natural persons and any legal entities, including public or
governmental bodies, agencies or instrumentalities. The words "include" and
"including" shall be interpreted as if followed by the words "without
limitation". Captions and headings in the Loan Documents are for convenience
only and shall not affect the construction of the Loan Documents.
6.16 NO PARTNERSHIP, ETC. The relationship between Lenders (including
Administrative Agent) and Borrower is solely that of lender and borrower.
Neither Administrative Agent nor any Lender has any fiduciary or other special
relationship with or duty to Borrower or any Loan Party and none is created by
the Loan Documents. Nothing contained in the Loan Documents, and no action taken
or omitted pursuant to the Loan Documents, is intended or shall be construed to
create any partnership, joint venture, association, or special relationship
between Borrower, any Loan Party, and Administrative Agent or any Lender or in
any way make Administrative Agent or any Lender a co-principal with Borrower or
any Loan Party with reference to the Property or otherwise. In no event shall
Administrative Agent's or Lenders' rights and interests under the Loan Documents
be construed to give Administrative Agent or any Lender the right to control, or
be deemed to indicate that Administrative Agent or any Lender is in control of,
the business, properties, management or operations of any Loan Party.
6.17 RECORDS. The unpaid amount of the Loan and the amount of any
other credit extended by Administrative Agent or Lenders to or for the account
of each Loan Party set forth on the books and records of Administrative Agent
shall be presumptive evidence of the amount thereof owing and unpaid, but
failure to record any such amount on Administrative Agent's books and records
shall not limit or affect the obligations of each Loan Party under the Loan
Documents to make payments on the Loan when due.
CREDIT AGREEMENT - Page 59
6.18 COMMERCIAL PURPOSE. Each Loan Party warrants that the Loan is
being made solely to acquire or carry on a business or commercial enterprise,
and/or each Loan Party is a business or commercial organization. Each Loan Party
further warrants that all of the proceeds of the Loan shall be used for
commercial purposes and stipulates that the Loan shall be construed for all
purposes as a commercial loan, and is made for other than personal, family,
household or agricultural purposes.
6.19 SERVICE OF PROCESS. Each Loan Party hereby consents to process
being served in any suit, action, or proceeding instituted in connection with
the Loan by (a) the mailing of a copy thereof by certified mail, postage
prepaid, return receipt requested, to Borrower and (b) serving a copy thereof to
00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 Attention: Xxxxxx X.
Xxxxxxx III, the agent hereby designated and appointed by each Loan Party as
such Loan Party's agent for service of process. Each Loan Party irrevocably
agrees that such service shall be deemed to be service of process upon such Loan
Party in any such suit, action, or proceeding. Nothing in any other Loan
Document shall affect the right of Administrative Agent to serve process in any
manner otherwise permitted by Law and nothing in any other Loan Document will
limit the right of Administrative Agent on behalf of the Lenders otherwise to
bring proceedings against any Loan Party in the courts of any jurisdiction or
jurisdictions.
6.20 USA PATRIOT ACT NOTICE. Each Lender and Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies each Loan Party
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the "PATRIOT ACT"), it is required
to obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of each Loan Party and other
information that will allow such Lender or Administrative Agent, as applicable,
to identify each Loan Party in accordance with the Patriot Act.
6.21 ENTIRE AGREEMENT. The Loan Documents constitute the entire
understanding and agreement between each Loan Party, Administrative Agent and
Lenders with respect to the transactions arising in connection with the Loan,
and supersede all prior written or oral understandings and agreements between
each Loan Party, Administrative Agent and Lenders with respect to the matters
addressed in the Loan Documents. In particular, and without limitation, the
terms of any commitment letter, letter of intent or quote letter by
Administrative Agent or any Lender to make the Loan are merged into the Loan
Documents. Neither Administrative Agent nor any Lender has made any commitments
to extend the term of the Loan past its stated maturity date or to provide
Borrower or any Loan Party with financing except as set forth in the Loan
Documents. Except as incorporated in writing into the Loan Documents, there are
not, and were not, and no Persons are or were authorized by Administrative Agent
or any Lender to make, any representations, understandings, stipulations,
agreements or promises, oral or written, with respect to the matters addressed
in the Loan Documents.
6.22 DISPUTE RESOLUTION.
(a) ARBITRATION. Except to the extent expressly provided
below, any Dispute shall, upon the request of any party, be determined
by binding arbitration in accordance with the Federal Arbitration Act,
Xxxxx 0, Xxxxxx Xxxxxx Code (or if not applicable, the applicable state
law), the applicable rules for arbitration of disputes of
CREDIT AGREEMENT - Page 60
JAMS LLC, a Delaware limited liability company, or any successor thereof
("JAMS") and the "Special Rules" set forth below. In the event of any
inconsistency, the Special Rules shall control. The filing of a court
action is not intended to constitute a waiver of the right of Borrower,
any other Loan Party, Administrative Agent or Lender, including the
suing party, thereafter to require submittal of the Dispute to
arbitration. Any party to this Agreement may bring an action, including
a summary or expedited proceeding, to compel arbitration of any Dispute
in any court having jurisdiction over such action. For the purposes of
this dispute resolution provision only, the terms "party" and "parties"
shall include any parent corporation, subsidiary or affiliate of
Administrative Agent involved in the servicing, management or
administration of any obligation described in or evidenced by this
Agreement, together with the officers, employees, successors and assigns
of each of the foregoing.
(b) SPECIAL RULES.
(i) The arbitration shall be conducted in Dallas,
Texas.
(ii) The arbitration shall be administered by JAMS,
who will appoint an arbitrator; if JAMS is unable or legally
precluded from administering the arbitration, then the American
Arbitration Association will serve. All Disputes shall be
determined by one arbitrator; however, if the amount in
controversy in a Dispute exceeds Five Million Dollars
($5,000,000), upon the request of any party, the Dispute shall
be decided by three arbitrators (for purposes of this Agreement,
referred to collectively as the "arbitrator").
(iii) All arbitration hearings will be commenced
within ninety (90) days of the demand for arbitration and
completed within ninety (90) days from the date of commencement;
provided, however, that upon a showing of good cause, the
arbitrator shall be permitted to extend the commencement of such
hearing for up to an additional sixty (60) days.
(iv) The judgment and the award, if any, of the
arbitrator shall be issued within thirty (30) days of the close
of the hearing. The arbitrator shall provide a concise written
statement setting forth the reasons for the judgment and for the
award, if any. The arbitration award, if any, may be submitted
to any court having jurisdiction to be confirmed and enforced,
and such confirmation and enforcement shall not be subject to
arbitration.
(v) The arbitrator will have the authority to decide
whether any Dispute is barred by the statute of limitations and,
if so, to dismiss the arbitration on that basis. For purposes of
the application of the statute of limitations, the service on
JAMS under applicable JAMS rules of a notice of Disputes is the
equivalent of the filing of a lawsuit.
(vi) Any dispute concerning this arbitration
provision, including any such dispute as to the validity or
enforceability of this
CREDIT AGREEMENT - Page 61
provision, or whether a Dispute is arbitrable, shall be
determined by the arbitrator.
(vii) The arbitrator shall have the power to award
legal fees and costs pursuant to the terms of this Agreement.
(viii) No arbitration arising out of or relating to
this Agreement shall include, by consolidation, joinder or in
any other manner, an additional person or entity not a party to
this Agreement, except by written consent containing a specific
reference to this Agreement signed by the undersigned and any
other person or entity sought to be joined. Consent to
arbitration involving an additional person or entity shall not
constitute consent to arbitration of any claim, dispute or other
matter in question not described in the written consent or with
a person or entity not named or described therein. The foregoing
agreement to arbitrate and other agreements to arbitrate with an
additional person or entity duly consented to by the parties to
this Agreement shall be specifically enforceable in accordance
with applicable law in any court having jurisdiction thereof.
(c) RESERVATIONS OF RIGHTS. Nothing in this Agreement shall
be deemed to (i) limit the applicability of any otherwise applicable
statutes of limitation and any waivers contained in this Agreement, (ii)
apply to or limit the right of (A) any Lender (subject to SECTION 1.8
and ARTICLE 5) to exercise self help remedies such as (but not limited
to) setoff, or (B) Administrative Agent on behalf of the Lenders to
foreclose judicially or nonjudicially against any real or personal
property collateral, or to exercise judicial or nonjudicial power of
sale rights, (C) Administrative Agent on behalf of the Lenders to obtain
from a court provisional or ancillary remedies such as (but not limited
to) injunctive relief, writ of possession, prejudgment attachment, or
the appointment of a receiver, or (D) Administrative Agent or any Lender
to pursue rights against a party to this Agreement in a third-party
proceeding in any action brought against Administrative Agent or such
Lender in a state, federal or international court, tribunal or hearing
body (including actions in specialty courts, such as bankruptcy and
patent courts), or (iii) limit the right of any Loan Party to obtain
from a court provisional or ancillary remedies (such as but not limited
to injunctive relief), which right may be exercised by such Loan Party
before or during the pendency of any arbitration proceeding brought
pursuant to this Agreement. Administrative Agent or a Lender or a Loan
Party, as applicable, may exercise the rights set forth in clauses (A)
through (D), inclusive, before, during or after the pendency of any
arbitration proceeding brought pursuant to this Agreement. Neither the
exercise of self help remedies nor the institution or maintenance of an
action for foreclosure or provisional or ancillary remedies shall
constitute a waiver of the right of any party, including the claimant in
any such action, to arbitrate the merits of the Dispute occasioning
resort to such remedies. No provision in the Loan Documents regarding
submission to jurisdiction and/or venue in any court is intended or
shall be construed to be in derogation of the provisions in any Loan
Document for arbitration of any Dispute.
(d) CONFLICTING PROVISIONS FOR DISPUTE RESOLUTION. If there
is any conflict between the terms, conditions and provisions of this
Section and those of any
CREDIT AGREEMENT - Page 62
other provision or agreement for arbitration or dispute resolution, the
terms, conditions and provisions of this Section shall prevail as to any
Dispute arising out of or relating to (i) this Agreement, (ii) any other
Loan Document, (iii) any related agreements or instruments, or (iv) the
transaction contemplated herein or therein (including any claim based on
or arising from an alleged personal injury or business tort). In any
other situation, if the resolution of a given Dispute is specifically
governed by another provision or agreement for arbitration or dispute
resolution, the other provision or agreement shall prevail with respect
to said Dispute.
(e) JURY TRIAL WAIVER IN ARBITRATION. By agreeing to this
Section, the parties irrevocably and voluntarily waive any right they
may have to a trial by jury in respect of any Dispute.
6.23 WAIVER OF JURY TRIAL. WITHOUT INTENDING IN ANY WAY TO LIMIT THE
PARTIES' AGREEMENT TO ARBITRATE ANY "DISPUTE" (FOR PURPOSES OF THIS SECTION, AS
DEFINED ABOVE) AS SET FORTH IN THIS AGREEMENT, TO THE EXTENT ANY "DISPUTE" IS
NOT SUBMITTED TO ARBITRATION OR IS DEEMED BY THE ARBITRATOR OR BY ANY COURT WITH
JURISDICTION TO BE NOT ARBITRABLE OR NOT REQUIRED TO BE ARBITRATED, THE PARTIES
HERETO WAIVE TRIAL BY JURY IN RESPECT OF ANY SUCH "DISPUTE" AND ANY ACTION ON
SUCH "DISPUTE." THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY THE
PARTIES HERETO, AND THE PARTIES HERETO HEREBY REPRESENT THAT NO REPRESENTATIONS
OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON OR ENTITY TO INDUCE THIS WAIVER
OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT. THE
PARTIES HERETO ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY
PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL. EACH PARTY
HERETO FURTHER REPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE
SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL
COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO
DISCUSS THIS WAIVER WITH COUNSEL.
THE WRITTEN 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.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
CREDIT AGREEMENT - Page 63
CREDIT AGREEMENT - Signature Page
CREDIT AGREEMENT - Signature Page
EXECUTED and DELIVERED as of the date set forth above.
ADDRESS FOR NOTICES FOR BORROWER BORROWER:
AND SUBSIDIARY GUARANTORS:
BEHRINGER HARVARD REIT I, INC.,
c/o Behringer Harvard Funds a Maryland corporation
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000 By:
---------------------------------------
Attention: Xxxxxx X. Xxxxxxx, III Name: Xxxxxx X. Xxxxxxx, III
Title: Executive Vice President
The Federal Tax Identification
Number of Borrower: 00-0000000
SUBSIDIARY GUARANTOR:
BEHRINGER HARVARD CYPRUS, LLC,
a Colorado limited liability company
By: Behringer Harvard Operating
Partnership I LP, a Texas
limited partnership, its sole
\ member
By: Behringer Harvard REIT Inc.,
a Maryland corporation, its
sole general partner
By:
-----------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Executive Vice President
SUBSIDIARY GUARANTOR:
BEHRINGER HARVARD OPERATING PARTNERSHIP
I LP, a Texas limited partnership, its
sole member
By: Behringer Harvard REIT Inc., a
Maryland corporation, its sole
general partner
By:
----------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Executive Vice President
CREDIT AGREEMENT - Signature Page
ADMINISTRATIVE AGENT'S ADDRESS FOR BANK OF AMERICA, N.A., individually as
NOTICES: Administrative Agent and a Lender
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Real Estate Loan By:
Administration -------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
CREDIT AGREEMENT - Signature Page
EXHIBIT "A"
DESCRIPTION OF PROPERTY
1. ENGLEWOOD CO PROJECT:
Lot 12, a Resubdivision at Panorama Office Park I, the Plat of which was
recorded October 9, 1987, at Reception No. 2897686, Plat Book 96 at
Pages 36 and 37, County of Arapahoe, State of Colorado.
Exhibit A - Legal Description
EXHIBIT "B"
DEFINITIONS AND FINANCIAL STATEMENTS
1. DEFINITIONS. As used in this Agreement and the attached
exhibits, the following terms shall have the following meanings:
"ADVANCE" shall mean all sums outstanding under each Note and an advance
of the Loan hereafter made in accordance with EXHIBIT F.
"ADVANCE REQUEST" means a notice substantially in the form of EXHIBIT
F-1 attached hereto with respect to a proposed Advance hereunder the proceeds of
which shall be used for the purposes permitted by this Agreement. Each Advance
Request shall be executed by the chief executive officer, the chief financial
officer or the treasurer of Borrower or by any executive officer of Borrower
designated by any of the above-described officers on behalf of Borrower in a
writing delivered to Administrative Agent and specify (i) the proposed Funding
Date (which shall be a Business Day), (ii) the amount of Advance requested,
(iii) whether such Advances shall be Base Rate Principal or LIBOR Rate
Principal, (iv) if such Advance is LIBOR Rate Principal, the initial Interest
Period applicable thereto, and (v) that the amount of the proposed Advance will
not cause, the outstanding principal balance of the Loan to exceed the lesser of
(B) the Aggregate Commitments, or (B) the Maximum Commitment Amount then in
effect.
"ADJUSTED LIBOR RATE" means the quotient (rounded upwards to the next
higher 1/100 of 1%) obtained by dividing (i) the applicable London Interbank
Offered Rate by (ii) 1.00 minus the LIBOR Reserve Percentage, where,
"LONDON INTERBANK OFFERED RATE" means, with respect to any
applicable Interest Period, the rate per annum appearing on Reuters
LIBOR01 Page (or any successor page) as the British Bankers' Association
Libor Rate for deposits in U.S. Dollars (for delivery on the first day
of such Interest Period) at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "London Interbank Offered Rate" shall mean, for any
Interest Period therefor, the rate per annum appearing on such other
page or service selected by Administrative Agent that shows the British
Bankers' Association Libor Rate for deposits in U.S. Dollars (for
delivery on the first day of such Interest Period) at approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest Period;
PROVIDED, HOWEVER, if more than one rate is specified on such other page
or service, the applicable rate shall be the arithmetic mean of all such
rates; and
"LIBOR RESERVE PERCENTAGE" means, with respect to any applicable
Interest Period, for any day that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board of Governors
of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including basic, supplemental, emergency,
special and marginal reserves) generally applicable to financial
institutions regulated by the Federal Reserve Board whether or not
applicable to any Lender, in respect of "Eurocurrency liabilities" (or
in respect of any other category of liabilities
Exhibit B - Page 1
which includes deposits by reference to which the interest rate on LIBOR
Rate Principal is determined), whether or not any Lender has any
Eurocurrency liabilities. The LIBOR Rate shall be adjusted automatically
as of the effective date of each change in the LIBOR Reserve Percentage.
"ADMINISTRATIVE AGENT" means Bank of America, N.A., in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"ADMINISTRATIVE AGENT ADVANCES" has the meaning set forth in SECTION
1.14 of this Agreement.
"ADMINISTRATIVE AGENT'S OFFICE" means Administrative Agent's address
and, as appropriate, account as set forth on the Schedule of Lenders, or such
other address or account as Administrative Agent hereafter may from time to time
notify Borrower and Lenders.
"ADMINISTRATIVE AGENT'S TIME" means the time of day observed in the city
where Administrative Agent's Office is located.
"ADVANCE TERMINATION DATE" means the date which is ten (10) days prior
to the Maturity Date, as the same may be extended pursuant to this Agreement.
"AFFILIATE" means any Person directly or indirectly through one or more
intermediaries controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 10% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors or managing general partners or the
equivalent; or (b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"AGENT-RELATED PERSONS" means Administrative Agent, together with its
Affiliates and the officers, directors, employees, agents and attorneys-in-fact
of such Persons and Affiliates.
"AGGREGATE COMMITMENTS" means the Commitments of all the Lenders.
"AGREEMENT" means this Credit Agreement dated as of the date first
written above by and among each Loan Party, Administrative Agent and the
Lenders, as it may be amended, restated, supplemented or otherwise modified from
time to time.
"ALTA" means the American Land Title Association or any successor
thereto.
"ANNUALIZED ADJUSTED EXPENSES" means the GREATER of (i) the aggregate,
actual cash operating expenses of the Property (excluding non-cash expenses such
as depreciation and expenses paid from reserves) calculated for each calendar
month during the trailing twelve (12) month period, but: (a) not including
payments of principal or interest on the Loan during such period; and (b)
adjusted to include (but without duplication of the above) appropriate monthly
accruals for the Property for: (1) a management fee of at least four percent
(4%) per annum, (2) periodic expenses such as property taxes and insurance, and
(3) a reserve (not less than $0.15 per square foot of leaseable space in the
Improvements per annum) for capital repairs and
Exhibit B - Page 2
replacements, or (ii) the projected operating expenses per square foot of
leaseable space in the Improvements, annualized, as determined by Administrative
Agent pursuant to a current Appraisal of the Property, prepared by an appraiser
acceptable to Administrative Agent, at Borrower's expense, and satisfactory to
Administrative Agent in all respects, as reviewed, adjusted and approved by
Administrative Agent in accordance with its customary internal appraisal
requirements.
"ANNUALIZED ADJUSTED INCOME" means, for any forward, twelve (12) month
period, the projected base rental income, plus Tenant Reimbursements, to be paid
to Borrower or any Subsidiary Guarantor during or in respect of such period
pursuant to the terms of Qualified Leases in effect as of the commencement of
such period, adjusted for each calendar month during such period as necessary to
reflect a vacancy factor equal to the GREATER of (i) the actual vacancy of the
Property or (ii) ten percent (10%). Annualized Adjusted Income shall not include
amounts paid by Tenants pursuant to any Leases that do not constitute Qualified
Leases or any security deposits, late fees or charges, and other penalties and
charges other than the monthly gross rental payable by the Tenant under each
Qualified Lease and Tenant Reimbursements. Annualized Adjusted Income shall not
include any free rent or prepaid rent received from any Tenant under the terms
of any Qualified Lease which is not allocable to the rent that would otherwise
be payable during such period.
"APPRAISAL" means, with respect to each Project, a written appraisal of
such Project prepared by an appraiser acceptable to Administrative Agent and
requested by Administrative Agent, in each case in form, content and methodology
satisfactory to Administrative Agent and in compliance with all applicable legal
and regulatory requirements (including the requirements of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 (or any successor
statute thereto), and the regulations promulgated thereunder).
"APPROVED ENVIRONMENTAL CONSULTANT" means any qualified, independent
environmental consultant reasonably acceptable to Administrative Agent.
"APPROVED LEASE" is defined in EXHIBIT I attached hereto.
"AS-IS VALUE" means, as to each Project, an amount equal to the "as-is"
value of such Project, as established by Administrative Agent, as reasonably
determined on the basis of the most current Appraisal therefor, which value may
not necessarily be the same as that set forth in the Appraisal.
"ASSIGNMENT OF RENTS AND LEASES" means each Assignment of Leases and
Rents and Other Income executed and acknowledged by a Subsidiary Guarantor, as
applicable, in favor of Administrative Agent, for the benefit of the Lenders, in
form acceptable to Administrative Agent, as any such Assignment of Rents and
Leases may be amended, restated, supplemented, consolidated, extended or
otherwise modified from time to time in accordance with the terms thereof and
hereof.
"ASSIGNMENT AND ASSUMPTION" means an Assignment and Assumption
substantially in the form of EXHIBIT L.
Exhibit B - Page 3
"AUTHORIZATION" means any authorization, approval, franchise, license,
variance, land use entitlement, sewer and waste water discharge permit, storm
water discharge permit, air pollution authorization to operate, certificate of
occupancy, municipal water and sewer connection permit, and any like or similar
permit now or hereafter required for the construction or renovation of any
Improvements located on any Project or for the use, occupancy or operation of
any Project and all amendments, modifications, supplements and addenda thereto.
"BASE RATE" means, on any day, a simple rate per annum equal to the sum
of the Prime Rate for that day. Without notice to Borrower or anyone else, the
Base Rate shall automatically fluctuate upward and downward as and in the amount
by which the Prime Rate fluctuates.
"BASE RATE PRINCIPAL" means, at any time, the Principal Debt minus the
portion, if any, of such Principal Debt which is LIBOR Rate Principal.
"BORROWER" has the meaning set forth in the introductory paragraph of
this Agreement.
"BORROWING BASE" means, as of any date of determination by
Administrative Agent, an amount equal to sixty percent (60%) of the most current
"As-Is Value" of each Project, calculated on an aggregate basis.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where Administrative Agent's Office is located or, if
such day relates to any LIBOR Rate, means any such day on which dealings in
dollar deposits are conducted by and between banks in the London, England
interbank eurodollar market.
"CASH" means money, currency, or a credit balance in a Deposit Account.
"CASH EQUIVALENTS" means, as of any date of determination, (a)
marketable securities (i) issued or directly and unconditionally guaranteed as
to interest and principal by the United States of America, or (ii) issued by any
agency of the United States of America the obligations of which are backed by
the full faith and credit of the United States of America, in each case maturing
within one (1) year after such date, (b) marketable direct obligations issued by
any state of the United States of America or any political subdivision of any
such state or any public instrumentality thereof, in each case maturing within
one (1) year after such date and having, at the time of the acquisition thereof,
the highest rating obtainable from either S&P or Xxxxx'x, (c) commercial paper
maturing no more than one (1) year from the date of creation thereof and having,
at the time of the acquisition thereof, a rating of at least A-2 from S&P or at
least P-2 from Xxxxx'x, (d) certificates of deposit or bankers' acceptances
maturing within one (1) year after such date and issued or accepted by any
Lender or by any commercial bank organized under the laws of the United States
of America or any state thereof or the District of Columbia that (i) is at least
"adequately capitalized" (as defined in the regulations of its primary federal
banking regulator), and (ii) has Tier I capital (as defined in such regulations)
of not less than $100,000,000, and (e) shares of any money market mutual fund
that has (i) at least ninety-five percent (95%) of its assets invested
continuously in the types of investments referred to in clauses (a) and (b)
above, (ii) net assets of not less than $500,000,000, and (iii) the highest
rating obtainable from either S&P or Xxxxx'x.
Exhibit B - Page 4
"CLAIMS" means any and all claims, demands, liabilities (including
strict liability), losses, damages, causes of action, judgments, penalties,
fines, costs and expenses (including fees, costs and expenses of attorneys,
consultants, contractors, experts and laboratories), of any and every kind of
character, contingent or otherwise, matured or unmatured, known or unknown,
foreseeable or unforeseeable.
"CLOSING DATE" means the date of this Agreement.
"COLLATERAL" means all property, whether real, personal or mixed,
tangible or intangible, owned or to be owned or leased or to be leased or
otherwise held or to be held by any of Subsidiary Guarantor or in which any
Subsidiary Guarantor has or shall acquire an interest, to the extent of
Borrower's or Subsidiary Guarantor's interest therein, now or hereafter granted,
assigned, transferred, mortgaged or pledged to Administrative Agent and/or the
Lenders or in which a lien is granted to Administrative Agent and/or the Lenders
to secure all or any part of the Obligations, whether pursuant to the Security
Documents or otherwise, including the Mortgaged Property, the Leases and Rents,
and any and all proceeds of the foregoing.
"COMMITMENT" means, as to each Lender, its obligation to advance its Pro
Rata Share of the Loan in an aggregate principal amount not exceeding the amount
set forth opposite such Lender's name on the Schedule of Lenders at any one time
outstanding, as such amount may be reduced or adjusted from time to time in
accordance with this Agreement.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of EXHIBIT E annexed hereto delivered to Administrative Agent by Borrower
pursuant to EXHIBIT B.
"CYPRUS MINERALS" means Cyprus Minerals Company, a Delaware corporation.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"DEEMED PRINCIPAL BALANCE" means, as of any date, the maximum principal
amount of the Loan, less any permanent limitation on the Commitments of Lenders
hereunder.
"DEFAULT" has the meaning set forth in SECTION 4.1 of this Agreement.
"DEFAULTING LENDER" means a Lender that fails to pay its Pro Rata Share
of a Payment Amount within five (5) Business Days after notice from
Administrative Agent, until such Lender cures such failure as permitted in this
Agreement.
"DEFAULTING LENDER AMOUNT" means the Defaulting Lender's Pro Rata Share
of a Payment Amount.
"DEFAULTING LENDER PAYMENT AMOUNTS" means a Defaulting Lender Amount
plus interest from the date such Defaulting Lender Amount was funded by
Administrative Agent and/or an Electing Lender, as applicable, to the date such
amount is repaid to Administrative Agent and/or
Exhibit B - Page 5
such Electing Lender, as applicable, at the rate per annum applicable to such
Defaulting Lender Amount under the Loan or otherwise at the Base Rate.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook, or like
account with a bank, savings and loan association, credit union, or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"DISPUTE" means any controversy, claim or dispute between or among the
parties to this Agreement, including any such controversy, claim or dispute
arising out of or relating to (a) this Agreement, (b) any other Loan Document,
(c) any related agreements or instruments, or (d) the transaction contemplated
herein or therein (including any claim based on or arising from an alleged
personal injury or business tort).
"ELIGIBLE ASSIGNEE" has the meaning set forth in SECTION 6.5.
"ENGINEER" means any reputable engineer approved by Administrative Agent
(not to be unreasonably withheld) licensed as such in the state in which the
applicable Project in question is located.
"ENGINEERING REPORT" means, with respect to any Project, a written
report prepared by an Engineer, describing and analyzing the physical condition
of the Improvements comprising part of such Project, describing any necessary or
recommended repairs, estimating the cost of such repairs and otherwise in form
and substance reasonably satisfactory to Administrative Agent.
"ENGLEWOOD CO PROJECT" is defined in SECTION 1.2 hereof.
"ENVIRONMENTAL CLAIM" means any investigative, enforcement, cleanup,
removal, containment, remedial or other private or governmental or regulatory
action at any time threatened, instituted or completed pursuant to any
applicable Environmental Requirement (hereinafter defined), against any Loan
Party or against or with respect to the Property or any condition, use or
activity on the Property (including any such action against Administrative Agent
or any Lender), and any claim at any time threatened or made by any Person
against any Loan Party or against or with respect to the Property or any
condition, use or activity on the Property (including any such claim against
Administrative Agent or any Lender), relating to damage, contribution, cost
recovery, compensation, loss or injury resulting from or in any way arising in
connection with any Hazardous Material (hereinafter defined) or any
Environmental Requirement.
"ENVIRONMENTAL DAMAGES" means any and all Claims made, incurred,
suffered, brought, or imposed at any time and from time to time, whether before
or after the Release Date (hereinafter defined) and arising in whole or in part
from (1) the presence of any Hazardous Material on the Property, or any escape,
seepage, leakage, spillage, emission, release, discharge or disposal of any
Hazardous Material on or from the Property, or the migration or release or
threatened migration or release of any Hazardous Material to, from or through
the Property, on or before the Release Date; or (2) any act, omission, event or
circumstance existing or occurring in connection with the handling, treatment,
containment, removal, storage, decontamination, clean-up, transport or disposal
of any Hazardous Material which is at any time on or before the Release Date
present on the Property; or (3) the breach of any representation, warranty,
covenant
Exhibit B - Page 6
or agreement contained in this Agreement because of any event or condition
occurring or existing on or before the Release Date; or (4) any violation on or
before the Release Date, of any Environmental Requirement in effect on or before
the Release Date, regardless of whether any act, omission, event or circumstance
giving rise to the violation constituted a violation at the time of the
occurrence or inception of such act, omission, event or circumstance; or (5) any
Environmental Claim, or the filing or imposition of any environmental lien
against the Property, because of, resulting from, in connection with, or arising
out of any of the matters referred to in subparagraphs (1) through (4)
preceding; and regardless of whether any of the foregoing subparagraphs (1)
through (5) was caused by Borrower or a tenant or subtenant, or a prior owner of
the Property or its tenant or subtenant, or any third party, including but not
limited to (i) injury or damage to any Person, property or natural resource
occurring on or off of the Property, including but not limited to the cost of
demolition and rebuilding of any improvements on real property; (ii) the
investigation or remediation of any such Hazardous Material or violation of
Environmental Requirement, including but not limited to the preparation of any
feasibility studies or reports and the performance of any cleanup, remediation,
removal, response, abatement, containment, closure, restoration, monitoring or
similar work required by any Environmental Requirement or necessary to have full
use and benefit of the Property as contemplated by the Loan Documents (including
any of the same in connection with any foreclosure action or transfer in lieu
thereof); (iii) all liability to pay or indemnify any Person or governmental
authority for costs expended in connection with any of the foregoing; (iv) the
investigation and defense of any claim, whether or not such claim is ultimately
defeated; and (v) the settlement of any claim or judgment.
"ENVIRONMENTAL LAW" means any federal, state or local law, statute,
ordinance, code, rule, regulation, license, authorization, decision, order,
injunction, decree, or rule of common law, and any judicial interpretation of
any of the foregoing, which pertains to health, safety, any Hazardous Material,
or the environment (including but not limited to ground or air or water or noise
pollution or contamination, and underground or above ground tanks) and shall
include without limitation, the Solid Waste Disposal Act, 42 U.S.C. ss. 6901 ET
SEQ.; the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, 42 U.S.C. ss. 9601 ET SEQ. ("CERCLA"), as amended by the Superfund
Amendments and Reauthorization Act of 1986 ("XXXX"); the Hazardous Materials
Transportation Act, 49 U.S.C. ss. 1801 ET SEQ.; the Federal Water Pollution
Control Act, 33 U.S.C. ss. 1251 ET SEQ.; the Clean Air Act, 42 U.S.C. ss. 7401
ET SEQ.; the Toxic Substances Control Act, 15 U.S.C. ss. 2601 ET SEQ.; the Safe
Drinking Water Act, 42 U.S.C. ss. 300f et SEQ.; and any other state or federal
environmental statutes, and all rules, regulations, orders and decrees now or
hereafter promulgated under any of the foregoing, as any of the foregoing now
exist or may be changed or amended or come into effect in the future.
"ENVIRONMENTAL REQUIREMENT" means any Environmental Law (herein
defined), agreement or restriction (including but not limited to any condition
or requirement imposed by any insurance or surety company), as the same now
exists or may be changed or amended or come into effect in the future, which
pertains to health, safety, any Hazardous Material, or the environment,
including but not limited to ground or air or water or noise pollution or
contamination, and underground or aboveground tanks.
"EXCUSABLE DELAY" means a delay caused by unusually adverse weather
conditions, fire, earthquake or other acts of God, strikes, lockouts, acts of
public enemy, riots or insurrections or
Exhibit B - Page 7
any other unforeseen circumstances or events beyond the control of any Loan
Party (except financial circumstances or events or matters which may be resolved
by the payment of money), and as to which such Loan Party notifies
Administrative Agent in writing within five (5) days after obtaining knowledge
of such occurrence; PROVIDED, HOWEVER, no Excusable Delay shall suspend or xxxxx
any obligation of any Loan Party or any other Person to pay any money.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upwards to the next higher 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank on the Business Day next succeeding such day; PROVIDED
that (a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to Bank of America on such day on such
transactions as determined by Administrative Agent.
"FINANCIAL STATEMENTS" means, for each reporting party, a balance sheet,
income statement, statements of cash flow and amounts and sources of contingent
liabilities, a reconciliation of changes in equity and liquidity verification,
and unless Administrative Agent otherwise consents, consolidated and
consolidating statements if the reporting party is a holding company or a parent
of a Subsidiary. For purposes of this definition and any covenant requiring the
delivery of Financial Statements, each party for whom Financial Statements are
required is a "reporting party" and a specified period to which the required
Financial Statements relate is a "reporting period". Notwithstanding the
foregoing, the financial statements filed by the Borrower in its periodic
reports under the Securities Exchange Act of 1934, as amended, shall be deemed
to meet the requirements of this paragraph as to Borrower and its Subsidiaries.
"FUNDING DATE" means the date on which an Advance of the Loan shall
occur.
"GAAP" means generally accepted accounting principles set forth in
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board, in each case as the same are
applicable to the circumstances as of the date of determination.
"GUARANTY" means the Guaranty executed by any Subsidiary Guarantor, in
the form approved by Administrative Agent, as such Guaranty may be amended,
restated, supplemented or otherwise modified from time to time in accordance
with the terms hereof and thereof.
"HAZARDOUS MATERIAL" means any substance, whether solid, liquid or
gaseous: which is listed, defined or regulated as a "hazardous substance",
"hazardous waste" or "solid waste", or otherwise classified as hazardous or
toxic, in or pursuant to any Environmental Requirement; or which is or contains
asbestos, radon, any polychlorinated biphenyl, urea formaldehyde foam
insulation, explosive or radioactive material, or motor fuel or other petroleum
hydrocarbons; or which causes or poses a threat to cause a contamination or
nuisance on the Property or any adjacent property or a hazard to the environment
or to the health or safety of Persons on the Property.
Exhibit B - Page 8
"IMPROVEMENTS" means all buildings, structures, fixtures, tenant
improvements and other improvements of every kind and description now or
hereafter located in or on or attached to any Land, including all building
materials, water, sanitary. and storm sewers, drainage, electricity, steam, gas,
telephone and other utility facilities, parking areas, roads, driveways, walks
and other site improvements; and all additions and betterments thereto and all
renewals, substitutions and replacements thereof.
"INDEBTEDNESS" means any and all indebtedness to Administrative Agent,
or Lenders evidenced, governed or secured by, or arising under, any of the Loan
Documents, including the Loan.
"INDEMNIFIED LIABILITIES" has the meaning set forth in SECTION 6.1.
"INDEMNIFIED PARTIES" means (i) Administrative Agent on behalf of itself
and the Lenders, and each Lender; (ii) the Trustee(s) under any Mortgage (the
"TRUSTEE"); (ii) any Persons or entities owned or controlled by, owning or
controlling, or under common control or affiliated with Lender and/or Trustee;
(iii) any participants in the Loan; (iv) the directors, officers, partners,
employees and agents of Administrative Agent or any Lender and/or Trustee,
and/or such Persons; and (v) the heirs, personal representatives, successors and
assigns of each of the foregoing Persons.
"INTEREST PERIOD" means with respect to any LIBOR Rate Principal, the
period commencing on the date such LIBOR Rate Principal is disbursed or on the
date on which the Principal Debt or any portion thereof is converted into or
continued as such LIBOR Rate Principal, and ending on the date one (1), two (2),
or three (3) months thereafter, as elected by Borrower in the applicable Rate
Election Notice; provided that:
(a) Each Interest Period must commence on a Business Day;
(b) In the case of the continuation of LIBOR Rate Principal,
the Interest Period applicable after the continuation of such LIBOR Rate
Principal shall commence on the last day of the preceding Interest
Period;
(c) If any Interest Period applicable to LIBOR Rate
Principal would otherwise end on a day which is not a Business Day, that
Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest Period
shall end on the next preceding Business Day;
(d) Any Interest Period applicable to LIBOR Rate Principal
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 last full calendar month at the end of such Interest Period;
and
(e) No Interest Period shall extend beyond the Maturity
Date, and any Interest Period which begins before the Maturity Date and
would otherwise end after the Maturity Date shall instead end on the
Maturity Date.
Exhibit B - Page 9
"LAND" means the real property located in the towns, counties and states
more particularly described in Exhibit A to each Mortgage, together with all
strips and gores within or adjoining such real property, all estate, right,
title, interest, claim or demand whatsoever of Borrower or any Subsidiary
Guarantor in the streets, roads, sidewalks, alleys, and ways adjacent thereto
(whether or not vacated and whether public or private, and whether open or
proposed), all vaults or chutes adjoining such land, all of the tenements,
hereditaments, easements, reciprocal easement agreements, rights to the use of
common drive entries, rights-of-way and other rights, privileges and
appurtenances thereunto belonging or in any way pertaining thereto, all
reversions, remainders, dower and right of dower, curtesy and right of curtesy,
all of the air space and right to use said air space above such property, all
transferable development rights arising therefrom or transferred thereto, all
water and water rights (whether riparian, appropriative or otherwise, and
whether or not appurtenant) and shares of stock evidencing the same, all
mineral, mining, gravel, geothermal, oil, gas, hydrocarbon substances and other
rights to produce or share in the production of anything related to such
property, all drainage, crop, timber, agricultural, and horticultural rights
with respect to such property, and all other appurtenances appurtenant to such
property, including without limitation, any now or hereafter belonging or in
anywise appertaining thereto, and all claims or demands of any Subsidiary
Guarantor, either at law or in equity, in possession or expectancy, now or
hereafter acquired, of, in or to the same.
"LAWS" means all statutes, laws, rules, regulations, ordinances, orders,
decisions, writs, judgments, decrees and injunctions of Tribunals (including
Environmental Laws) affecting Administrative Agent, any Lender, any Loan Party,
or the Collateral or any part thereof, as the case may be (including the
acquisition, development, construction, renovation, occupancy, use, improvement,
alteration, management, operation, maintenance, repair or restoration thereof),
whether now or hereafter enacted and in force, and all Authorizations relating
thereto, and all covenants, conditions and restrictions contained in any
instruments, either of record or known to Borrower or any Subsidiary Guarantor,
at any time in force affecting the Property or any part thereof, including any
such covenants, conditions and restrictions which may (i) require improvements,
repairs or alterations in or to such Property or any part thereof or (ii) in any
way limit the use and enjoyment thereof.
"LEASE" means any leases, licenses, concession agreements, franchise and
other occupancy agreements and other agreements demising, leasing or granting
rights of possession or use or, to the extent of the interest therein of any
Loan Party, any sublease, subsublease or sublicense, which now or hereafter may
affect the Property or any part thereof or interest therein, including any
agreement relating to a loan or other advance of funds made in connection with
any such lease, license, concession agreement, franchise or other occupancy
agreement and such sublease, subsublease or sublicense, and every amendment,
restatement, supplement consolidation or other modification of or other
agreement relating to or entered into in connection with such lease, license,
concession agreement, franchise or other occupancy agreement and such sublease,
subsublease or sublicense, and every guarantee of the performance and observance
of the covenants, conditions and agreements to be performed and observed by the
other party thereto, and any guarantees of leasing commissions.
"LEASING COMMISSIONS" means leasing commissions, fees or similar
compensation payable by Borrower in connection with Approved Leases.
Exhibit B - Page 10
"LENDER" means each lender from time to time party to this Agreement.
"LENDING OFFICE" means, as to any Lender, the office or offices of such
Lender described as such on the SCHEDULE OF LENDERS, or such other office or
offices as such Lender may from time to time notify Borrower and Administrative
Agent.
"LIBOR MARGIN" means 1.75% per annum.
"LIBOR RATE" means for any applicable Interest Period for any LIBOR Rate
Principal, a simple rate per annum equal to the sum of the LIBOR Margin plus the
Adjusted LIBOR Rate.
"LIBOR RATE ELECTION" means an election by Borrower of an applicable
LIBOR Rate in accordance with this Agreement.
"LIBOR RATE PRINCIPAL" means any portion of the Principal Debt which
bears interest at an applicable LIBOR Rate at the time in question.
"LIEN" means any lien (including any lien or security title granted
pursuant to any mortgage, deed of trust or deed to secure debt), pledge,
hypothecation, assignment, security interest, charge, levy, attachment,
restraint or encumbrance of any kind (including any conditional sale or other
title retention agreement, any lease in the nature thereof, and any agreement to
give any security interest) and any option, trust or other preferential
arrangement having the practical effect of any of the foregoing.
"LIQUID ASSETS" means, with respect to Borrower, as of any Test Date,
the sum of Borrower's Cash and Cash Equivalents (in each case not subject to any
Liens).
"LOAN" means the aggregate of all Advances made by the Lenders to
Borrower pursuant to the terms of this Agreement.
"LOAN DOCUMENTS" means this Agreement (including all exhibits), the
Notes, the Security Documents, each Guaranty, each Advance Request, and such
other documents evidencing, securing or pertaining to the Loan as shall, from
time to time, be executed and/or delivered by any other Loan Party to
Administrative Agent, on behalf of the Lenders, pursuant to this Agreement, as
the same may be amended, modified, restated, replaced and supplemented from time
to time.
"LOAN PARTY" means, collectively, Borrower and each Subsidiary Guarantor
now or hereafter made a party to this Agreement.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in, or a
material adverse effect upon, the Property, or the operations, business,
properties, liabilities (actual and contingent) financial condition of Borrower
and the Subsidiary Guarantors, taken as a whole; (b) a material impairment of
the ability of any party to the Loan Documents to perform its obligations under
any Loan Document to which it is a party; or (c) a material adverse effect upon
the legality, validity, binding effect or enforceability against any party to
the Loan Documents of any Loan Document to which it is a party.
Exhibit B - Page 11
"MATURITY DATE" means December 30, 2006, as it may be earlier terminated
in accordance with the terms hereof or extended in accordance with the
provisions of SECTION 1.5 hereof.
"MAXIMUM COMMITMENT AMOUNT" is defined in SECTION 1.3 hereof.
"MOODY'S" means Xxxxx'x Investors Service, Inc. or, if Moody's no longer
publishes ratings, another ratings agency acceptable to Administrative Agent.
"MORTGAGE" means each Mortgage, Assignment of Rents, Security Agreement
and Fixture Filing and each Mortgage, Assignment of Rents, Security Agreement
and Fixture Filing and each Deed to Secure Debt, Assignment of Rents, Security
Agreement and Fixture Filing executed and acknowledged by a Subsidiary Guarantor
in favor of Administrative Agent for the benefit of the Lenders (or, in the case
of a deed of trust, to a trustee for the benefit of the Agent and the Lenders)
in form acceptable to Administrative Agent, as each such agreement may be
amended, restated, supplemented, consolidated, extended or otherwise modified
from time to time in accordance with the terms thereof and hereof.
"MORTGAGED PROPERTY" has the meaning assigned to that term in each
Mortgage.
"NOTES" means (i) any promissory notes issued by Borrower on the Closing
Date and (ii) any promissory notes issued by Borrower in connection with
assignments of the Commitments and Advances of any Lenders, in each case
substantially in the form of EXHIBIT M attached hereto, together with any
additional notes in substitution and replacement thereof, issued by Borrower to
each Lender hereunder, made payable to the order of each Lender in the amount of
each Lender's Commitment and collectively, as amended, modified, replaced,
restated, extended or renewed from time to time.
"OBLIGATIONS" means all liabilities, obligations, covenants and duties
of, Borrower, Subsidiary Guarantor and each other Loan Party from time to time
owed to Administrative Agent or Lenders or any of them under or otherwise with
respect to any Loan Document, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including interest and fees that accrues after
the commencement by or against Borrower and/or any Subsidiary Guarantor or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceedings.
"ON" or "ON", when used with respect to the Property or any property
adjacent to the Property, means "on, in, under, above or about".
"OPERATING PARTNERSHIP" has the meaning set forth in the introductory
paragraph of this Agreement.
"PAYMENT AMOUNT" means an Advance of the Loan, an unreimbursed
Administrative Agent Advance, an unreimbursed Indemnified Liability, or any
other amount that a Lender is required to fund under this Agreement.
"PERMITTED ENCUMBRANCES" means with respect to any Collateral, the
following types of Liens: (i) Liens for real property taxes, assessments, vault
charges, water and sewer rents, and
Exhibit B - Page 12
other Impositions the payment of which is not delinquent, (ii) rights of Tenants
under the Approved Leases in existence on the Closing Date and any Approved
Leases entered into hereafter in accordance with the requirements of this
Agreement; (iii) covenants, easements, rights-of-way, restrictions, minor
encroachments or other similar encumbrances not impairing the marketability of
such Collateral and not interfering with the use of such Collateral for its
intended purposes or with the ordinary conduct of the business of Borrower or
any Subsidiary Guarantor; (iv) liens securing the Obligations (including any
Mortgage or other recorded Loan Document); (v) Liens that are bonded and thereby
released of record in a manner reasonably satisfactory to Administrative Agent;
and (vi) all exceptions contained in the Title Insurance approved by
Administrative Agent.
"PERMITTED TRANSFERS" means any sale, pledge, encumbrance, assignment or
transfer, voluntarily or involuntarily, whether by operation of law or
otherwise, of any registered or unregistered shares in Borrower occurring in the
ordinary course of business in connection with the exchange of shares in the
public equity markets or in exempt transactions between and among so-called
accredited investors.
"PERSON" means and includes natural persons, corporations, limited
liability companies, limited partnerships, general partnerships, joint stock
companies, joint ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations, whether or not
legal entities, and Tribunals.
"POTENTIAL DEFAULT" means any condition or event which with the giving
of notice or lapse of time or both would constitute a Default if that condition
or event were not cured or removed within the applicable grace period.
"PRIME RATE" means, on any day, the rate of interest per annum then most
recently established by Administrative Agent as its "prime rate," it being
understood and agreed that such rate is set by Administrative Agent as a general
reference rate of interest, taking into account such factors as Administrative
Agent may deem appropriate, that it is not necessarily the lowest or best rate
actually charged to any customer or a favored rate, that it may not correspond
with future increases or decreases in interest rates charged by other lenders or
market rates in general, and that Administrative Agent may make various business
or other loans at rates of interest having no relationship to such rate. If
Administrative Agent (including any subsequent Administrative Agent) ceases to
exist or to establish or publish a prime rate from which the Prime Rate is then
determined, the applicable variable rate from which the Prime Rate is determined
thereafter shall be instead the prime rate reported in THE WALL STREET JOURNAL
(or the average prime rate if a high and a low prime rate are therein reported),
and the Prime Rate shall change without notice with each change in such prime
rate as of the date such change is reported.
"PRINCIPAL DEBT" means the aggregate unpaid principal balance of the
Loan at the time in question.
"PROJECT" means any portion of the Property comprised of Land and
Improvements located and operated independently from other portions of the
Property.
Exhibit B - Page 13
"PROJECT ANNUALIZED NET INCOME" means, the amount, if any, by which the
Annualized Adjusted Income for the Property (based upon the Qualified Leases in
effect as of the end of the calendar month preceding any calculation by
Administrative Agent hereunder) exceeds the Annualized Adjusted Expenses for the
Property for the period ending on the last day of the calendar month immediately
preceding any calculation by Administrative Agent hereunder or the most recent
calendar month for which all expenses have been determined, if the actual
expenses for the prior calendar month have not yet been finalized).
"PROPERTY" means, collectively, the Land listed on EXHIBIT A attached
hereto (and all Improvements thereon), as such EXHIBIT A may be supplemented
from time to time with the consent of Administrative Agent.
"PRO RATA SHARE" means, with respect to each Lender at any time, a
fraction expressed as a percentage, the numerator of which is the amount of the
Commitment of such Lender at such time and the denominator of which is the
amount of the Aggregate Commitments at such time or, if the Aggregate
Commitments have been terminated, a fraction (expressed as a percentage, carried
out to the ninth decimal place), the numerator of which is the total outstanding
amount of all Indebtedness held by such Lender at such time and the denominator
of which is the total outstanding amount of all Indebtedness at such time. The
initial Pro Rata Share of each Lender named on the signature pages hereto is set
forth opposite the name of that Lender on the SCHEDULE OF LENDERS.
"QUALIFIED LEASE" means each Approved Lease of the Property which meets
the following additional criteria: (i) the unexpired term of the Approved Lease
is greater than 12 months, (ii) the Tenant under such Approved Lease (excluding
Cyprus Minerals) has accepted and is in occupancy of its respective leased
premises in accordance with such Approved Lease, (iii) the commencement date of
such Approved Lease has occurred and the Tenant has commenced the payment of
base rental thereunder, and (iv) the Tenant is not in default of its obligations
under the Approved Lease (except, with respect to Cyprus Minerals, so long as
Cyprus Minerals is not in default of its payment obligations under its Lease,
such Tenant's failure to occupy the Property shall not, for purposes of this
definition be deemed a default by such Tenant under its Lease).
"RELEASE DATE" means, as to each Project, the earlier of the following
two dates: (i) the date on which the Indebtedness and Obligations secured by the
Mortgage encumbering such Project (other than those indemnifications or
obligations which, by the terms of the Mortgage, expressly survive repayment of
the Indebtedness or release of the Mortgage) have been paid and performed in
full and such Mortgage has been released; or (ii) the later date on which the
lien of such Mortgage is fully and finally foreclosed (and all applicable
redemption periods have expired) or a conveyance by deed in lieu of such
foreclosure is fully and finally effective and possession of the Property
subject to such Mortgage has been given to and accepted by the purchaser or
grantee free of occupancy and claims to occupancy by any Loan Party and its
heirs, devisees, representatives, successors and assigns; provided that, if such
payment, performance, release, foreclosure or conveyance is challenged, in
bankruptcy proceedings or otherwise, the Release Date shall be deemed not to
have occurred until such challenge is validly released, dismissed with prejudice
or otherwise barred by law from further assertion.
Exhibit B - Page 14
"RENTS" means all rents, issues, profits, royalties, receipts, revenues,
accounts receivable, security deposits and other deposits (subject to the prior
right of Tenants making such deposits) and income, including fixed, additional
and percentage rents, occupancy charges, operating expense reimbursements,
reimbursements for increases in taxes, sums paid by Tenants to Borrower or any
Subsidiary Guarantor to reimburse Borrower or Subsidiary Guarantor, as
applicable, for amounts originally paid or to be paid by Borrower or such
Subsidiary Guarantor or their agents or Affiliates for which such Tenants were
liable, as, for example, tenant improvements costs in excess of any work letter,
lease takeover costs, moving expenses and tax and operating expense
pass-throughs for which a Tenant is solely liable, parking, valet, maintenance,
common area, tax, insurance, utility and service charges and contributions,
proceeds of sale of electricity, gas, heating, air-conditioning and other
utilities and services, deficiency rents and liquidated damages, and other
benefits.
"REQUIRED LENDERS" means as of any date of determination at least two
Lenders having more than 50% of the Aggregate Commitments or, if the Aggregate
Commitments have been terminated, at least two Lenders holding in the aggregate
more than 50% of the total outstanding amount of all Indebtedness; PROVIDED that
the Commitment of, and the portion of the total outstanding amount of all
Indebtedness held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Required Lenders.
"SCHEDULE OF LENDERS" means the schedule of Lenders party to this
Agreement as set forth on EXHIBIT N, as it may be modified from time to time in
accordance with this Agreement.
"SECURITY DOCUMENTS" means, collectively, any Mortgage, Assignments of
Rents and Leases, and all deeds of trust, deeds to secure debt, mortgages,
security agreements, pledge agreements, assignments and all other instruments or
documents (including UCC-1 financing statements, fixture filings, UCC-3
amendments of financing statements or similar documents required or advisable in
order to perfect or maintain the Liens created by the Security Documents)
delivered by any Loan Party pursuant to this Agreement or any of the other Loan
Documents, whether such delivery is prior to, contemporaneous with or after
delivery of this Agreement, in order to grant to Administrative Agent the Liens
in real, personal or mixed property of that Person, and to maintain such Liens,
as each of the foregoing may be amended, restated, consolidated, supplemented or
otherwise modified from time to time in accordance with the terms thereof and
hereof.
"SPE" is defined in the first paragraph of this Agreement.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, association, joint venture, limited liability company or other
business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other
governing body (other than securities or interests having such power only by
reason of the happening of a contingency) are at the time beneficially owned, or
the management of which is otherwise controlled, directly, or indirectly through
one or more intermediaries.
"SUBSIDIARY GUARANTOR" means SPE, Operating Partnership, and each
additional Subsidiary of Borrower to whom Borrower distributes all or any
portion of the proceeds of the Loan, whether one or more, and if more than one,
each one individually or all collectively, who may now or
Exhibit B - Page 15
hereafter become party to a Guaranty; provided, that, Borrower shall make no
distributions of any proceeds of the Loan to any Person other than SPE without
the consent of Administrative Agent.
"SURVEY" means, with respect to each Project, a current survey map
prepared by a surveyor licensed in the state in which such Project is located,
reasonably acceptable to Administrative Agent, containing the legal description
of such Project and conforming, and certified by such surveyor to Administrative
Agent and the Lenders and the Title Company as conforming, to the requirements
set forth on EXHIBIT G attached hereto or as otherwise approved by
Administrative Agent in its sole discretion. Any such survey shall contain a
certification by such surveyor to Administrative Agent and the Lenders stating
whether the Project is located in an area having special flood hazards as
identified by the Federal Emergency Management Agency.
"SWAP TRANSACTION" means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap or
option, bond, note or xxxx option, interest rate option, forward foreign
exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swap option currency option or any other, similar
transaction (including any option to enter into any of the foregoing) or any
combination of the foregoing, and, unless the context otherwise clearly
requires, any form of master agreement (the "MASTER Agreement") published by the
International Swaps and Derivatives Association, Inc., or any other master
agreement, entered into between any Lender (or its affiliates) and Borrower or
any Subsidiary Guarantor, together with any related schedules, as amended,
supplemented, superseded or replaced from time to time, relating to or governing
any or all of the foregoing.
"S&P" means Standard & Poor's Rating Group, a division of McGraw Hill,
Inc., a New York corporation, or, if S&P no longer publishes ratings, then
another ratings agency acceptable to Administrative Agent.
"TANGIBLE NET WORTH" shall mean as of any Test Date with respect to
Borrower, the excess of consolidated total assets over consolidated total
liabilities (contingent or otherwise, including without limitation, declared and
unpaid dividends) determined in accordance with GAAP; however, excluded from the
determination of total assets shall be all assets that are classified under GAAP
as intangible, including, without limitation, goodwill, licenses, patents,
trademarks, trade names, copyrights and franchises.
"TENANT" means any Person liable by contract or otherwise to pay rent or
a percentage of income, revenue or profits pursuant to a Lease, and includes a
tenant, subtenant, lessee and sublessee.
"TENANT IMPROVEMENTS" means tenant improvements required by an Approved
Lease.
"TENANT REIMBURSEMENTS" means amounts paid or to be paid by Tenants
under Qualified Leases during the preceding twelve calendar as reimbursements
for operating expenses of the Property billed separately from the gross rent
payable under such Qualified Lease, such as by way of example but not
limitation, taxes, insurance, utilities and common area maintenance charges, but
EXCLUDING capital expenses and construction or tenant finish expenses incurred
by
Exhibit B - Page 16
Borrower which are amortized and reimbursed by the Tenant as part of the base or
minimum rent payable under the Approved Lease during the term of the Approved
Lease.
"TENANT SUBORDINATION AGREEMENT" means any Subordination,
Non-Disturbance and Attornment Agreement executed and acknowledged by a Tenant,
Borrower or any Subsidiary Guarantor and Administrative Agent, and reasonably
acceptable in form and substance to Administrative Agent, as each such agreement
may be amended, restated, supplemented or otherwise modified from time to time
in accordance with the terms thereof and hereof.
"TEST DATE" shall mean, the last date of each calendar quarter (i.e.,
ever December 31st, March 31st, June 30th and September 30th) during the term of
the Loan.
"TITLE COMPANY" means Lawyers Title Insurance Corporation or any other
national title insurance company acceptable to Administrative Agent in its sole
discretion.
"TITLE INSURANCE" means, with respect to each Project, the paid
mortgagee policy or policies of title insurance, covering, in the aggregate, the
full amount of the Loan, in the form of a 1970 ALTA loan policy (or other form
of loan policy available in the applicable state and acceptable to
Administrative Agent), conforming to the requirements set forth on EXHIBIT H
attached hereto, and issued by the Title Company.
"TREASURY RATE" means the rate of interest per annum on U.S. Treasury
Notes having a maturity of ten years as shown in the 10-year listing in the
"this week" column under the heading "Treasury Constant Maturities," of the
FEDERAL RESERVE statistical release FORM H-15 which, as of the date that ten
(10) days prior to the date of any such determination of such Treasury Rate by
Administrative Agent hereunder, has been most recently published (or, if for any
reason that published rate is not available as of such date, another rate
determined by Administrative Agent to be comparable, in its discretion
reasonably exercised, shall be used for this purpose).
"TRIBUNAL" means any state, commonwealth, federal, foreign, territorial
or other court or governmental department, commission, board, bureau, district,
authority, agency, central bank, or instrumentality, or any arbitration
authority.
2. FINANCIAL STATEMENTS. Borrower shall provide or cause to be
provided to Administrative Agent all of the following:
(a) Financial Statements of Borrower and its Subsidiaries,
prepared on a consolidated basis in accordance with GAAP, (i) for each
fiscal year of Borrower, as soon as reasonably practicable and in any
event within one hundred twenty (120) days after the close of such
fiscal year, and (ii) for each fiscal quarter of Borrower, as soon as
reasonably practicable and in any event within sixty (60) days after the
close of each fiscal quarter of Borrower.
(b) Simultaneously with the delivery by Borrower of each of
the Financial Statements required by clause (a) above, a Compliance
Certificate for Borrower, executed by the chief financial officer or the
treasurer of Borrower, in the form of that attached hereto as EXHIBIT E
("COMPLIANCE CERTIFICATE");
Exhibit B - Page 17
(c) With respect to each Project: (i) quarterly operating
reports for such Project, as soon as reasonably practicable and in any
event within sixty (60) days after the end of each calendar quarter,
which operating reports shall be in form and detail reasonably
acceptable to Administrative Agent and shall contain, at a minimum, (A)
a statement of all income and expenses in connection with such Project
for each month during such calendar quarter (and for the calendar year
through the end of such calendar quarter), and (B) a reconciliation to
the capital and operating budget for such Project for the calendar year
through the end of such calendar quarter, and (ii) a current rent roll
for such Project, as soon as reasonably practicable but in any event
within sixty (60) days after the end of each such calendar quarter,
certified in writing as true and correct by a representative of Borrower
satisfactory to Administrative Agent. Items provided under this
paragraph shall be in form and detail reasonably satisfactory to
Administrative Agent.
(d) If requested by Administrative Agent, copies of filed
federal and state income tax returns of Borrower and Subsidiary
Guarantor for each taxable year, within twenty (20) days after filing.
If any tax return is not filed on or before such initial due date, a
copy(ies) of the IRS extension form(s) (reflecting the approval when
required for the extension) must also be provided to Administrative
Agent.
(e) From time to time promptly after Administrative Agent's
request, such additional information, reports and statements respecting
the Property, or the business operations and financial condition of
Borrower and each Subsidiary Guarantor, as Administrative Agent may
reasonably request.
All Financial Statements shall contain or be attached to the signed and dated
written certification of the Chief Financial Officer of Borrower, in form
specified by Administrative Agent to certify that the Financial Statements are
furnished to Administrative Agent and the other Lenders in connection with the
extension of credit by Administrative Agent and the other Lenders were prepared
in conformity with GAAP and fairly present, in all material respects, the
financial position of Borrower and its Subsidiaries as at the date thereof and
the results of operations of Borrower and its Subsidiaries for the period then
ended, subject to changes resulting from audit and normal year end adjustments.
Exhibit B - Page 18
EXHIBIT "C"
CONDITIONS PRECEDENT TO THE FIRST ADVANCE
As conditions precedent to the first Advance of Loan proceeds, if and to
the extent required by Administrative Agent, Administrative Agent shall have
received and approved the following:
1. FEES AND EXPENSES. Any and all required commitment and other
fees, and evidence satisfactory to Administrative Agent that Borrower has paid
all other fees, costs and expenses (including the reasonable fees and costs of
Administrative Agent's counsel) then required to be paid pursuant to this
Agreement and all other Loan Documents, including, without limitation, all fees,
costs and expenses that Borrower is required to pay pursuant to any loan
application or commitment.
2. FINANCIAL STATEMENTS. The Financial Statements of Borrower and
its Subsidiaries required by the terms of this Agreement.
3. APPRAISAL. An Appraisal of each Project made within thirty (30)
days prior to the date of this Agreement, which appraises each Project on a "as
is" basis. Each Appraiser and Appraisal must be reasonably satisfactory to
Administrative Agent (including satisfaction of applicable regulatory
requirements) and each Appraiser must be engaged directly by Administrative
Agent.
4. AUTHORIZATION. Evidence Administrative Agent requires of the
existence, good standing, authority and capacity of Borrower, each Subsidiary
Guarantor, and each of their respective constituent partners, members, managers
and owners (however remote) to execute, deliver and perform their respective
obligations to Administrative Agent and Lenders under the Loan Documents,
including:
(a) For each partnership (including a joint venture or
limited partnership): (i) a true and complete copy of an executed
partnership agreement or limited partnership agreement, and all
amendments thereto; (ii) for each limited partnership, a copy of the
certificate of limited partnership and all amendments thereto
accompanied by a certificate issued by the appropriate governmental
official of the jurisdiction of formation that the copy is true and
complete, and evidence Administrative Agent requires of registration or
qualification to do business in the state where its principal place of
business is located and, as to any Subsidiary Guarantor, the state where
the Property owned by such Subsidiary Guarantor is located, and (iii) a
partnership affidavit certifying who will be authorized to execute or
attest any of the Loan Documents, and a true and complete copy of the
partnership resolutions approving the Loan Documents and authorizing the
transactions contemplated in this Agreement and the other Loan
Documents.
(b) For each corporation: (i) a true and complete copy of
its articles of incorporation and by-laws, and all amendments thereto, a
certificate of incumbency of all of its officers who are authorized to
execute or attest to any of the Loan Documents, and a true and complete
copy of resolutions approving the Loan Documents and authorizing the
transactions contemplated in this Agreement and the other Loan
Documents; and (ii)
Exhibit C - Page 1
certificates of existence, good standing and qualification to do
business issued by the appropriate governmental officials in the state
of its formation and, if different, the state in which its property is
located.
(c) For each limited liability company or limited liability
partnership: (i) a true and complete copy of the articles of
organization and operating agreement, and all amendments thereto, a
certificate of incumbency of all of its members who are authorized to
execute or attest to any of the Loan Documents, and a true and complete
copy of resolutions approving the Loan Documents and authorizing the
transactions contemplated in this Agreement and the other Loan
Documents; and (ii) certificates of existence, good standing and
qualification to do business issued by appropriate governmental
officials in the state of its formation and, if different, the state in
which its property is located.
(d) For each entity or organization that is not a
corporation, partnership, limited partnership, joint venture, limited
liability company or limited liability partnership, a copy of each
document creating it or governing the existence, operation, power or
authority of it or its representatives.
(e) All certificates, resolutions, and consents required by
Administrative Agent applicable to the foregoing.
5. LOAN DOCUMENTS. From Borrower and each Subsidiary Guarantor,
duly executed, acknowledged and/or sworn to as required, and delivered to
Administrative Agent (with a copy for each Lender) Loan Documents then required
by Administrative Agent, dated the date of this Agreement, each in form and
content reasonably satisfactory to Administrative Agent, and (i) evidence
reasonably satisfactory to Administrative Agent that counterparts of the
Mortgage, the Assignment of Rents and Leases and all other documents
Administrative Agent desires to have recorded have been or will be recorded in
all places necessary or desirable, in the reasonable judgment of Administrative
Agent to create and maintain (a) valid and enforceable first priority Liens on
the fee simple or leasehold interests of each Subsidiary Guarantor, as
applicable, in the Property in favor of Administrative Agent, as mortgagee (or
as beneficiary in those jurisdictions where the Lien is granted to a trustee for
the benefit of Administrative Agent), (b) valid and enforceable first priority
Liens on the Rents and Leases in favor of Administrative Agent, (c) valid and
enforceable first priority Liens in all fixtures at the Property, in favor of
Administrative Agent, as secured party and (d) valid and enforceable first
priority Liens in all other items of Collateral in favor of Administrative
Agent, and (ii) evidence that financing statements under the Uniform Commercial
Code (or any equivalent or similar legislation), or any other documents required
by other Laws, in form and substance satisfactory to Administrative Agent in
each jurisdiction as may be necessary (in Administrative Agent's reasonable
judgment) effectively to perfect and maintain the security interests in the
Collateral created by such Security Documents have been or will be recorded in
all places necessary or desirable, in the reasonable judgment of Administrative
Agent, to create and maintain valid and enforceable first priority Liens on the
Collateral in favor of Administrative Agent.
6. OPINIONS. The written opinion of counsel satisfactory to
Administrative Agent for Borrower and Subsidiary Guarantor, addressed to
Administrative Agent for the benefit of Lenders, dated the date of this
Agreement.
Exhibit C - Page 2
7. SURVEY; NO SPECIAL FLOOD HAZARD. For the Property: (a) two (2)
prints of an original Survey (with a copy for each Lender) of the Land and
Improvements thereon dated not more than sixty (60) days prior to the date of
this Agreement (or dated such earlier date, if any, as is satisfactory to the
Title Company, but in any event not more than one hundred eighty (180) days
prior to the date of this Agreement) reasonably satisfactory to Administrative
Agent and the Title Company and otherwise, to the extent required by
Administrative Agent, complying with EXHIBIT "G", and (b) a flood insurance
policy (with a copy for each Lender) in an amount equal to the lesser of the
maximum Loan amount or the maximum amount of flood insurance available under the
Flood Disaster Protection Act of 1973, as amended, and otherwise in compliance
with the requirements of the Loan Documents, or evidence satisfactory to
Administrative Agent that none of the Improvements is located in a flood hazard
area.
8. TITLE INSURANCE. For the Property: an ALTA title insurance
policy (or a title insurance policy promulgated by the laws of the state in
which the Property is located if an ALTA insurance policy is not available),
issued by the Title Company (which shall be approved by Administrative Agent) in
the maximum amount of the Loan plus any other amount secured by the applicable
Mortgage, on a coinsurance and/or reinsurance basis if and as required by
Administrative Agent, insuring without exclusion or exception for creditors'
rights that the applicable Mortgage constitutes a valid lien covering the Land
and all Improvements thereon, having the priority required by Administrative
Agent and subject only to those exceptions and encumbrances (regardless of rank
or priority) Administrative Agent approves, in a form acceptable to
Administrative Agent and otherwise conforming to the requirements set forth in
EXHIBIT "H" attached hereto.
9. INSURANCE POLICIES. For the Property, the insurance policies
initially required by Administrative Agent, pursuant to the Loan Documents,
together with evidence satisfactory to Administrative Agent that all premiums
therefor have been paid for a period of not less than one (1) year from the date
of this Agreement and that the policies are in full force and effect.
10. LEASES. With respect to the Property, (i) true and correct
copies of all Leases; (ii) estoppel certificates and Tenant Subordination
Agreements (including nondisturbance agreements if and to the extent agreed by
Administrative Agent in its discretion), dated within thirty (30) days prior to
this Agreement and in form and content reasonably satisfactory to Administrative
Agent, from the Tenants as Administrative Agent requires; (iii) evidence
reasonably satisfactory to Administrative Agent of Borrower's compliance with
the Leases; and (iv) evidence reasonably satisfactory to Administrative Agent of
the Tenants' approval of all matters requiring their approval.
11. ENVIRONMENTAL COMPLIANCE/REPORT. Evidence satisfactory to
Administrative Agent that no portion of the Land is "wetlands" under any
applicable Law and that the Land does not contain and is not within or near any
area designated as a hazardous waste site by any Tribunal, that neither the
Property nor any adjoining property contains or has ever contained any substance
classified as hazardous or toxic (or otherwise regulated, such as, without
limitation, asbestos, radon and/or petroleum products) under any Law or
governmental requirement pertaining to health or the environment, and that
neither the Property nor any use or activity thereon violates or is or could be
subject to any response, remediation, clean-up or other obligation under any Law
or governmental requirement pertaining to health or the environment including
without limitation, a written report
Exhibit C - Page 3
of an environmental assessment of the Property, made within thirty (30) days
prior to the date of this Agreement, by an engineering firm, and of a scope and
in form and content satisfactory to Administrative Agent, complying with
Administrative Agent's established guidelines, showing that there is no evidence
of any such substance which has been generated, treated, stored, released or
disposed of in the Property, and such additional evidence as may be reasonably
required by Administrative Agent. All reports, drafts of reports, and
recommendations, whether written or oral, from such engineering firm shall be
made available and communicated to Administrative Agent.
12. ACCESS, UTILITIES, AND LAWS. For the Property: (a) evidence
reasonably satisfactory to Administrative Agent that the Property abuts and has
fully adequate direct and free access to one or more public streets, dedicated
to public use, fully installed and accepted by the appropriate Tribunal, that
all fees, costs and expenses of the installation and acceptance thereof have
been paid in full, and that there are no restrictions on the use and enjoyment
of such streets which would adversely affect the Project; (b) letters from the
applicable utility companies or governmental authorities confirming that all
utilities necessary for the Improvements are available at the Land in sufficient
capacity, together with evidence satisfactory to Administrative Agent of paid
impact fees, utility reservation deposits, and connection fees required to
assure the availability of such services; (c) evidence reasonably satisfactory
to Administrative Agent that all applicable zoning ordinances, restrictive
covenants and governmental requirements affecting the Property permit the use
for which the Property is intended and have been or will be complied with
without the existence of any variance, non-complying use, nonconforming use or
other special exception (including, if reasonably required by Administrative
Agent, a letter from the applicable zoning authority with respect to the
Property stating that all improvements on the Property have been constructed and
are being used and operated in full compliance with all applicable zoning,
subdivision and building Laws applicable to such Property); (d) evidence
reasonably satisfactory to Administrative Agent that the Land and Improvements
comply and will comply with all Laws and governmental requirements regarding
subdivision and platting and would so comply if the Land and the Improvements
thereon were conveyed as a separate parcel; (e) a true and correct copy of a
valid certificates of occupancy for the Improvements, together with all other
consents, licenses, permits and approvals necessary for the use, occupancy and
operation of the Improvements, all in assignable form (to the extent
appropriate) and in full force and effect; and (f) evidence reasonably
satisfactory to Administrative Agent of compliance by Borrower and the Property,
and the proposed use and occupancy of the Improvements, with such other
applicable Laws and governmental requirements as Administrative Agent may
reasonably request, including all Laws and governmental requirements regarding
access and facilities for handicapped or disabled persons including, without
limitation and to the extent applicable, The Federal Architectural Barriers Act
(42 U.S.C. ss. 4151 et seq.), The Fair Housing Amendments Act of 1988 (42 U.S.C.
ss. 3601 et seq.), The Americans With Disabilities Act of 1990 (42 U.S.C. ss.
12101 et seq.), The Rehabilitation Act of 1973 (29 U.S.C. ss. 794), and any
applicable state requirements.
13. PRIORITY. For the Property, a certificate or certificates of a
reporting service acceptable to Administrative Agent, reflecting the results of
searches made not earlier than ten (10) days prior to the date of this
Agreement, (i) of the central and local Uniform Commercial Code records, showing
no filings against any of the collateral for the Loan or against Borrower
otherwise except for the Permitted Encumbrances or other items consented to by
Administrative Agent; and
Exhibit C - Page 4
(ii) if required by Administrative Agent, of the appropriate judgment and tax
lien records, showing no outstanding judgment or tax lien against Borrower and
each Subsidiary Guarantor.
14. TAX AND STANDBY FEE CERTIFICATES. For the Property, evidence
reasonably satisfactory to Administrative Agent (a) of the identity of all
taxing authorities and utility districts (or similar authorities) having
jurisdiction over the Property or any portion thereof; (b) that all taxes,
standby fees and any other similar charges have been paid, including copies of
receipts or statements marked "paid" by the appropriate authority; and (c) that
the Land is a separate tax lot or lots with separate assessment or assessments
of the Land and Improvements, independent of any other land or improvements and
that the Land is a separate legally subdivided parcel.
15. ENGINEERING REPORTS. With respect to the Property, Borrower
shall have delivered (or cause to be delivered) to Administrative Agent (i) a
written Engineering Report with respect to the Property dated not more than 60
days prior to the Closing Date and prepared by an Engineer reasonably acceptable
to Administrative Agent, which Engineering Report shall in all other respects be
reasonably satisfactory, in form and substance, to Administrative Agent and (ii)
a reliance letter from the Engineer with respect to each Engineering Report
addressed to Administrative Agent and Lenders, which letter shall be in form and
substance reasonably satisfactory to the Agent.
16. NO ADVERSE LITIGATION. As of the Closing Date, there shall not
be pending or, to the best knowledge of Borrower, threatened, any action, suit,
proceeding, governmental investigation or arbitration against or affecting
Borrower or any of its Subsidiaries or any property of Borrower or any of its
Subsidiaries that has not been disclosed by Borrower in writing pursuant prior
to the execution of this Agreement and that is reasonably likely materially and
adversely to affect the Property or that is reasonably likely to have a Material
Adverse Effect, and there shall have occurred no development not so disclosed in
any such action, suit, proceeding, governmental investigation or arbitration so
disclosed, that, in either event, in the opinion of Administrative Agent, is
reasonably likely to have a Material Adverse Effect, and no injunction or other
restraining order shall have been issued and no hearing to cause an injunction
or other restraining order to be issued shall be pending or noticed with respect
to any action, suit or proceeding seeking to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result of, the
transactions contemplated by this Agreement or the making of the Loan hereunder.
17. OTHER DOCUMENTS. Such other documents and certificates as
Administrative Agent may reasonably request from Borrower or Subsidiary
Guarantor, in form and content reasonably satisfactory to Administrative Agent.
Exhibit C - Page 5
EXHIBIT "D"
INTENTIONALLY OMITTED
Exhibit D - Cover Page
EXHIBIT "E"
FORM OF COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
To: Bank of America, N.A., Administrative Agent
("ADMINISTRATIVE AGENT") and the Lenders
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xx. Xxxxxx Xxxxxx
Re: Ladies and Gentlemen:
1. The undersigned certifies to Administrative Agent and the other
Lenders that he/she is the Chief Financial Officer of Behringer Harvard REIT I,
Inc. ("BORROWER") and that this Compliance Certificate has been prepared
pursuant to the Credit Agreement dated as of __________, 200_ ("CREDIT
AGREEMENT") executed by Borrower, Administrative Agent, the Lenders, and certain
other Loan Parties (as defined therein). Capitalized terms used herein but not
otherwise defined herein shall have the meanings given to such terms in the
Credit Agreement.
2. The undersigned further certifies to Administrative Agent and
the other Lenders that (i) a review of the activities of Borrower, as of the
fiscal quarter ending _________________________, (the "REPORTING PERIOD") has
been made under my supervision with a view to determining whether Borrower has
fulfilled all of its obligations during the Reporting Period under the Credit
Agreement and the other Loan Documents to which Borrower is a party; (ii)
Borrower and each Subsidiary Guaranty is in compliance with all covenants and
provisions in the Credit Agreement, and no Default or Potential Default has
occurred which is continuing.
3. Pursuant to the Credit Agreement, the following documents are
delivered to Administrative Agent with this Compliance Certificate and deemed a
part of this Compliance Certificate [CHECK APPROPRIATE BOX]:
[ ] Quarterly Financial Statements, or
[ ] Annual Financial Statements.
The Financial Statements fairly and accurately present, in all material
respects, the financial condition of Borrower and its Subsidiaries as of the
Reporting Period, and have been prepared in accordance with GAAP.
4. The undersigned further certifies to Administrative Agent and
the other Lenders that the following amounts and calculations made pursuant to
the Credit Agreement are true and correct in all material respects, for the
referenced Reporting Period:
--------------------------------------------------------------------------------
FINANCIAL COVENANTS
--------------------------------------------------------------------------------
1. MINIMUM TANGIBLE NET WORTH. As of each Test Date during the term of the
Loan, Borrower shall have a Minimum Tangible Net Worth of not less than
$50,000,000.
SPECIFY TEST DATE =___________________________
Exhibit E - Page 1
--------------------------------------------------------------------------------
ACTUAL MINIMUM TANGIBLE NET WORTH AS OF SUCH TEST DATE = $____________
IN COMPLIANCE? Check One: _______ Yes ______ No
--------------------------------------------------------------------------------
2. MINIMUM LIQUIDITY. Borrower shall have Liquid Assets at least equal to
(i) as of any Test Date to and including the June 30, 2005 Test Date,
$3,000,000, and (ii) as of any Test date from and after the September
30, 2005 Test Date, $5,000,000.
SPECIFY TEST DATE =
ACTUAL LIQUID ASSETS OF BORROWER AS OF SUCH TEST DATE = $______________
IN COMPLIANCE? Check One: _______ Yes ______ No
--------------------------------------------------------------------------------
3. LIABILITIES/NET WORTH. As of each Test Date during the term of the Loan,
the ratio (expressed as a percentage) of (i) all liabilities of
Borrower, determined in accordance with GAAP as of any Test Date, to
(ii) the net worth of Borrower, determined in accordance with GAAP as of
the same Test Date, shall not be less than seventy-five percent (75%).
SPECIFY TEST DATE =
a) ACTUAL GAAP LIABILITIES OF BORROWER AS OF SUCH TEST DATE = $_______
b) ACTUAL GAAP NET WORTH OF BORROWER AS OF SUCH TEST DATE = $_________
c) RATIO OF LIABILITIES TO NET WORTH OF BORROWER AS OF SUCH
TEST DATE = ______________
IN COMPLIANCE? Check One: _______ Yes ______ No
--------------------------------------------------------------------------------
WITNESS the due execution of this Compliance Certificate on ____________ 200_.
BORROWER:
BEHRINGER HARVARD REIT I, INC.,
a Maryland corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
STATE OF TEXAS ss.
ss.
COUNTY OF DALLAS ss.
SWORN TO and SUBSCRIBED on this ____ day of _____________, 200__, by
______________________, Chief Financial Officer of Behringer Harvard REIT I,
Inc., a Maryland corporation, on behalf of said corporation.
(SEAL) ________________________________________
Notary Public, State of Texas
Notary's name (Printed):________________
My appointment expires:_________________
Exhibit E - Page 2
EXHIBIT "F"
ADVANCES
1. ADVANCE REQUEST. At least five (5) Business Days before the
requested date of each Advance of the Loan, Borrower shall deliver a Advance
Request to Administrative Agent. Each Advance Request, and Borrower's acceptance
of any Advance, shall be deemed to ratify and confirm, as of the requested
Funding Date, that, except as specified in the Advance Request: (a) the
representations and warranties contained herein and in the other Loan Documents
remain true and correct in all material respects to the same extent as though
made on and as of that Funding Date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects on and as of such earlier date, (b) there is no uncured Default or
Potential Default existing under the Loan Documents and no event shall have
occurred and be continuing or would result from the consummation of the
borrowing contemplated by such Advance Request that would constitute a Default
or a Potential Default, (c) all Advances previously made to Borrower were
disbursed, and the proceeds of the Advance requested in the Advance Request will
immediately be disbursed, for the purposes permitted by this Agreement and for
no other purpose, (d) Borrower and each Subsidiary Guarantor shall have
performed in all material respects all agreements and satisfied in all material
respects all conditions which this Agreement provides shall be performed or
satisfied by it on or before that Funding Date; (e) no order, judgment or decree
of any arbitrator or Tribunal shall purport to enjoin or restrain any Lender
from making its Pro Rata Share of any Advance on that Funding Date; and (f)
there shall not be pending or, to the knowledge of Borrower, threatened, any
action, suit, proceeding, governmental investigation or arbitration against or
affecting any Loan Party or any property of any Loan Party that is required to
be but has not been disclosed by such Loan Party to Administrative Agent in
writing pursuant this Agreement.
2. ADVANCES. Borrower shall be entitled to an Advance only in an
amount approved by Administrative Agent in accordance with the terms of this
Agreement and the Loan Documents. Lenders shall, only upon the satisfaction, as
reasonably determined by Administrative Agent, of all applicable conditions of
this Agreement and the Loan Documents, be required to make the requested Advance
to Borrower on a Funding Date which is a Business Day within five (5), or if any
portion of such Advance is Libor Rate Principal, eight (8), Business Days after
such satisfaction. Borrower shall disburse all Advances made to Borrower to its
Subsidiaries solely for the payments of costs related to the acquisition of the
Property by Borrower or its Subsidiary, and for no other purpose except as
permitted hereby.
3. CONDITIONS TO THE FIRST ADVANCE. As conditions precedent to the
first Advance hereunder, if and to the extent required by Administrative Agent,
to Administrative Agent's satisfaction, Borrower must have satisfied the
conditions required under this Agreement, including all of those conditions set
forth in EXHIBIT C and SECTION 4 below.
4. CONDITIONS TO ALL ADVANCES. As conditions precedent to each
Advance made pursuant to a Advance Request, in addition to all other
requirements contained in this Agreement, if and to the extent required by
Administrative Agent, (i) the Advance Termination Date shall not have passed,
(ii) Administrative Agent shall have received and approved an Advance Request,
and
Exhibit F - Page 1
(iii) Administrative Agent shall have determined, in the exercise of its
reasonable judgment, that no Default or Potential Default exists or will exists,
as of the Funding Date, (iv) Administrative Agent shall have determined, in its
reasonable discretion, that as of the Funding Date, no event shall have
occurred, nor shall any condition exist, that could have a Material Adverse
Effect on the enforceability of the Loan Documents, or a Material Adverse Effect
to the financial condition of Borrower or any Subsidiary Guarantor, impair the
ability of Borrower or any Subsidiary Guarantor to fulfill its material
obligations under the Loan Documents, or otherwise have a Material Adverse
Effect whatsoever on the Property; and (v) Administrative Agent shall have
received from Borrower such other information and documents as may be required
by this Agreement or Administrative Agent in its reasonable discretion.
5. DIRECT ADVANCES. Borrower hereby irrevocably authorizes
Administrative Agent on behalf of Lenders (but Administrative Agent shall have
no obligation) to (i) advance Loan funds directly to Lenders to pay interest due
on the Loan, and (ii) advance and directly apply the proceeds of any Advance to
the satisfaction of any of Borrower's obligations under any of the Loan
Documents, even though Borrower did not include that amount in an Advance
Request and/or no Default exists. Each such direct Advance shall be added to the
outstanding principal balance of the Loan and shall be secured by the Loan
Documents. Unless Borrower pays such interest from other resources,
Administrative Agent may advance Loan funds pursuant to this Section for
interest payments as and when due. Nothing contained in this Agreement shall be
construed to permit Borrower to defer payment of interest on the Loan beyond the
date(s) due. Administrative Agent may hold, use, disburse and apply the Loan for
payment of any obligation of Borrower under the Loan Documents. Borrower hereby
assigns and pledges the proceeds of the Loan to Administrative Agent for itself
and for the benefit of Lenders for such purposes. Administrative Agent on behalf
of Lenders may advance and incur such expenses as Administrative Agent deems
necessary to preserve the Property, and any other security for the Loan, and
such expenses, even though in excess of the amount of the Loan, shall be secured
by the Loan Documents and shall be payable to Administrative Agent on behalf of
Lenders on demand. Administrative Agent on behalf of Lenders may disburse any
portion of any Advance at any time, and from time to time, to Persons other than
Borrower for the purposes specified in this Section and the amount of Advances
to which Borrower shall thereafter be entitled shall be correspondingly reduced.
6. CONDITIONS AND WAIVERS. All conditions precedent to the
obligation of Lenders to make any Advance are imposed hereby solely for the
benefit of Administrative Agent and Lenders, and no other party may require
satisfaction of any such condition precedent or be entitled to assume that
Lenders will refuse to make any Advance in the absence of strict compliance with
such conditions precedent.
Exhibit F - Page 2
EXHIBIT "F-1"
FORM OF ADVANCE REQUEST
[BORROWER'S LETTERHEAD]
ADVANCE REQUEST NO.: ____________
TO: Bank of America, N.A., as Administrative Agent
LOAN NO.: ________________________________________________________________
DATE: ________________________________________________________________
BORROWER: Behringer Harvard REIT I, Inc., a Maryland corporation
________________________________________________________________________________
In accordance with the Credit Agreement dated December 30, 2004, among Borrower,
certain other parties, Administrative Agent and the Lenders as defined therein,
Borrower requests that $__________ be advanced from Loan proceeds. Borrower
hereby further agrees as follows:
1. The Proposed Funding Date (which must be a Business Day) is ___________.
2. The following elections shall apply with respect to such Advance:
(a) [ ] BASE Rate Principal: Amount $________
(b) [ ] LIBOR Rate Principal:
INTEREST PERIOD AMOUNT
--------------------------------------------------------
[ ] ONE MONTH $_______________
[ ] TWO MONTHS $_______________
[ ] THREE MONTHS $_______________
3. The Maximum Commitment Amount is $__________, the Aggregate Commitments
is $____________, and the amount of the proposed Advance will not cause the
outstanding principal balance of the Loan to exceed the lesser of (B) the
Aggregate Commitments, or (B) the Maximum Commitment Amount then in effect.
4. The Advance should be credited to the account of Borrower as follows:
Account No.:________________________________
Account Name:_______________________________
ABA No.:____________________________________
Attention:__________________________________
Reference:__________________________________
BORROWER:
BEHRINGER HARVARD REIT I, INC.,
a Maryland corporation
By:_____________________________
Name:___________________________
Title:__________________________
Exhibit F-1 - Page 1
EXHIBIT "G"
SURVEY REQUIREMENTS
1. REQUIREMENTS. The Survey shall be made in accordance with, and
meet the requirements of, the certification below by a registered professional
engineer or registered professional land surveyor. The description shall be a
single metes and bounds perimeter description of the entire Land, and a separate
metes and bounds description of the perimeter of each constituent tract or
parcel out of the Land. The total acreage and square footage of the Land and
each constituent tract or parcel of the Land shall be certified. If the Land has
been recorded on a map or plat as part of an abstract or subdivision, all survey
lines must be shown, and all lot and block lines (with distances and bearings)
and numbers, must be shown. The date of any revisions subsequent to the initial
survey prepared pursuant to these requirements must also be shown.
2. CERTIFICATION. The certification for the property description
and the map or plat shall be addressed to Lender, Borrower and the Title
Company, signed by the surveyor (a registered professional land surveyor or
registered professional engineer), bearing current date, registration number,
and seal, and shall be in the following form or its substantial equivalent:
This is to certify to ________________ [INSERT NAMES OF ADMINISTRATIVE
AGENT, BORROWER AND TITLE COMPANY] that this map or plat and the survey
on which it is based were made in accordance with "Minimum Standard
Detail Requirements for ALTA/ACSM Land Title Surveys" jointly
established and adopted by ALTA, ACSM and NSPS in 1999, and pursuant to
the Accuracy Standards as adopted by ALTA, NSPS and ACSM and in effect
on the date of this certification. The undersigned hereby certifies that
the Positional Uncertainties resulting from the survey measurements made
on the survey do not exceed the allowable Positional Tolerance. The
undersigned further certifies that optional items numbers 1, 2, 4 (in
square feet or acres), 6, 8, 10, 11(b), 14, 15, 16, and if buildings are
located on the land, numbers 7(a), 7(b)(1), 7(b)(2) and 9 from Table A,
Optional Survey Responsibilities and Specifications, of the Minimum
Standard Detail Requirements for ALTA/ACSM Land Title Surveys are
included in this survey. The undersigned additionally certifies that (a)
this survey was made on the ground under my supervision; (b) I have
received and examined a copy of the Title Insurance Commitment No.
_______________ issued by the Title Company as well as a copy of each
instrument listed therein, and the subject land and each tract or parcel
thereof described in this survey is the same land as described in the
Title Commitment; (c) if the subject land consists of two or more tracts
or parcels having common boundaries, those tracts and parcels are
contiguous along the common boundaries; (d) the subject land and each
tract or parcel thereof has a tax map designation separate and distinct
from that of any other land and the subject land and each tract or
parcel thereof is a separate, legally subdivided parcel; (e) this survey
correctly shows all matters of record, (and to the extent they can be
located, their location and dimensions) of which I have been advised
affecting the subject land according to the legal description in such
matters (with instrument, book, and page number indicated); (f) except
as shown on this survey, no part of the subject land is located in a
100-year Flood Plain or in an identified "FLOOD PRONE AREA," as defined
pursuant to the Flood Disaster Protection Act of 1973, as amended, as
reflected by Flood Insurance Rate Map Panel #
Exhibit G - Page 1
dated ____________________, which such map panel covers the area in
which the Property is situated and this survey correctly indicates the
zone designation of any area as being in the 100-year Flood Plain or
"FLOOD PRONE AREA"; (g) to the best of my knowledge, this survey shows
the relation of and distance of all substantial, visible buildings,
sidewalks and other improvements to easements and setback lines; and (h)
to the best of my knowledge, except as shown on this survey, neither the
subject land nor any tract or parcel thereof serves any adjoining land
for drainage, utilities, or ingress or egress.
Exhibit G - Page 2
EXHIBIT "H"
TITLE INSURANCE REQUIREMENTS
The Title Insurance Commitment must obligate the Title Company to issue
to Lender an ALTA (1970 Form) title insurance policy (or other form of loan
policy available in the applicable state and acceptable to Administrative Agent)
in the maximum amount of the Loan plus any other amount secured by the mortgage
instrument, on a reinsurance basis if and as required by Lender, insuring
without exclusion or exception for creditors' rights that the mortgage
instrument constitutes a valid lien covering the land and all improvements
thereon, having the priority required by Lender and subject only to those
exceptions and encumbrances (regardless of rank or priority) that Lender
approves, in a form acceptable to Lender, and with all "standard" exceptions
which can be deleted, including the exception for matters which a current survey
would show, deleted to the fullest extent authorized under applicable title
insurance rules, and Borrower shall satisfy all requirements therefor;
containing no exception for standby fees or real estate taxes or assessments
other than those for the year in which the closing occurs to the extent the same
are not then due and payable and endorsed "not yet due and payable" and
containing no exception for subsequent assessments for prior years; providing
full coverage against mechanics' and materialmens' liens to the extent
authorized under applicable title insurance rules, and Borrower shall satisfy
all requirements therefor; insuring that no restrictive covenants shown in the
title insurance policy have been violated, and that no violation of the
restrictions will result in a reversion or forfeiture of title; insuring all
appurtenant easements; insuring that fee simple indefeasible or marketable (as
coverage is available) fee simple title to the land and improvements is vested
in a Subsidiary Guarantor; containing such affirmative coverage and endorsements
as Lender may require and are available under applicable title insurance rules,
and a Subsidiary Guarantor shall satisfy all requirements therefor; insuring any
easements, leasehold estates or other matters appurtenant to or benefiting the
land and/or the improvements as part of the insured estate; insuring the right
of access to the land to the extent authorized under applicable title insurance
rules, and a Subsidiary Guarantor shall satisfy all requirements therefor; and
containing provisions acceptable to Lender regarding Advances and/or readvances
of Loan funds after closing. Neither a Subsidiary Guarantor nor a Subsidiary
Guarantor's counsel shall have any interest, direct or indirect, in the Title
Company (or its agent) or any portion of the premium paid for the title
insurance policy.
Exhibit H - Page 1
EXHIBIT "I"
LEASING AND TENANT MATTERS
Borrower and each Subsidiary Guarantor hereby agree with Administrative
Agent and the other Lenders as follows:
1. LEASES. Subsidiary Guarantors may, without the prior approval of
Administrative Agent, execute one or more Leases in respect of a single Project
(collectively, "EXEMPT LEASES") so long as the aggregate square footage of
leased space covered by all Exempt Leases for a single Project does not exceed
twenty percent (20%) of the total leaseable space of the Improvements within
such Project. Except for Exempt Leases that fall within the foregoing twenty
percent (20%) exclusion, no Loan Party shall enter into any Lease of space in
the Improvements which has not been approved in writing by Administrative Agent.
As used herein, the term "APPROVED LEASES" means, collectively, all Exempt
Leases and all Leases approved in writing by Administrative Agent. If any
proposed Lease is not an Exempt Lease, prior to execution, Borrower or the
applicable Loan Party shall provide to Administrative Agent a correct and
complete copy of such Lease, including any exhibits and each guarantee thereof
(if any), together with, if available, a comparison version of such Lease
showing the revisions made to its original form or the form lease, if any,
approved by Administrative Agent, as applicable. Administrative Agent shall use
reasonable efforts to notify Borrower of Administrative Agent's approval or
disapproval (specifying the reasons for any disapproval) of any proposed Lease
submitted by Borrower to Administrative Agent on or before the end of the tenth
(10th) Business Days after the LATER to occur of: (i) receipt by Administrative
Agent of the proposed Lease, and (ii) receipt by Administrative Agent of the
most recently prepared financial statements for the proposed Tenant; PROVIDED,
HOWEVER, that if Administrative Agent fails to approve or disapprove of such
proposed Lease within such 10-Business Day period, then Borrower may notify
Administrative Agent in writing of such failure and Administrative Agent shall
be deemed to have approved such proposed Lease if Administrative Agent fails to
respond to Borrower by the end of the second (2nd) Business Day following
receipt by Administrative Agent of such additional notice, SO LONG AS such
additional notice is sent to Administrative Agent at the address noted on the
signature page to this Agreement (addressed to the attention of Xx. Xxx Xxxxxx
and Real Estate Loan Administration) AND to Administrative Agent's attorneys,
Xxxxxxxxx Traurig, LLP, 00000 Xxxx Xxxx, Xxxxx 000, Xxxxxx, XX 00000 Attention:
Xxxx X. Xxxx (which notice addresses may be changed at any time by written
notice to Borrower of such change of address). In order to facilitate
Administrative Agent's review of Leases and the lease negotiations of the Loan
Parties, Borrower may submit to Administrative Agent for its review one or more
form leases (or any amendments thereto) for use by the Loan Parties in
connection with the Property. Borrower shall, throughout the term of this
Agreement, pay all reasonable costs incurred by Administrative Agent in
connection with Administrative Agent' review and approval of Leases (other than
Exempt Leases) and each guarantee thereof (if any), including reasonable
attorneys' fees and costs.
2. EFFECT OF LEASE APPROVAL. No approval of any Lease by
Administrative Agent shall be for any purpose other than to protect Lenders'
security, and to preserve Lenders' rights under the Loan Documents. No approval
by Administrative Agent shall result in a waiver of any default of Borrower. In
no event shall any approval by Administrative Agent of a Lease be a
representation
Exhibit I - Page 1
of any kind, with regard to the Lease or its adequacy or enforceability, or the
financial capacity of any Tenant or guarantor.
3. REPRESENTATIONS CONCERNING LEASES. Borrower and each Subsidiary
Guarantor represents and warrants to Administrative Agent and Lenders that each
has delivered to Administrative Agent a true and correct copy of all Leases and
each guarantee thereof (if any), affecting any part of the Improvements owned by
such Person, together with an accurate and complete rent roll for the Project
owned by such Person, and no such Lease or guarantee contains any option to
purchase all or any portion of such Property or any interest therein or contains
any right of first refusal relating to any sale of such Property or any portion
thereof or interest therein.
4. DELIVERY OF LEASING INFORMATION AND DOCUMENTS. Borrower and each
Subsidiary Guarantor shall promptly (a) deliver to Administrative Agent such
monthly rent rolls, leasing schedules and reports, operating statements,
financial statements provided by Tenants and other information regarding tenants
and prospective tenants or other leasing information as Administrative Agent
from time to time may reasonably request, and (b) use commercially reasonable
efforts to obtain and deliver to Administrative Agent such estoppel certificates
and Tenant Subordination Agreements executed by such Tenants (and guarantors, if
any) in such forms as Administrative Agent from time to time may reasonably
require.
5. INCOME FROM THE PROPERTY. Borrower and each Subsidiary Guarantor
shall first apply all income from Leases, and all other income derived from the
Property owned by Borrower and each Subsidiary Guarantor, as applicable, to pay
costs and expenses associated with the ownership, maintenance, development,
operating, and marketing of such Property, including all amounts then required
to be paid under the Loan Documents, before using or applying such income for
any other purpose.
6. COMPLIANCE AND DEFAULT. Borrower and Subsidiary Guarantor shall
deliver to Administrative Agent, upon request by Administrative Agent, evidence
of the approval of any Tenant to any construction plans or other items requiring
Tenants' approval under its Lease. Borrower and Subsidiary Guarantor shall
promptly notify Administrative Agent in writing of any failure by such Borrower
or any Subsidiary Guarantor or any Tenant to perform any material obligation
under any Lease regarding the Property owned by Borrower or any Subsidiary
Guarantor, any event or condition which would permit a Tenant to terminate or
cancel a Lease, or any written notice given by a Tenant with respect to the
foregoing, specifying in each case the action Borrower or such Subsidiary
Guarantor has taken or will take with respect thereto.
Exhibit I - Page 2
EXHIBIT "J"
INSURANCE REQUIREMENTS
I. GENERAL REQUIREMENTS
1. All insurance carriers must have a minimum A.M. Best's rating of A- / IX
or better. Lower ratings may be acceptable for certain unique types of
coverage.
2. Administrative Agent's name and address on all policies is to read as
follows:
Name: Bank of America, N.A., individually and as
Administrative Agent for itself and the Lenders
Address: Mail Code CA9-169-03-05
X.X. Xxx 000000
Xxx Xxxxxxx, XX 00000-0000
II. PROPERTY INSURANCE
1. Administrative Agent is to be named as Mortgagee (and Loss Payee if
personal property is part of the collateral).
2. 30 day prior written notice of cancellation or expiration (to
Administrative Agent at above address).
3. Acceptable evidence of coverage includes: original or certified policy;
Evidence (XXXXX 27); original binder; original Certificate (XXXXX 25,
with a Lenders Loss Payable endorsement). Any of the above needs to be
signed by authorized representative of insurance company.
o ADMINISTRATIVE AGENT SHOULD RECEIVE A CERTIFIED COPY OF THE
COMPLETE POLICY AS SOON AS IT BECOMES AVAILABLE.
4. Borrower or Subsidiary Guarantor, as applicable, must be a Named Insured
(using Borrower's or Subsidiary Guarantor's full legal name).
5. Include accurate description of location and improvements.
6. Special Form (All Risk) in an amount to cover full replacement value of
all Improvements.
o THE POLICY MUST NOT CONTAIN AN EXCLUSION FOR ACTS OF TERRORISM.
THE EVIDENCE OF INSURANCE MUST INCLUDE THE FOLLOWING WORDING,
"ACTS OF TERRORISM ARE NOT EXCLUDED."
7. Agreed Amount Endorsement (or no co-insurance clause)
8. Loss of Business Income and/or Loss of Rents based upon as 12 month
period. Type of coverage is dependent upon with Borrower/Subsidiary
Guarantor or Tenants occupy the Improvements
9. Insurance covering specific perils such as earthquake, wind and
sinkholes will be required on a case by case basis (depending on
location, level of risk etc.).
III. FLOOD INSURANCE
1. Required when a structure falls within a Flood Zone beginning with an A
or V and in a participating community.
Exhibit J - Page 1
2. Coverage must equal the lesser of the replacement cost of the
improvements; or the maximum amount of coverage allowed for the type of
property under the NFIP; or the outstanding principal balance of the
loan.
3. Acceptable evidence includes: a copy of the flood policy; copy of
completed, signed and dated NFIP/WYO flood insurance application with a
copy of the annual premium check.
4. Numbers II-1, 4 & 5 apply.
5. 45 day prior written notice of cancellation or expiration (to
Administrative Agent at above address).
IV. LIABILITY INSURANCE
1. Acceptable evidence of coverage includes: certified copy of policy;
Certificate (XXXXX 25). Any acceptable evidence needs to be signed by
authorized representative of insurance company.
2. Borrower and Subsidiary Guarantor, as applicable, must be a Named
Insured (using Borrower's and/or Subsidiary Guarantor's full legal
name).
3. Administrative Agent must be named as an Additional Insured.
4. Comprehensive general liability coverage to equal $5,000,000 per
occurrence.
5. 30-day prior written notice of cancellation or expiration to
Administrative Agent (at above address).
Exhibit J - Page 2
EXHIBIT "K"
INTENTIONALLY OMITTED
Exhibit K - Cover Page
EXHIBIT "L"
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "ASSIGNMENT") is dated as of the
Effective Date set forth below and is entered into by and between
_________________ (the "ASSIGNOR") and ____________________ (the "ASSIGNEE").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (the "CREDIT AGREEMENT"), receipt
of a copy of which is hereby acknowledged by the Assignee. The Standard Terms
and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment as if set
forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
Administrative Agent as contemplated below, (i) all of the Assignor's rights and
obligations as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, any Guaranty), and (ii) to the extent permitted
to be assigned under applicable Law, all claims, suits, causes of action and any
other right of the Assignor (in its capacity as a Lender) against any Person,
whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or in
any way based on or related to any of the foregoing, including, but not limited
to contract claims, tort claims, malpractice claims, statutory claims and all
other claims at Law or in equity, related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as the "ASSIGNED INTEREST"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment,
without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [IS AN AFFILIATE/APPROVED FUND
OF ______________]
3. Borrower(s): ______________________________
4. Administrative Agent: ______________________, as the administrative
agent under the Credit Agreement
5. Credit Agreement: The Credit Agreement, dated as of _______________,
among _________________________, the Lenders parties thereto, [AND] Bank of
America, N.A., as Administrative Agent[, AND THE OTHER AGENTS PARTIES THERETO]
Exhibit L - Page 1
6. Assigned Interest:
------------------------- ---------------------------- -------------------------
Aggregate Amount of Amount of Percentage
Commitment/Advances Commitment/Advances Assigned of
FOR ALL LENDERS ASSIGNED COMMITMENT/ADVANCES
------------------------- ---------------------------- -------------------------
$-------------- $---------------- --------------%
------------------------- ---------------------------- -------------------------
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR
________________________________________
By:_____________________________________
Title:
ASSIGNEE
________________________________________
By:_____________________________________
Title:
[Consented to and] Accepted:
____________________________________, as
Administrative Agent
By: _________________________________
Title:
[Consented to:]
By: _________________________________
Title:
Exhibit L - Page 2
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. REPRESENTATIONS AND WARRANTIES.
1.1. ASSIGNOR. The Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents, or any collateral thereunder, (iii) the financial condition of
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by Borrower,
any of its Subsidiaries or Affiliates or any other Person of any of their
respective obligations under any Loan Document.
1.2. ASSIGNEE. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and to consummate the transactions contemplated hereby
and to become a Lender under the Credit Agreement, (ii) it meets all
requirements of an Eligible Assignee under the Credit Agreement (subject to
receipt of such consents as may be required under the Credit Agreement), (iii)
from and after the Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of the Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it has
received a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to EXHIBIT B thereof, as applicable, and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision independently and without reliance on
Administrative Agent or any other Lender to enter into this Assignment and to
purchase the Assigned Interest on the basis of which it has made such analysis
and decision, and (v) if it is a Foreign Lender, attached hereto is any
documentation required to be delivered by it pursuant to the terms of the Credit
Agreement, duly completed and executed by the Assignee; and (b) agrees that (i)
it will, independently and without reliance on Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, and (ii) it will perform
in accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.
1.3 ASSIGNEE'S ADDRESS FOR NOTICES, ETC. Attached hereto as Schedule
1 is all contact information, address, account and other administrative
information relating to the Assignee.
2. PAYMENTS. From and after the Effective Date, Administrative
Agent shall make all payments in respect of the Assigned Interest (including
payments of principal, interest,
Annex 1 - Page 1
fees and other amounts) to the Assignee whether such amounts have accrued prior
to or on or after the Effective Date. The Assignor and the Assignee shall make
all appropriate adjustments in payments by Administrative Agent for periods
prior to the Effective Date or with respect to the making of this Assignment
directly between themselves.
3. GENERAL PROVISIONS. This Assignment shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns. This Assignment may be executed in any number of counterparts, which
together shall constitute one instrument. Delivery of an executed counterpart of
a signature page of this Assignment by telecopy shall be effective as delivery
of a manually executed counterpart of this Assignment. This Assignment shall be
governed by, and construed in accordance with, the Law of the State of Texas.
Annex 1 - Page 2
SCHEDULE 1 TO ASSIGNMENT AND ASSUMPTION
ADMINISTRATIVE DETAILS
(ASSIGNEE TO LIST NAMES OF CREDIT CONTACTS, ADDRESSES, PHONE AND
FACSIMILE NUMBERS, ELECTRONIC MAIL ADDRESSES AND ACCOUNT AND
PAYMENT INFORMATION)
(a) Libor Lending Office:
Assignee Name:__________________________________
Address:________________________________________
________________________________________________
Attention:______________________________________
Telephone: ( )_________________________________
Telecopier: ( )________________________________
Electronic Mail:________________________________
(b) Domestic Lending Office:
Assignee Name:__________________________________
Address:________________________________________
________________________________________________
Attention:______________________________________
Telephone: ( )_________________________________
Telecopier: ( )________________________________
Electronic Mail:________________________________
(c) Notice Address:
Assignee Name:__________________________________
Address:________________________________________
________________________________________________
Attention:______________________________________
Telephone: ( )_________________________________
Telecopier: ( )________________________________
Electronic Mail:________________________________
(d) Payment Instructions: Account No.:
Account No.:____________________________________
Attention:______________________________________
Reference:______________________________________
Schedule 1 - Page 1
EXHIBIT "M"
FORM OF PROMISSORY NOTE
$---------------------- ---------------, -----
FOR VALUE RECEIVED, BEHRINGER HARVARD REIT I, INC., a Maryland corporation
("BORROWER") hereby promises to pay to the order of [_____________________
("LENDER") UNDER THAT CERTAIN CREDIT AGREEMENT (DEFINED BELOW) AMONG BORROWER,
BEHRINGER HARVARD OPERATING PARTNERSHIP I, LP, BERHINGER HARVARD CYPRUS, LLC,]
Bank of America, N.A., a national banking association (together with any and all
of its successors and assigns, "ADMINISTRATIVE AGENT") as agent for the benefit
of the Lenders from time to time a party to that certain Credit Agreement (the
"CREDIT AGREEMENT") [DATED ____________ __, 2004] [OF EVEN DATE HEREWITH],
without offset, in immediately available funds in lawful money of the United
States of America, at Administrative Agent's Office as defined in the Credit
Agreement, the principal sum of _______________________________________ DOLLARS
($_______________________) (or the unpaid balance of all principal advanced
against this Note, if that amount is less), together with interest on the unpaid
principal balance of this Note from day to day outstanding as hereinafter
provided.
1. NOTE; INTEREST; PAYMENT SCHEDULE AND MATURITY DATE. This Note is
one of the Notes referred to in Credit Agreement and is entitled to the benefits
thereof and subject to prepayment in whole or part as provided therein. The
entire principal balance of this Note then unpaid shall be due and payable at
the times as set forth in the Credit Agreement. Accrued unpaid interest shall be
due and payable at the times and at the interest rate as set forth in the Credit
Agreement until all principal and accrued interest owing on this Note shall have
been fully paid and satisfied. Any amount not paid when due and payable
hereunder shall, to the extent permitted by applicable Law, bear interest at the
Past Due Rate, as set forth in the Credit Agreement.
2. GUARANTY; LOAN DOCUMENTS. The obligations of Borrower under this
Note are guaranteed, in whole or in part, by the Guaranty (whether one or more,
as defined in the Credit Agreement). Each Guaranty is secured by certain
Security Documents, as more particularly described in the Credit Agreement.
3. DEFAULTS.
(a) It shall be a default ("DEFAULT") under this Note and
each of the other Loan Documents if, subject to the grace periods provided in
the Credit Agreement or the other Loan Documents, (i) any principal, interest or
other amount of money due under this Note is not paid in full when due,
regardless of how such amount may have become due; (ii) any covenant, agreement,
condition, representation or warranty herein or in any other Loan Documents is
not fully and timely performed, observed or kept; or (iii) there shall occur any
default or event of default under the Mortgage or any other Loan Document. Upon
the occurrence and during the continuation of a Default, Administrative Agent on
behalf of the Lenders shall have the rights to declare the unpaid principal
balance and accrued but unpaid interest on this Note, and all other
Exhibit M - Page 1
amounts due hereunder and under the other Loan Documents, at once due and
payable (and upon such declaration, the same shall be at once due and payable),
to foreclose any liens and security interests securing payment hereof and to
exercise any of its other rights, powers and remedies under this Note, under any
other Loan Document, or at Law or in equity.
(b) All of the rights, remedies, powers and privileges
(together, "RIGHTS") of Administrative Agent on behalf of the Lenders provided
for in this Note and in any other Loan Document are cumulative of each other and
of any and all other Rights at Law or in equity. The resort to any Right shall
not prevent the concurrent or subsequent employment of any other appropriate
Right. No single or partial exercise of any Right shall exhaust it, or preclude
any other or further exercise thereof, and every Right may be exercised at any
time and from time to time. No failure by Administrative Agent or LenderS to
exercise, nor delay in exercising any Right, including but not limited to the
right to accelerate the maturity of this Note, shall be construed as a waiver of
any Default or as a waiver of any Right. Without limiting the generality of the
foregoing provisions, the acceptance by Lender from time to time of any payment
under this Note which is past due or which is less than the payment in full of
all amounts due and payable at the time of such payment, shall not (i)
constitute a waiver of or impair or extinguish the right of Administrative Agent
or Lenders to accelerate the maturity of this Note or to exercise any other
Right at the time or at any subsequent time, or nullify any prior exercise of
any such Right, or (ii) constitute a waiver of the requirement of punctual
payment and performance or a novation in any respect.
(c) If any holder of this Note retains an attorney in
connection with any Default or at maturity or to collect, enforce or defend this
Note or any other Loan Document in any lawsuit or in any probate,
reorganization, bankruptcy, arbitration or other proceeding, or if Borrower sues
any holder in connection with this Note or any other Loan Document and does not
prevail, then Borrower agrees to pay to each such holder, in addition to
principal, interest and any other sums owing to Lenders hereunder and under the
other Loan Documents, all costs and expenses reasonably incurred by such holder
in trying to collect this Note or in any such suit or proceeding, including,
without limitation, reasonable attorneys' fees and expenses, investigation costs
and all court costs, whether or not suit is filed hereon, whether before or
after the Maturity Date, or whether in connection with bankruptcy, insolvency or
appeal, or whether collection is made against Borrower or any guarantor or
endorser or any other Person primarily or secondarily liable hereunder.
4. SUCCESSORS AND ASSIGNS. The terms of this Note and of the other
Loan Documents shall bind and inure to the benefit of the successors and assigns
of the parties. The foregoing sentence shall not be construed to permit Borrower
to assign the Loan except as otherwise permitted under the Loan Documents. As
further provided in the Credit Agreement, a Lender may, at any time, sell,
transfer, or assign all on a portion of its interest in this Note and the other
Loan Documents, as set forth in the Credit Agreement.
5. GENERAL PROVISIONS. Time is of the essence with respect to
Borrower's obligations under this Note. If more than one Person or entity
executes this Note as Borrower, all of said parties shall be jointly and
severally liable for payment of the indebtedness evidenced hereby. Borrower and
all sureties, endorsers, guarantors and any other party now or hereafter liable
for the payment of this Note in whole or in part, hereby severally (a) waive
demand, presentment for
Exhibit M - Page 2
payment, notice of dishonor and of nonpayment, protest, notice of protest,
notice of intent to accelerate, notice of acceleration and all other notices
(except any notices which are specifically required by this Note or any other
Loan Document), filing of suit and diligence in collecting this Note or
enforcing any of the security herefor; (b) agree to any substitution,
subordination, exchange or release of any such security or the release of any
party primarily or secondarily liable hereon; (c) agree that neither
Administrative Agent nor any Lender shall be required first to institute suit or
exhaust its remedies hereon against Borrower or others liable or to become
liable hereon or to perfect or enforce its rights against them or any security
herefor; (d) consent to any extensions or postponements of time of payment of
this Note for any period or periods of time and to any partial payments, before
or after maturity, and to any other indulgences with respect hereto, without
notice thereof to any of them; and (e) submit (and waive all rights to object)
to non-exclusive personal jurisdiction of any state or federal court sitting in
the city and county, and venue in the city or county, in which payment is to be
made as specified in SECTION 1 of this Note, for the enforcement of any and all
obligations under this Note and the Loan Documents; (f) waive the benefit of all
homestead and similar exemptions as to this Note; (g) agree that their liability
under this Note shall not be affected or impaired by any determination that any
security interest or lien taken by Lender to secure this Note is invalid or
unperfected; and (h) hereby subordinate any and all rights against Borrower and
any of the security for the payment of this Note, whether by subrogation,
agreement or otherwise, until this Note is paid in full. A determination that
any provision of this Note is unenforceable or invalid shall not affect the
enforceability or validity of any other provision and the determination that the
application of any provision of this Note to any person or circumstance is
illegal or unenforceable shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances. This Note may not
be amended except in a writing specifically intended for such purpose and
executed by the party against whom enforcement of the amendment is sought.
Captions and headings in this Note are for convenience only and shall be
disregarded in construing it. THIS NOTE, AND ITS VALIDITY, ENFORCEMENT AND
INTERPRETATION, SHALL BE GOVERNED BY TEXAS LAW (WITHOUT REGARD TO ANY CONFLICT
OF LAWS PRINCIPLES) AND APPLICABLE UNITED STATES FEDERAL LAW.
6. NOTICES. Any notice, request, or demand to or upon Borrower or
Lender shall be deemed to have been properly given or made when delivered in
accordance with the Credit Agreement.
7. NO USURY. It is expressly stipulated and agreed to be the intent
of Borrower, Administrative Agent and all Lenders at all times to comply with
applicable state law or applicable United States federal law (to the extent that
it permits a Lender to contract for, charge, take, reserve, or receive a greater
amount of interest than under state law) and that this Section shall control
every other covenant and agreement in this Note and the other Loan Documents. If
applicable state or federal law should at any time be judicially interpreted so
as to render usurious any amount called for under this Note or under any of the
other Loan Documents, or contracted for, charged, taken, reserved, or received
with respect to the Loan, or if Administrative Agent's exercise of the option to
accelerate the Maturity Date, or if any prepayment by Borrower results in
Borrower having paid any interest in excess of that permitted by applicable law,
then it is Administrative Agent's and each Lender's express intent that all
excess amounts theretofore collected by Administrative Agent's and each Lender
shall be
Exhibit M - Page 3
credited on the principal balance of this Note and all other indebtedness and
the provisions of this Note and the other Loan Documents shall immediately be
deemed reformed and the amounts thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new documents, so as to
comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder or thereunder. All sums paid or agreed to
be paid to Lenders for the use, forbearance, or detention of the Loan shall, to
the extent permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full stated term of the Loan until payment in full so that
the rate or amount of interest on account of the Loan does not exceed the
maximum lawful rate from time to time in effect and applicable to the Loan for
so long as the Loan is outstanding.
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 ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, Borrower has duly executed this Note as of the date
first above written.
BORROWER:
BEHRINGER HARVARD REIT I, INC., a
Maryland corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
Exhibit M - Page 4
EXHIBIT "N"
SCHEDULE OF LENDERS
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT:
DOMESTIC AND LIBOR LENDING OFFICE:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Real Estate Loan Administration
Xxxxx Xxxx
Telephone: 214/000-0000
Facsimile: 214/209-1571
NOTICES:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Real Estate Loan Administration
Xxxxx Xxxx
Telephone: 214/000-0000
Facsimile: 214/209-1571
________________________________________________________________________________
BANK OF AMERICA, N.A., AS LENDER Commitment Amount: $______________
Pro Rata Share: ________%
DOMESTIC AND LIBOR LENDING OFFICE:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Real Estate Loan Administration
Xxxxx Xxxx
Telephone: 214/000-0000
Facsimile: 214/209-1571
NOTICES:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Real Estate Loan Administration
Xxxxx Xxxx
Telephone: 214/000-0000
Facsimile: 214/209-1571
PAYMENT INSTRUCTIONS; ACCOUNT INFORMATION:
Account No.:____________________________
Account Name:___________________________
ABA No.:________________________________
Attention:______________________________
Reference:______________________________
Exhibit N - Page 1
________________________________________________________________________________
___________________________, AS LENDER Commitment Amount: $__________
Pro Rata Share: ________%
DOMESTIC AND LIBOR LENDING OFFICE:
Attn:___________________________________
Telephone:______________________________
Facsimile:______________________________
NOTICES:
Attn:___________________________________
Telephone:______________________________
Facsimile:______________________________
PAYMENT INSTRUCTIONS: ACCOUNT NO.:
Account No.:____________________________
Account Name:___________________________
ABA No.:________________________________
Attention:______________________________
Reference:______________________________
Exhibit N - Page 2
