Exhibit 10.4
_______________________________________________________
_______________________________________________________
FIRST AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT
AMONG
ARDEN REALTY LIMITED PARTNERSHIP,
A MARYLAND LIMITED PARTNERSHIP,
AS BORROWER,
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
COMMERZBANK AG, LOS ANGELES BRANCH, DRESDNER BANK AG,
NEW YORK BRANCH AND GRAND CAYMAN BRANCH,
FLEET NATIONAL BANK, KEYBANK NATIONAL ASSOCIATION, MANUFACTURERS BANK,
SIGNET BANK, XXXXXX BROTHERS REALTY CORPORATION,
CHASE MANHATTAN BANK, BANKERS TRUST COMPANY,
THE FIRST NATIONAL BANK OF CHICAGO,
AND PNC BANK, NATIONAL ASSOCIATION,
TOGETHER WITH THOSE ASSIGNEES
BECOMING PARTIES HERETO PURSUANT
TO SECTION 11.20, AS LENDERS,
CHASE MANHATTAN BANK AND XXXXXX BROTHERS REALTY CORPORATION,
AS CO-AGENTS,
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS AGENT
Dated as of June 11, 1997
_______________________________________________________
_______________________________________________________
TABLE OF CONTENTS
Page
----
ARTICLE 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Computation of Time Periods . . . . . . . . . . . . . . . . . . . .32
1.3 Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
ARTICLE 2 ADVANCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
2.1 Loan Advances and Repayment . . . . . . . . . . . . . . . . . . . .33
2.2 Authorization to Obtain Advances. . . . . . . . . . . . . . . . . .36
2.3 Lenders' Accounting . . . . . . . . . . . . . . . . . . . . . . . .37
2.4 Interest on the Advances. . . . . . . . . . . . . . . . . . . . . .37
2.5 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
2.6 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
2.7 Notice of Increased Costs . . . . . . . . . . . . . . . . . . . . .45
2.8 Voluntary Termination or Reduction of
Commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
ARTICLE 3 CONDITIONS TO ADVANCES. . . . . . . . . . . . . . . . . . . . . . .46
3.1 Conditions to Initial Advances. . . . . . . . . . . . . . . . . . .46
3.2 Conditions Precedent to All Advances. . . . . . . . . . . . . . . .47
ARTICLE 4 REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . .48
4.1 Representations and Warranties as to
Borrower, Etc. . . . . . . . . . . . . . . . . . . . . . . . .48
4.2 Representations and Warranties as to the REIT . . . . . . . . . . .55
ARTICLE 5 REPORTING COVENANTS . . . . . . . . . . . . . . . . . . . . . . . .58
5.1 Financial Statements and Other Financial and Operating Information.59
5.2 Environmental Notices . . . . . . . . . . . . . . . . . . . . . . .65
5.3 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . .66
ARTICLE 6 AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . .67
6.1 With Respect to Borrower. . . . . . . . . . . . . . . . . . . . . .67
6.2 With Respect to the REIT. . . . . . . . . . . . . . . . . . . . . .69
ARTICLE 7 NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . .71
7.1 With Respect to all Parties . . . . . . . . . . . . . . . . . . . .71
7.2 Amendment of Constituent Documents. . . . . . . . . . . . . . . . .73
7.3 Minimum Ownership Interest of Xxxxxxx Xxxxx . . . . . . . . . . . .73
7.4 Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . .73
7.5 Margin Regulations. . . . . . . . . . . . . . . . . . . . . . . . .74
7.6 Organization of Borrower, Etc.. . . . . . . . . . . . . . . . . . .74
7.7 With Respect to the REIT. . . . . . . . . . . . . . . . . . . . . .74
ARTICLE 8 FINANCIAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . .75
8.1 Tangible Net Worth. . . . . . . . . . . . . . . . . . . . . . . . .75
8.2 Maximum Total Liabilities to Gross Asset Value. . . . . . . . . . .75
8.3 Minimum Interest Coverage Ratio . . . . . . . . . . . . . . . . . .75
8.4 Minimum Fixed Charge Coverage Ratio . . . . . . . . . . . . . . . .75
8.5 Minimum Unencumbered Pool . . . . . . . . . . . . . . . . . . . . .75
8.6 Minimum Unsecured Interest Expense Coverage . . . . . . . . . . . .75
8.7 Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . .75
8.8 Investments; Asset Mix. . . . . . . . . . . . . . . . . . . . . . .76
8.9 Secured Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . .77
ARTICLE 9 EVENTS OF DEFAULT; RIGHTS AND REMEDIES. . . . . . . . . . . . . . .77
9.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . .77
9.2 Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . .81
9.3 Rescission. . . . . . . . . . . . . . . . . . . . . . . . . . . . .82
ARTICLE 10 AGENCY PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . .83
10.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . .83
10.2 Nature of Duties. . . . . . . . . . . . . . . . . . . . . . . . . .83
10.3 Disbursements of Advances . . . . . . . . . . . . . . . . . . . . .84
10.4 Distribution and Apportionment of Payments. . . . . . . . . . . . .85
10.5 Rights, Exculpation, Etc. . . . . . . . . . . . . . . . . . . . . .87
10.6 Reliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87
10.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . .87
10.8 Agent Individually. . . . . . . . . . . . . . . . . . . . . . . . .88
10.9 Successor Agent; Resignation of Agent; Removal
of Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .88
10.10 Consent and Approvals. . . . . . . . . . . . . . . . . . . . . . .89
10.11 Certain Agency Provisions Relating to
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . .91
10.12 Ratable Sharing. . . . . . . . . . . . . . . . . . . . . . . . . .91
10.13 Delivery of Documents. . . . . . . . . . . . . . . . . . . . . . .92
10.14 Notice of Events of Default. . . . . . . . . . . . . . . . . . . .92
ARTICLE 11 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . .93
11.1 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93
11.2 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94
11.3 Change in Accounting Principles and "Funds
from Operations" Definition . . . . . . . . . . . . . . . . . . . .95
11.4 Amendments and Waivers. . . . . . . . . . . . . . . . . . . . . . .96
11.5 Independence of Covenants . . . . . . . . . . . . . . . . . . . . .97
11.6 Notices and Delivery. . . . . . . . . . . . . . . . . . . . . . . .97
11.7 Survival of Warranties, Indemnities and
Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . .98
11.8 Failure or Indulgence Not Waiver; Remedies Cumulative . . . . . . .98
11.9 Payments Set Aside. . . . . . . . . . . . . . . . . . . . . . . . .98
11.10 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . .98
11.11 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98
11.12 Governing Law; Waiver. . . . . . . . . . . . . . . . . . . . . . .99
11.13 Limitation of Liability. . . . . . . . . . . . . . . . . . . . . .99
11.14 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . .99
11.15 Consent to Jurisdiction and Service of
Process; Waiver of Jury Trial. . . . . . . . . . . . . . . . . . .99
11.16 Counterparts; Effectiveness; Inconsistencies . . . . . . . . . . 100
11.17 Performance of Obligations . . . . . . . . . . . . . . . . . . . 100
11.18 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . 100
11.19 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . 100
11.20 Assignments and Participations . . . . . . . . . . . . . . . . . 101
LIST OF EXHIBITS AND SCHEDULES
Exhibits:
A - Form of Assignment and Assumption Agreement
B - Form of Compliance Certificate
C - Form of Fixed Rate Notice
D - Form of Guaranty
E - Form of Note
F - Form of Notice of Borrowing
G - Form of Pricing Certificate
H - Form of Solvency Certificate
Schedules:
1.1A - Pro Rata Shares of Lenders
1.1B - List of Predecessor Entity Properties
2.1(e) - Adjusting Purchase Payments
2.2 - Employees Authorized to Sign Notices of Borrowing
4.1(c) - Ownership of Borrower
4.1(j) - List of Litigation
4.1(s) - Environmental Matters
4.1(v) - Management Agreements
4.2(l) - Benefit Plans
8.5 - List of Unencumbered Assets
FIRST AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as
of June 11, 1997 (as amended, supplemented or modified from time to time, the
"Agreement"), is made and entered into by and among ARDEN REALTY LIMITED
PARTNERSHIP, a Maryland limited partnership ("Borrower"), each of the Lenders,
as hereinafter defined, CHASE MANHATTAN BANK, a New York banking corporation
("Chase Manhattan Bank"), and XXXXXX BROTHERS REALTY CORPORATION, a Delaware
corporation ("Xxxxxx Brothers"), as Co-Agents, and XXXXX FARGO BANK, NATIONAL
ASSOCIATION ("Xxxxx Fargo"), as Agent.
RECITALS
(a) Pursuant to the Original Credit Agreement, the Original Lenders
made the Original Loan to Borrower.
(b) Effective as of the Closing Date, Union Bank of California, N.A.,
will no longer be a Lender and Signet Bank, a Virginia corporation, Xxxxxx
Brothers, Chase Manhattan Bank and Bankers Trust Company, a New York banking
corporation, will become Lenders.
(c) Borrower, the Lenders and Agent desire to amend and restate the
Original Credit Agreement and certain of the Original Loan Documents, all as
more particularly set forth below.
NOW, THEREFORE, Borrower, the Lenders and Agent do hereby amend and
restate the Original Credit Agreement as follows:
ARTICLE 1
DEFINITIONS
1.1 CERTAIN DEFINED TERMS. The following terms used in this Agreement
shall have the following meanings (such meanings to be applicable, except to the
extent otherwise indicated in a definition of a particular term, both to the
singular and the plural forms of the terms defined):
"ACCOUNTANTS" means any (i) "big six" accounting firm or (ii) another
firm of certified public accountants of recognized national standing selected by
Borrower and acceptable to Agent.
"ACQUISITION PRICE" means the aggregate purchase price for an asset,
including bona fide purchase money financing provided by the seller and all
other Indebtedness encumbering such asset at the time of acquisition.
"ADVANCE" means any advance made or to be made to Borrower pursuant to
ARTICLE 2, and includes each Base Rate Advance and each LIBOR Advance.
"AFFILIATES" as applied to any Person, means any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means (a) the possession, directly or
indirectly, of the power to vote ten percent (10%) or more of the Securities
having voting power for the election of directors of such Person or otherwise to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting Securities or by contract or otherwise,
or (b) the ownership of ten percent (10%) or more of the outstanding general
partnership or other ownership interests of such Person.
"AGENT" means Xxxxx Fargo in its capacity as agent for the Lenders
under this Agreement, and any successor Agent appointed pursuant hereto.
"Agent" shall not include either and/or both Co-Agents.
"APPLICABLE LIBOR RATE MARGIN" means, for each Pricing Period, the
interest rate margin set forth below
(expressed in basis points per annum) opposite the Applicable Pricing Level for
that Pricing Period:
Applicable
Pricing Level Margin
------------- ------
I 90.00
II 100.00
III 110.00
IV 115.00
V 120.00
VI 130.00
VII 145.00
"APPLICABLE PRICING LEVEL" means (a) for the Pricing Period from the
Closing Date and ending on August 19, 1997, Pricing Level VII and (b) for each
Pricing Period thereafter, the pricing level set forth below opposite, as
applicable, either (i) if Agent did not receive a Rating Notice, the Total
Liabilities to Gross Asset Value Ratio as of the last day of the Fiscal Quarter
most recently ended prior to the commencement of that Pricing Period, or (ii) if
Agent did receive a Rating Notice, the Borrower's Long-Term Unsecured Senior
Debt Rating as of such last day of the Fiscal Quarter most recently ended as
determined by Agent:
Borrower's Long-Term
Pricing Level Unsecured Senior Debt Rating
------------- ----------------------------
I A-/A3 or higher
II BBB+/Baa1
III BBB/Baa2
IV BBB-/Baa3
Total Liabilities to
Gross Asset Value Ratio
-----------------------
V Less than or equal to 35%
VI Greater than 35%, but less than 45%
VII Equal to or greater than 45%
If the Applicable Pricing Level for any Pricing Period is to be determined based
upon the ratio of Total Liabilities to Gross Asset Value and in the event that
Borrower does not deliver a Pricing Certificate with respect to such Pricing
Period prior to the commencement of such Pricing Period, then until (but only
until) such Pricing Certificate is delivered the applicable Pricing Level for
that Pricing Period shall be Pricing Level VII. "Borrower's Long-Term Unsecured
Senior Debt Rating" referred to above shall be the lower of such Rating as set
by Standard & Poor's and as set by any one of Xxxxx'x Investors Service, Inc.,
Duff and Xxxxxx, Xxxxx Investors Service, Inc. or another nationally-recognized
rating agency acceptable to Agent.
"ASSIGNMENT AND ASSUMPTION" means an Assignment and Assumption
Agreement in the form of EXHIBIT A hereto (with blanks appropriately filled in)
delivered to Agent in connection with each assignment of a Lender's interest
under this Agreement pursuant to SECTION 11.20.
"BASE RATE" means, on any day, the higher of (a) the rate of interest
per annum established from time to time by Agent at its principal office in
San Francisco, California, and designated as its prime rate as in effect on such
day and (b) the Federal Funds Rate in effect on such day PLUS one-half of
one percent (0.5%) per annum.
"BASE RATE ADVANCE" means an Advance bearing interest at the Base
Rate.
"BENEFIT PLAN" means any employee pension benefit plan as defined in
Section 3(2) of ERISA (other than a Multiemployer Plan) in respect of which a
Person or an ERISA Affiliate is, or within the immediately preceding five (5)
years was, an "employer" as defined in Section 3(5) of ERISA.
"BORROWER" means Arden Realty Limited Partnership, a Maryland limited
partnership.
"BRIDGE LOAN" means the "Advances" as defined in the Bridge Loan
Credit Agreement.
"BRIDGE LOAN CREDIT AGREEMENT" means that certain Revolving Credit
Agreement, dated as of May 5, 1997, by and between Borrower, as borrower, and
Xxxxx Fargo, as lender.
"BUSINESS DAY" means (a) with respect to any Advance, payment or rate
determination of LIBOR Advances, a day, other than a Saturday or Sunday, on
which Agent is open for business in San Francisco and on which dealings in
Dollars are carried on in the London interbank market, and (b) for all other
purposes any day excluding Saturday, Sunday and any day which is a legal holiday
under the laws of the State of California, or is a day on which banking
institutions located in California are required or authorized by law or other
governmental action to close.
"CAPITAL LEASE" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is or should be accounted for as a capital lease on the
balance sheet of that Person.
"CAPITAL LEASE OBLIGATIONS" means all monetary obligations of a Person
under any Capital Lease.
"CAPITALIZED LOAN FEES" means, with respect to the REIT and any
Consolidated Entity, and with respect to any period, (a) any up-front, closing
or similar fees paid by such Person in connection with the incurring or
refinancing of Indebtedness during such period and (b) all other costs incurred
in connection with the incurring or refinancing of Indebtedness during such
period, including, without limitation, appraisal fees paid to lenders, costs and
expenses incurred in connection with Swap Agreements, phase 1 environmental
report review fees paid to lenders and legal fees, in each of the foregoing
cases, that are capitalized on the balance sheet of such Person and amortized
over the term of such Indebtedness.
"CAPITAL STOCK" means, with respect to any Person, all (i) shares,
interests, participations or other equivalents (howsoever designated) of capital
stock or partnership or other equity interests of such Person and (ii) rights
(other than debt securities convertible into capital stock or other equity
interests), warrants or options to acquire any such capital stock or partnership
or other equity interests of such Person. The term "Capital Stock" includes the
Partnership Units of the Borrower.
"CARRYOVER PRINCIPAL BALANCE" means $54,200,000, which is the
outstanding principal balance of the Original Loan as of the date of this
Agreement.
"CASH" means, when used in connection with any Person, all monetary
and nonmonetary items owned by that Person that are treated as cash in
accordance with GAAP, consistently applied.
"CASH EQUIVALENTS" means (a) marketable direct obligations issued
or unconditionally guaranteed by the United States Government or issued by an
agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one (1) year after the date of acquisition
thereof; (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 maturing within ninety (90) days after the
date of acquisition thereof and, at the time of acquisition, having one of
the two highest ratings obtainable from any two of Standard & Poor's, Xxxxx'x
Investors Service, Inc., Duff and Xxxxxx, or Xxxxx Investors Service, Inc.
(or, if at any time no two of the foregoing shall be rating such obligations,
then from such other nationally recognized rating services as may be
acceptable to Agent) and not listed for possible down-grade in Credit Watch
published by Standard & Poor's; (c) commercial paper, other than commercial
paper issued by Borrower or any of its Affiliates, maturing no more than
ninety (90) days after the date of creation thereof and, at the time of
acquisition, having a rating of at least A-1 or P-1 from either Standard &
Poor's, or Xxxxx'x Investors Service, Inc. or, if at any time neither
Standard & Poor's, nor Xxxxx'x Investors Service, Inc. shall be rating such
obligations, then the highest rating from such other nationally recognized
rating services as may be acceptable to Agent); and (d) domestic and
Eurodollar certificates of deposit or time deposits or bankers' acceptances
maturing within ninety (90) days after the date of
acquisition thereof, overnight securities repurchase agreements, or reverse
repurchase agreements secured by any of the foregoing types of securities or
debt instruments issued, in each case, by any commercial bank organized under
the laws of the United States of America or any state thereof or the District of
Columbia or Canada which at the time of acquisition (A) has (or, in the case of
a bank which is a subsidiary, such bank's parent has) a rating of its senior
unsecured debt obligations of not less than Baa-2 by Xxxxx'x Investors
Service, Inc. or a comparable rating by a rating agency acceptable to Agent and
(B) has total assets in excess of Ten Billion Dollars ($10,000,000,000).
"CITY NATIONAL BANK LOAN" means revolving loans made by City National
Bank to Borrower in an aggregate committed principal amount which shall not
exceed $10,000,000 pursuant to the terms of that certain Loan Agreement dated
March 12, 1997 between Borrower and City National Bank, as amended through the
date of this Agreement.
"CLOSING DATE" means the date on which the applicable conditions
contained in SECTIONS 3.1 and 3.2 are satisfied or waived. Within five
(5) Business Days of the occurrence thereof, the Agent shall deliver written
notice to the Borrower and the Lenders confirming the date on which the Closing
Date occurs.
"CMBS ENTITIES" means, collectively, Arden Realty Finance, Inc., a
California corporation, which is a wholly-owned subsidiary corporation of the
REIT, and Arden Realty Finance Partnership, L.P., a California limited
partnership, with respect to which limited partnership Arden Realty
Finance, Inc., is the sole general partner and Borrower is a limited partner.
"CO-AGENTS " means Chase Manhattan Bank and Xxxxxx Brothers. Neither
Co-Agent shall have any rights, duties or responsibilities under the Loan
Documents beyond those of a Lender.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
"COMMISSION" means the Securities and Exchange Commission.
"COMMITMENT" means, subject to SECTIONS 2.7 and 2.8, $300,000,000. As
of the Closing Date, the respective Pro Rata Shares of the Lenders with respect
to the Commitment are set forth in SCHEDULE 1.1A.
"COMPLIANCE CERTIFICATE" means a certificate in the form of EXHIBIT C
hereto delivered to Agent by Borrower pursuant to SECTION 5.1(d) or other
provision of this Agreement and covering compliance with the covenants contained
in SECTION 7.3 and ARTICLE 8.
"CONSOLIDATED ENTITY" means, collectively, (i) the Borrower and
(ii) any other Person the accounts of which are consolidated with those of the
REIT in the consolidated financial statements of the REIT in accordance with
GAAP.
"CONSTRUCTION IN PROGRESS" means land on which Borrower has commenced,
and is diligently proceeding with, the construction of an Office Property. If,
after Borrower has commenced the construction of an Office Property, such
construction ceases for 45 or more consecutive days, such land shall cease to be
Construction in Progress and shall become Land until Borrower starts
construction of the Office Property again.
"CONTAMINANT" means any pollutant (as that term is defined in 42
U.S.C. 9601(33)) or toxic pollutant (as that term is defined in 33 U.S.C.
1362(13)), hazardous substance (as that term is defined in 42 U.S.C. 9601(14)),
hazardous chemical (as that term is defined by 29 CFR Section 1910.1200(c)),
toxic substance, hazardous waste (as that term is defined in 42 U.S.C. 6903(5)),
radioactive material, special waste, petroleum (including crude oil or any
petroleum-derived substance, waste, or breakdown or decomposition product
thereof), any constituent of any such substance or waste, including, but not
limited to, polychlorinated biphenyls and asbestos, or any other substance or
waste deleterious to the environment the release, disposal or remediation of
which is
now or at any time becomes subject to regulation under any Environmental Law.
"CONTRACTUAL OBLIGATION" as applied to any Person, means any provision
of any Securities issued by that Person or any indenture, mortgage, deed of
trust, lease, contract, undertaking, document or instrument to which that Person
is a party or by which it or any of its properties is bound, or to which it or
any of its properties is subject (including, without limitation, any restrictive
covenant affecting such Person or any of its properties).
"CONTRIBUTION AGREEMENT" means (i) that certain Contribution Agreement
made as of October 9, 1996, by and among Xxxxxxx X. Xxxxx, an individual,
Montour Realty Associates, a California general partnership, Metropolitan Falls
Partners, a California general partnership, Intercity Building Associates, a
California general partnership, Xxxxxx X. Xxxxxxx, an individual, Xxxxxxx
Enterprises, Inc., a California corporation, Xxxxx Realty Partners, a California
general partnership, Broad Base Investments II, LLC, a Nevada limited liability
company, Xxxxxxx Xxxx, individually and as trustee of the Xxxxxxx Xxxx Trust, a
revocable inter vivos trust dated September 20, 1996, Anaheim Properties LLC, a
California limited liability company, Arden Century Associates, a California
general partnership, Xxxxx Xxxxxxxx Associates, a California general
partnership, the REIT and Borrower and (ii) any other agreement between the
Borrower and a CMBS Entity providing for contribution by the Borrower of certain
contributions it receives from its limited partners with respect to Debt of the
CMBS Entity and on substantially similar terms as the Contribution Agreement
described in the foregoing clause (i). Borrower shall deliver to Agent a copy
of each Contribution Agreement entered into after the date of this Agreement.
"COURT ORDER" means any judgment, writ, injunction, decree, rule or
regulation of any court or Governmental Authority binding upon the Person in
question.
"DEBT" means, with respect to any Person, without duplication, the
principal amount of (a) its liabilities for
borrowed money, (b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable in the ordinary course of
business, but including, without limitation, all liabilities created or arising
under any conditional sale or other title retention agreement with respect to
any property), (c) its Capitalized Lease Obligations, (d) any liabilities for
borrowed money secured by a Lien with respect to any property owned by such
Person (whether or not it is assumed by such Person or such Person otherwise
becomes liable for such liabilities), (e) all liabilities with respect to any
unreimbursed draws on letters of credit and (f) any guaranty of such Person with
respect to any of the foregoing.
"DEBT SERVICE" means, for any period, Interest Expense for such period
PLUS scheduled principal amortization (excluding any balloon or bullet payment
due at maturity) for such period on all Debt of the REIT and the Consolidated
Entities and on the REIT's and each Consolidated Entity's pro rata share of all
Debt of each Unconsolidated Joint Venture. For purposes of the foregoing
definition, the REIT's and such Consolidated Entity's pro rata share of such
Debt shall be deemed to be equal to the product of (i) such Debt, multiplied by
(ii) the percentage of the total outstanding Capital Stock of such
Unconsolidated Joint Venture held by the REIT or such Consolidated Entity,
expressed as a decimal.
"DEFAULTING LENDER" means any Lender which fails or refuses to perform
its obligations under this Agreement within the time period specified for
performance of such obligation or, if no time frame is specified, if such
failure or refusal continues for a period of five (5) Business Days after notice
from Agent.
"DEPRECIATION AND AMORTIZATION EXPENSE" means (without duplication),
for any period, the sum for such period of (i) total depreciation and
amortization expense, whether paid or accrued, of the REIT and the Consolidated
Entities, plus (ii) the REIT's and each Consolidated Entity's pro rata share of
depreciation and amortization expenses of Unconsolidated Joint Ventures. For
purposes of this definition, the REIT's and such Consolidated Entity's pro rata
share of
depreciation and amortization expense of any Unconsolidated Joint Venture shall
be deemed equal to the product of (i) the depreciation and amortization expense
of such Unconsolidated Joint Venture, multiplied by (ii) the percentage of the
total outstanding Capital Stock of such Unconsolidated Joint Venture held by the
REIT or such Consolidated Entity, expressed as a decimal.
"DESIGNATED MARKET" means, with respect to any LIBOR Advance, the
London interbank LIBOR market or such other interbank LIBOR market as may be
designated in writing from time to time by the Requisite Lenders.
"DISQUALIFIED STOCK" means any capital stock, warrants, options or
other rights to acquire capital stock (but excluding any debt security which is
convertible, or exchangeable, for capital stock), which, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable prior to the Maturity Date, pursuant to a sinking fund obligation or
otherwise, or is or may be redeemable at the option of the holder thereof, in
whole or in part, prior to the Maturity Date. Borrower's Partnership Units
shall not be considered Disqualified Stock.
"DOL" means the United States Department of Labor and any successor
department or agency.
"DOLLARS" AND "$" means the lawful money of the United States of
America.
"EBITDA" means, for any period, Net Income, plus (without duplication)
(a) Interest Expense, (b) Tax Expense, (c) Depreciation and Amortization Expense
and (d) cash dividends and distributions actually received by the REIT or any
Consolidated Entity from any Unconsolidated Joint Venture, in each case for such
period.
"ENVIRONMENTAL LAWS" has the meaning set forth in SECTION 4.1(s).
"ENVIRONMENTAL LIEN" means a Lien in favor of any Governmental
Authority for (a) any liability under Environmental Laws, or (b) damages arising
from, or costs incurred by such Governmental Authority in response to, a Release
or threatened Release of a Contaminant into the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"ERISA AFFILIATE" means, with respect to any Person, any
(a) corporation which is, becomes, or is deemed to be a member of the same
controlled group of corporations (within the meaning of Section 414(b) of the
Code) as such Person, (b) partnership, trade or business (whether or not
incorporated) which is, becomes or is deemed to be under common control (within
the meaning of Section 414(c) of the Code) with such Person, (c) solely for
purposes of potential liability under Section 302(c)(11) of ERISA and
Section 412(c)(11) of the Code and the lien created under Section 302(f) of
ERISA and Section 412(n) of the Code, Person which is, becomes or is deemed to
be a member of the same "affiliated service group" (as defined in Section 414(m)
of the Code) as such Person, or (d) solely for purposes of potential liability
under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code and the
lien created under Section 302(f) of ERISA and Section 412(n) of the Code, other
organization or arrangement described in Section 414(o) of the Code which is,
becomes or is deemed to be required to be aggregated pursuant to regulations
issued under Section 414(o) of the Code with such Person pursuant to
Section 414(o) of the Code.
"EVENT OF DEFAULT" means any of the occurrences so defined in
ARTICLE 9.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FEDERAL FUNDS RATE" means, as of any date of determination, the rate
set forth in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Board (including any
such
successor, "H.15(519)") for such date opposite the caption "Federal Funds
(Effective)". If on any relevant date the appropriate rate for such date is not
yet published in H.15(519), the rate for such date will be the arithmetic mean
of the rates for the last transaction in overnight Federal funds arranged prior
to 9:00 a.m. (New York City time) on that date by each of three leading brokers
of Federal Funds transactions in New York City selected by the Agent. For
purposes of this Agreement, any change in the Base Rate due to a change in the
Federal Funds Rate shall be effective as of the opening of business on the
effective date of such change.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal
Reserve System or any governmental authority succeeding to its functions.
"FIRREA" means the Financial Institutions Recovery, Reform and
Enforcement Act of 1989, as amended from time to time.
"FISCAL QUARTER" means each three-month period ending on March 31,
June 30, September 30 and December 31; provided, however, that notwithstanding
the foregoing, the first "Fiscal Quarter" of the REIT and the Consolidated
Entities shall be the period commencing on October 9, 1996 and ending on
December 31, 1996.
"FISCAL YEAR" means the fiscal year of Borrower which shall be the
twelve (12) month period ending on the last day of December in each year.
"FIXED CHARGE COVERAGE RATIO" means, at any time, the ratio of
(i) EBITDA for the Fiscal Quarter then most recently ended, to (ii) Fixed
Charges for such period.
"FIXED CHARGES" means, for any period, the sum of the amounts for such
period of (i) scheduled payments of principal of Debt of the REIT and the
Consolidated Entities (other than any payment of the entire unpaid balance of
any such Debt at its final maturity or balloon payment, referred to herein as a
"BULLET PAYMENT"), (ii) the REIT's and each Consolidated Entity's pro rata share
of scheduled payments of principal of
Debt of Unconsolidated Joint Ventures (other than bullet payments) that does not
otherwise constitute Debt of and is not otherwise recourse to the REIT or such
Consolidated Entity or their assets, (iii) Interest Expense, (iv) an amount
equal to $0.3125 per quarter, multiplied by the weighted average gross leasable
area, measured in square feet and weighted by acquisition date, of all Real
Properties held by the REIT or any of the Consolidated Entities, (v) the REIT's
and each Consolidated Entity's pro rata share of an amount equal to the product
(the "Clause (v) Product") of $0.3125 per quarter, multiplied by the weighted
average gross leasable area, measured in square feet and weighted by acquisition
date, of all Real Properties held by Unconsolidated Joint Ventures and (vi) Tax
Expense, in each case, at the end of such period. For purposes of clause (ii),
the REIT's and such Consolidated Entity's pro rata share of payments by any
Unconsolidated Joint Venture shall be deemed equal to the product of (a) the
payments made by such Unconsolidated Joint Venture, multiplied by (b) the
percentage of the total outstanding Capital Stock of such Unconsolidated Joint
Venture held by the REIT or such Consolidated Entity, expressed as a decimal.
For purposes of clause (v), the REIT's and such Consolidated Entity's pro rata
share of the Clause (v) Product shall be deemed equal to the product of (a) the
Clause (v) Product, multiplied by (b) the percentage of the total outstanding
Capital Stock of such Unconsolidated Joint Ventures held by the REIT or such
Consolidated Entity, expressed as a decimal.
"FIXED RATE NOTICE" means, with respect to a LIBOR Advance pursuant to
SECTION 2.1(b), a notice substantially in the form of EXHIBIT C.
"FIXED RATE PRICE ADJUSTMENT" has the meaning given to such term in
SECTION 2.4(h)(iii).
"FUNDING DATE" means, with respect to any Advance, the date of the
funding of such Advance.
"FUNDS FROM OPERATIONS" shall be interpreted consistently with the
NAREIT Definition and, subject to SECTION 11.3, shall mean, for any period, net
income for such period excluding gains (or losses) from debt restructuring and
sales of Real Property, plus the portion of Depreciation and Amortization
Expenses during such period which is attributable to Real Property, and after
adjustments for Unconsolidated Joint Ventures. (Adjustments for Unconsolidated
Joint Ventures shall be calculated to reflect funds from operations on the same
basis.)
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board, or in such other statements by such
other entity as may be in general use by significant segments of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local, municipal or other political subdivision thereof or any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GROSS ASSET VALUE" means, as of the date of determination, the sum of
(without duplication):
(i) the product of (x) EBITDA of the REIT and the Consolidated
Entities for the fiscal period consisting of the Fiscal Quarter most recently
ended (less EBITDA attributable to Real Property acquired during such Fiscal
Quarter from persons other than Predecessor Entities or Borrower or Affiliates
of Borrower), multiplied by 4, multiplied by (y) 10.0;
(ii) Cash and Cash Equivalents held by the REIT and the Consolidated
Entities on the last day of such most recently ended Fiscal Quarter; and
(iii) ninety percent (90%) of the Acquisition Price for Real Property
acquired by the REIT and the Consolidated Entities (from persons other than
Predecessor Entities or Borrower or Affiliates of Borrower) during such Fiscal
Quarter.
"GUARANTY" means a guaranty of payment in the form of EXHIBIT D.
"GUARANTY OBLIGATION" means, as to any Person, any (a) guarantee by
that Person of Indebtedness of, or other obligation performable by, any other
Person or (b) assurance given by that Person to an obligee of any other Person
with respect to the performance of an obligation by, or the financial condition
of, such other Person, whether direct, indirect or contingent, INCLUDING any
purchase or repurchase agreement covering such obligation or any collateral
security therefor, any agreement to provide funds (by means of loans, capital
contributions or otherwise) to such other Person, any agreement to support the
solvency or level of any balance sheet item of such other Person or any
"keep-well" or other arrangement of whatever nature given for the purpose of
assuring or holding harmless such obligee against loss with respect to any
obligation of such other Person; PROVIDED, HOWEVER, that the term Guaranty
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guaranty
Obligation in respect of Indebtedness shall be deemed to be an amount equal to
the stated or determinable amount of the related Indebtedness (unless the
Guaranty Obligation is limited by its terms to a lesser amount, in which case to
the extent of such amount) or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the Person
in good faith. The amount of any other Guaranty Obligation shall be deemed to
be zero unless and until the amount thereof has been (or in accordance with
Financial Accounting Standards Board Statement No. 5 should be) quantified and
reflected or disclosed in the consolidated financial statements (or notes
thereto) of such Person.
"INDEBTEDNESS" means, as to any Person (without duplication), (a) all
indebtedness, obligations or other liabilities of such Person for borrowed
money, whether or not subordinated and whether with or without recourse beyond
any collateral security, (b) all indebtedness, obligations or other liabilities
of such Person evidenced by Securities or other similar instruments, (c) all
reimbursement obligations and other liabilities of such Person with respect to
letters of
credit or banker's acceptances issued for such Person's account, (d) all
obligations of such Person to pay the deferred purchase price of Property or
services, (e) the principal portion of Capital Lease Obligations of such Person
set forth in the financial statements of such Person and, with respect to each
operating lease, including all ground leases to the extent not treated as
Capital Leases, the present value of all rental payments due over the remaining
term of such lease (using a discount rate of 10%), PROVIDED, HOWEVER, that, to
the extent any ground lease payment has been deducted in determining Net Income,
then such present value shall not be counted as Indebtedness in calculating the
ratio set forth in Section 9.2, (f) all Guaranty Obligations of such Person,
(g) all Contractual Obligations of such Person, (h) all indebtedness,
obligations or other liabilities of such Person or others secured by a Lien on
any asset of such Person, whether or not such indebtedness, obligations or
liabilities are assumed by, or are a personal liability of, such Person
(including, without limitation, the principal amount of any assessment or
similar indebtedness encumbering any property), (i) all indebtedness,
obligations or other liabilities (other than interest expense liability) in
respect of foreign currency exchange agreements, (j) ERISA obligations currently
due and payable, (k) as applied to the REIT and the Consolidated Entities, all
indebtedness, obligations or other liabilities of Unconsolidated Joint Ventures
which are recourse to the REIT and/or any of the Consolidated Entities, (l) the
REIT's and Consolidated Entities' pro rata share of Nonrecourse Debt of
Unconsolidated Joint Ventures, (m) the amount which would be owed by such Person
to any counterparty under any Swap Agreement(s) in the event such Swap
Agreement(s) were terminated as of any date of determination of Indebtedness,
(n) improvement and assessment district taxes (including, without limitation,
taxes under the Xxxxx-Xxxx Community Facilities Act of 1982,) assessed or
otherwise due with respect to any Property of such Person, and (o) without
duplication or limitation, all liabilities and other obligations included in the
financial statements (or notes thereto) of such Person as prepared in accordance
with GAAP. For purposes of clause (l), the REIT's and the Consolidated
Entities' pro rata share of Nonrecourse Debt of any Unconsolidated Joint Venture
shall be deemed to be equal to the product of (i) the Nonrecourse Debt of such
Unconsolidated
Joint Venture, multiplied by (ii) the percentage of the total outstanding
Capital Stock of such Joint Venture held by the REIT or any Consolidated Entity,
expressed as a decimal. With respect to any agreement entered into by such
Person to purchase Real Property, "Indebtedness" shall not include any amount in
excess of the amount (if any) which such Person is obligated to pay as
liquidated damages under such agreement in the event such Person breaches its
obligation to purchase such Real Property.
"INTANGIBLE ASSETS" means assets that are considered intangible assets
under GAAP, including customer lists, goodwill, computer software, copyrights,
trade names, trademarks, patents and Capitalized Loan Fees (other than
capitalized interest with respect to construction in progress).
"INTEREST COVERAGE RATIO" means, at any time, the ratio of (i) EBITDA
for the Fiscal Quarter then most recently ended (or, if shorter, for the period
from the Closing Date to the end of such period), to (ii) Interest Expense for
such period.
"INTEREST EXPENSE" means, for any period, the sum (without
duplication) for such period of (i) total interest expense, whether paid or
accrued, of the REIT and the Consolidated Entities and the portion of any
Capitalized Lease Obligations allocable to interest expense during such period,
including the REIT's and each Consolidated Entity's share of interest expenses
in Unconsolidated Joint Ventures but excluding amortization or writeoff of debt
discount and expense (except as provided in clause (ii) below), (ii) with
respect to the REIT and the Consolidated Entities, amortization of costs related
to Swap Agreements, (iii) with respect to the REIT and the Consolidated
Entities, capitalized interest, (iv) amortization of Capitalized Loan Fees,
(v) to the extent not included in clauses (i), (ii), (iii) and (iv), the REIT's
and each Consolidated Entity's pro rata share of interest expense and other
amounts of the type referred to in such clauses of the Unconsolidated Joint
Ventures, and (vi) interest incurred on any liability or obligation that
constitutes a Guaranty Obligation of the REIT or any Consolidated Entity. For
purposes of clause (v), the REIT's and such Consolidated
Entity's pro rata share of interest expense or other amount of any
Unconsolidated Joint Venture shall be deemed equal to the product of (a) the
interest expense or other relevant amount of such Unconsolidated Joint Venture,
multiplied by (b) the percentage of the total outstanding Capital Stock of such
Unconsolidated Joint Venture held by the REIT or such Consolidated Entity,
expressed as a decimal.
"INTEREST PERIOD" means, with respect to each LIBOR Advance, a period
commencing on a Business Day and ending one (1), two (2), three (3) or six (6)
months thereafter, as specified by the Borrower pursuant to SECTION 2.1(B),
PROVIDED that any such period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such period shall
end on the immediately preceding Business Day.
"INVESTMENT" means, with respect to any Person, (i) any direct or
indirect purchase or other acquisition by that Person of stock or securities, or
any beneficial interest in stock or other securities, of any other Person, any
partnership interest (whether general or limited) in any other Person, or all or
any substantial part of the business or assets of any other Person, (ii) any
direct or indirect loan, advance or capital contribution by that Person to any
other Person, including all indebtedness and accounts receivable from that other
Person that are not current assets or did not arise from sales to that other
Person in the ordinary course of business. The amount of any Investment shall
be the original cost of such Investment, plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment.
"INVESTMENT MORTGAGES" mean mortgages or deeds of trust securing
indebtedness owned by Borrower.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"JOINT VENTURE" means a joint venture, partnership, limited liability
company, business trust or similar arrange-
ment, whether in corporate, partnership or other legal form; provided that, as
to any such arrangement in corporate form, such corporation shall not, as to any
Person of which such corporation is a Subsidiary, be considered to be a Joint
Venture to which such Person is a party.
"LAND" means unimproved (except as otherwise provided in the
definition of "Construction in Progress") land. "Land" does not include
Construction in Progress.
"LENDER TAXES" has the meaning given to such term in SECTION 2.4(G).
"LENDERS" means Xxxxx Fargo (for so long as it holds an interest in a
Note) and any other bank, finance company, insurance or other financial
institution which is or becomes a party to this Agreement by execution of a
counterpart signature page hereto or an Assignment and Assumption, as assignee.
At all times that there are no Lenders other than Xxxxx Fargo, the terms
"Lender" and "Lenders" means Xxxxx Fargo (for so long as it holds an interest in
a Note) in its individual capacity. With respect to matters requiring the
consent to or approval of all Lenders at any given time, all then existing
Defaulting Lenders will be disregarded and excluded, and, for voting purposes
only, "all Lenders" shall be deemed to mean "all Lenders other than Defaulting
Lenders".
"LIABILITIES AND COSTS" means all claims, judgments, liabilities,
obligations, responsibilities, losses, damages (including lost profits),
punitive or treble damages, costs, disbursements and expenses (including,
without limitation, reasonable attorneys', experts' and consulting fees and
costs of investigation and feasibility studies), fines, penalties and monetary
sanctions, interest, direct or indirect, known or unknown, absolute or
contingent, past, present or future.
"LIBOR ADVANCE" means an Advance bearing interest at a fixed rate of
interest determined by reference to the LIBOR Rate.
"LIBOR OFFICE" means, relative to any Lender, the office of such
Lender designated as such on the counterpart
signature pages hereto or such other office of a Lender as designated from time
to time by notice from such Lender to Agent, whether or not outside the
United States, which shall be making or maintaining LIBOR Advances of such
Lender.
"LIBOR RATE" means, with respect to any LIBOR Advance, the rate per
annum (determined solely by the Agent and rounded upward to the next 1/16th of
one percent ) at which deposits in Dollars are offered by the Agent in the
Designated Market at approximately 9:00 a.m. (California time) two (2) Business
Days prior to the first day of the applicable Interest Period in an amount
approximately equal to such LIBOR Advance, and for a period of time comparable
to the number of days in the applicable Interest Period. The determination of
the LIBOR Rate by Agent shall be conclusive in the absence of manifest error.
The foregoing rate of interest shall be reserve adjusted by dividing the LIBOR
Rate by one (1.00) minus the LIBOR Reserve Percentage, with such quotient to be
rounded upward to the nearest whole multiple of one-hundredth of one percent
(0.01%). All references in this Agreement or other Loan Documents to the LIBOR
Rate include the aforesaid reserve adjustment.
"LIBOR RESERVE PERCENTAGE" means, relative to any Interest Period for
LIBOR Advances made by any Lender, the reserve percentage (expressed as a
decimal) equal to the actual aggregate reserve requirements (including all
basic, emergency, supplemental, marginal and other reserves and taking into
account any transactional adjustments or other scheduled changes in reserve
requirements) announced within Agent as the reserve percentage applicable to
Agent as specified under regulations issued from time to time by the Federal
Reserve Board. The LIBOR Reserve Percentage shall be based on Regulation D of
the Federal Reserve Board or other regulations from time to time in effect
concerning reserves for "Eurocurrency Liabilities" from related institutions as
though Agent were in a net borrowing position.
"LIEN" means any mortgage, deed of trust, pledge, negative pledge,
hypothecation, collateral assignment, deposit arrangement, security interest,
encumbrance (including, but not limited to, easements, rights-of-way, zoning
restrictions and
the like), lien (statutory or other), preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever,
including without limitation any conditional sale or other title retention
agreement, the interest of a lessor under a Capital Lease, any financing lease
having substantially the same economic effect as any of the foregoing, and the
filing of any financing statement or document having similar effect (other than
a financing statement filed by a "true" lessor pursuant to 9408 of the Uniform
Commercial Code) naming the owner of the asset to which such Lien relates as
debtor, under the Uniform Commercial Code or other comparable law of any
jurisdiction.
"LOAN ACCOUNT" has the meaning given to such term in SECTION 2.3.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Guaranty and all
other agreements, instruments and documents (together with amendments and
supplements thereto and replacements thereof) now or hereafter executed by the
REIT or Borrower which evidence, guarantee or secure the Obligations, in each
case either as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted.
"MAJOR AGREEMENTS" means, with respect to any Real Property included
within the Unencumbered Pool or which Borrower proposes for inclusion within the
Unencumbered Pool, (a) a lease of such Real Property with respect to 25,000
square feet or more of gross leasable area, and (b) each ground lease affecting
such Real Property.
"MATERIAL ADVERSE EFFECT" means, with respect to a Person, a material
adverse effect upon the condition (financial or otherwise), operations,
performance or properties of such Person. The phrase "has a Material Adverse
Effect" or "will result in a Material Adverse Effect" or words substantially
similar thereto shall in all cases be intended to mean "has resulted, or will or
could reasonably be anticipated to result, in a Material Adverse Effect", and
the phrase "has no (or does not have a) Material Adverse Effect" or "will not
result in a Material Adverse Effect" or words substantially similar thereto
shall in all cases be intended to mean "does not or will not or could not
reasonably be anticipated to result in a Material Adverse Effect".
"MATURITY DATE" has the meaning given to such term in SECTION 2.1(D).
"MINORITY INTERESTS" means that portion of "minority interests" as set
forth in the REIT's financial statements which is attributable to the ownership
interest in Borrower of Persons other than the REIT.
"MULTIEMPLOYER PLAN" means an employee benefit plan defined in
Section 4001(a)(3) of ERISA which is, or within the immediately preceding
six (6) years was, contributed to by a Person or an ERISA Affiliate.
"NAREIT DEFINITION" has the meaning given to such term in SECTION
11.3.
"NET INCOME" means, for any period, total net income (or loss) of the
REIT and the Consolidated Entities for such period, provided that there shall be
excluded therefrom (i) any charge attributable to, or otherwise on account of,
the Minority Interests, (ii) any income or loss attributable to extraordinary
items (including, without limitation, any income or loss attributable to
restructuring of Indebtedness), (iii) gains and losses from sales of assets,
(iv) the Borrower's pro rata share of the income (or loss) of any Unconsolidated
Joint Venture for such period, and (v) except to the extent otherwise included
hereunder, the income (or loss) of any Person accrued prior to the date it
becomes a Consolidated Entity or is merged with the REIT or any Consolidated
Entity or such Person's assets are acquired by the REIT or any Consolidated
Entity. For purposes of this definition, the Borrower's pro rata share of
income (or loss) of any Unconsolidated Joint Venture shall be deemed equal to
the product of (i) the income (or loss) of such Unconsolidated Joint Venture,
multiplied by (ii) the percentage of the total outstanding Capital Stock of such
Person held by the Borrower, expressed as a decimal.
"NET OFFERING PROCEEDS" means (a) all cash proceeds received by the
REIT as a result of the sale of common, preferred or other classes of stock of
the REIT (if and only to the extent reflected in stockholders' equity on the
consolidated balance sheet of the REIT prepared in accordance with GAAP) LESS
customary costs, expenses and discounts of issuance paid by the REIT (all of
which proceeds shall be concurrently contributed by the REIT to Borrower as
additional capital as provided in SECTION 6.2(h), BELOW), PLUS (b) all cash and
the fair market value of the net equity of all properties contributed to
Borrower by one or more Persons in exchange for limited partnership interests in
Borrower.
"NON-PRO RATA ADVANCE" means an Advance with respect to which fewer
than all Lenders have funded their respective Pro Rata Shares of such Advance
and the failure of the non-funding Lender or Lenders to fund its or their
respective Pro Rata Shares of such Advance constitutes a breach of this
Agreement.
"NONRECOURSE DEBT" means any Debt: (a) under the terms of which the
payee's remedies upon the occurrence of a default are limited to specific,
identified assets of the payor which secure such Debt; and (b) for the repayment
of which the payor has no personal liability beyond the loss of such specified
assets, except for liability for fraud, material misrepresentations or misuse or
misapplication of insurance proceeds, condemnation awards or rents, existence of
hazardous waste or other customary exceptions to nonrecourse provisions.
"NOTE" means the promissory note made by Borrower to a Lender
evidencing the Advances under that Lender's Pro Rata Share of the Commitment,
either as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Notes
shall be substantially in the form of EXHIBIT E.
"NOTICE OF BORROWING" means, with respect to a proposed Advance
pursuant to SECTION 2.1(B), a notice substantially in the form of EXHIBIT F.
"OBLIGATIONS" means all present and future obligations and liabilities
of the Borrower of every type and description arising under or in connection
with this Agreement, the Notes and the other Loan Documents due or to become due
to the Lenders or any Person entitled to indemnification, or any of their
respective successors, transferees or assigns, whether for principal, interest,
fees, expenses, indemnities or other amounts (including attorneys' fees and
expenses) and whether due or not due, direct or indirect, joint and/or several,
absolute or contingent, voluntary or involuntary, liquidated or unliquidated,
determined or undetermined, and whether now or hereafter existing, renewed or
restructured, whether or not from time to time decreased or extinguished and
later increased, created or incurred, whether or not arising after the
commencement of a proceeding under the Bankruptcy Code (including post-petition
interest) and whether or not allowed or allowable as a claim in any such
proceeding, and whether or not recovery of any such obligation or liability may
be barred by a statute of limitations or such obligation or liability may
otherwise be unenforceable.
"OFFICE PROPERTY" means any Real Property that is an office building
and any related parking facility.
"OFFICER'S CERTIFICATE" means a certificate signed by a specified
officer of a Person certifying as to the matters set forth therein.
"ORIGINAL CREDIT AGREEMENT" means that certain Revolving Credit
Agreement, dated as of December 17, 1996, by and among Borrower, as borrower,
and Xxxxx Fargo, Commerzbank AG, Los Angeles Branch, Dresdner Bank AG, New York
Branch and Grand Cayman Branch, Fleet National Bank, KeyBank National
Association, Manufacturers Bank, Union Bank of California, N.A., The First
National Bank of Chicago, and PNC Bank, NA, as lenders, and Xxxxx Fargo, as
agent, as from time to time amended, supplemented or otherwise modified.
"ORIGINAL LENDERS" means the "Lenders" as defined in the Original
Credit Agreement.
"ORIGINAL LOAN DOCUMENTS" means the "Loan Documents" as defined in the
Original Credit Agreement.
"ORIGINAL LOAN" means the "Line B Advances" as defined in the Original
Credit Agreement.
"ORIGINAL NOTES" means the "Notes" as defined in the Original Credit
Agreement.
"PARTNERSHIP UNITS" has the meaning established for that term in the
Partnership Agreement of the Borrower.
"PBGC" means the Pension Benefit Guaranty Corporation or any Person
succeeding to the functions thereof.
"PERMIT" means any permit, approval, authorization, license, variance
or permission required from a Governmental Authority under an applicable
Requirement of Law.
"PERMITTED LIENS" mean:
(a) Liens (other than Environmental Liens and any Lien imposed under
ERISA) for taxes, assessments or charges of any Governmental Authority or
claims not yet due and any such taxes, assessments, charges or claims which
are due if they are being contested by Borrower in accordance with
SECTION 6.1(d);
(b) Liens (other than any Lien imposed under ERISA) incurred or
deposits made in the ordinary course of business (including without
limitation surety bonds and appeal bonds) in connection with workers'
compensation, unemployment insurance and other types of social security
benefits or to secure the performance of tenders, bids, leases, contracts
(other than for the repayment of Indebtedness), and statutory obligations;
(c) Liens imposed by laws, such as mechanics' liens and other similar
liens arising in the ordinary course of business which secure payment of
obligations not more than thirty (30) days past due or are being contested
as permitted under this Agreement;
(d) any Liens which are approved by Requisite Lenders; and
(e) rights of lessees under leases and the rights of lessors under
Capital Leases.
"PERSON" means any natural person, corporation, limited partnership,
general partnership, joint stock company, limited liability company, limited
liability partnership, joint venture, association, company, trust, bank, trust
company, land trust, business trust or other organization, whether or not a
legal entity, or any other nongovernmental entity, or any Governmental
Authority.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA
(other than a Multiemployer Plan) in respect of which Borrower or an ERISA
Affiliate, as applicable, is an "employer" as defined in Section 3(5) of ERISA.
"PREDECESSOR ENTITY" means Arden Realty Group, Inc., a California
corporation ("Arden Realty California"), or any Person who was at any time an
Affiliate of Arden Realty California or any Person that owned any of the Real
Properties listed on SCHEDULE 1.1B and contributed such Real Properties to the
REIT or the Borrower.
"PRICE ADJUSTMENT DATE" has the meaning given to such term in
SECTION 2.4(h)(iii).
"PRICING CERTIFICATE" means a certificate in the form of EXHIBIT G,
properly completed and signed by the chief financial officer, chief executive
officer or chief operating officer of Borrower. Each Pricing Certificate shall
be in such detail and contain such supporting information as Agent may
reasonably require.
"PRICING PERIOD" means (a) the period commencing on the Closing Date
and ending on August 19, 1997, (b) the period commencing on each August 20 and
ending on the next following November 19, (c) the period commencing on each
November 20 and ending on the next following February 19, (d) the period
commencing on each February 20 and ending on the next following
May 19, and (e) the period commencing on each May 20 and ending on the next
following August 19.
"PRO RATA SHARE" means, with respect to each Lender, the percentage of
the Commitment set forth opposite the name of that Lender on SCHEDULE 1.1B, as
such percentage may be increased or decreased pursuant to an Assignment and
Assumption executed in accordance with Section 11.20.
"PROCEEDINGS" means, collectively, all actions, suits and proceedings
before, and investigations commenced or threatened by or before, any court or
Governmental Authority with respect to a Person.
"PROPERTY" means, as to any Person, any real or personal property,
building, facility, structure, equipment or unit, or other asset owned and
operated by such Person in the ordinary course of its business.
"PROPERTY EXPENSES" means, for any Office Property, all operating
expenses relating to such Office Property, including the following items
(provided, however, that Property Expenses shall not include Debt Service,
tenant improvement costs, leasing commissions, capital improvements,
Depreciation and Amortization Expenses and any extraordinary items not
considered operating expenses under GAAP):
(i) all expenses for the operation of such Office Property,
including any management fees payable under management contracts,
landscaping costs, janitorial costs, costs for trash pickup and security
costs and all insurance expenses, but not including any expenses incurred
in connection with a sale or other capital or interim capital transaction;
(ii) water charges, property taxes, sewer rents and other
impositions, other than fines, penalties, interest or such impositions (or
portions thereof) that are payable by reason of the failure to pay an
imposition timely;
(iii) the cost of routine maintenance, repairs and minor
alterations, to the extent they can be expensed under GAAP; and
(iv) if Borrower's interest in such Office Property is a ground
leasehold interest, rents paid by Borrower under the ground lease for such
Office Property.
"PROPERTY INCOME" means, for any Office Property, all gross revenue
from the ownership and/or operation of such Office Property (but excluding
income from a sale or other capital item transaction), service fees and charges,
all tenant expense reimbursement income payable with respect to such Office
Property (but not such reimbursement for expenditures not deducted as a Property
Expense), and proceeds of business interruption insurance specifically allocable
to such Office Property.
"PROPERTY INFORMATION" means the following information and other items
with respect to each Real Property which Borrower intends to designate as an
Unencumbered Asset to be added to the Unencumbered Pool:
(i) A physical description of such Real Property, the date upon
which such Real Property was acquired or is proposed to be acquired by
Borrower, the Acquisition Price of such Real Property, if the building
located on such Real Property or the use of such building does not conform
to applicable zoning ordinances and laws, a description of such
nonconformity and whether such building or use is a legal nonconforming
use, a copy of any reports delivered to Borrower with respect to the
structural integrity of improvements located on such Real Property and
Borrower's preliminary budget for nonrevenue enhancing capital expenditures
for such Real Property for the next succeeding eight (8) Fiscal Quarters;
(ii) A current operating statement for such Real Property,
audited or certified by Borrower as being true and correct in all material
respects and prepared in accordance with GAAP, and comparative operating
statements for the current interim fiscal period and for the previous
two (2) Fiscal Years (or such lesser period as it has been operating);
PROVIDED, HOWEVER, that, if Borrower shall have owned such Real Property
for less than the period to be covered by such operating statements and
comparative operating statements, then the audit and certification
requirements shall extend only to the period of ownership by Borrower, and
Borrower shall provide to Agent complete copies of any operating statements
prepared by former owner(s) of such Real Property with respect to the
remainder of the periods required hereunder, if the same are available to
Borrower;
(iii) A current Rent Roll for such Real Property, certified by
Borrower as being true and correct (or if Borrower does not presently own
the Property, a copy of the Rent Roll prepared by the seller thereof);
(iv) A "Phase I" environmental assessment of such Real Property
not more than twelve (12) months old, prepared by an environmental
engineering firm reasonably acceptable to Agent;
(v) Copies of all Major Agreements affecting such Real Property;
(vi) A copy of Borrower's most recent Owner's or Leasehold
Policy of Title Insurance, if any, covering such Real Property or, for Real
Property to be acquired, a preliminary title report; and
(vii) If Borrower's interest in such Real Property is a ground
leasehold interest, a copy of the ground lease pursuant to which Borrower
leases such Real Property and all amendments thereto and memoranda thereof.
"PROPERTY NOI" means, for any Office Property for any period, (i) all
Property Income for such period, minus (ii) all Property Expenses for such
period.
"RATING NOTICE" means written notice from Borrower to Agent delivered
during the period commencing on the first day of a Fiscal Quarter and ending on
the 45th day of such Fiscal
Quarter and certifying that, as of the last day of the Fiscal Quarter most
recently ended, (i) Borrower's long-term unsecured senior Debt was rated by
Standard & Poor's (and setting forth such rating and certifying thereto),
(ii) Borrower's long-term unsecured senior Debt was rated by one of the other
rating agencies referred to in the last sentence of the definition of
"Applicable Pricing Level" (and setting forth such rating and certifying
thereto) and (iii) the lower of such ratings was BBB- (which is a Standard &
Poor's rating or its equivalent by such other rating agency) or higher.
"REAL PROPERTY" means each lot or parcel (or portions thereof) of real
property, improvements and fixtures thereon and appurtenances thereto now or
hereafter owned or leased by the Borrower or any other Consolidated Entity.
"REGULATIONS G, T, U AND X" mean such Regulations of the Federal
Reserve Board as in effect from time to time.
"REIT" means Arden Realty, Inc., a Maryland corporation.
"RELEASE" means the release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment or into or out of any Property, including the
movement of Contaminants through or in the air, soil, surface water, groundwater
or property.
"REMEDIAL ACTION" means any action required by applicable
Environmental Laws to (a) clean up, remove, treat or in any other way address
Contaminants in the indoor or outdoor environment; (b) prevent the Release or
threat of Release or minimize the further Release of Contaminants so they do not
migrate or endanger or threaten to endanger public health or welfare or the
indoor or outdoor environment; or (c) perform pre-remedial studies and
investigations and post-remedial monitoring and care.
"RENT ROLL" means, with respect to any Real Property, a rent roll for
such Real Property stating for each tenancy within such Real Property the
identity of the lessee, the suite
designation of the space leased, the gross leasable area included within such
space, the date of commencement and the date of termination of such tenancy, the
periods of any options to extend or terminate such tenancy, the base rent and
any escalations or operating expense reimbursement payable in respect of such
tenancy and the type of lease (I.E., gross or degree to which net of expenses,
taxes and other items).
"REPORTABLE EVENT" means any of the events described in
Section 4043(c) of ERISA, other than an event for which the thirty (30) day
notice requirement is waived by regulations.
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-
laws, partnership agreement or other organizational or governing documents of
such Person, and any law, rule or regulation, Permit, or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject, including without limitation, the Securities
Act, the Securities Exchange Act, Regulations G, T, U and X, FIRREA and any
certificate of occupancy, zoning ordinance, building, environmental or land use
requirement or Permit or occupational safety or health law, rule or regulation.
"REQUISITE LENDERS" means, collectively, Agent and Lenders whose Pro
Rata Shares, in the aggregate, are at least sixty-six and two-thirds
percent (66-2/3%), PROVIDED that, in determining such percentage at any given
time, all then existing Defaulting Lenders will be disregarded and excluded and
the Pro Rata Shares of Lenders shall be redetermined, for voting purposes only,
to exclude the Pro Rata Shares of such Defaulting Lenders.
"RESPONSIBLE OFFICIAL" means (a) when used with reference to a Person
other than an individual, any corporate officer of such Person, general partner
of such Person, corporate officer of a corporate general partner of such Person,
or corporate officer of a corporate general partner of a partnership that is a
general partner of such Person, or any other responsible official thereof acting
on behalf thereof,
and (b) when used with reference to a Person who is an individual, such Person.
"S-11" means the Form S-11 Registration Statement under the Securities
Act filed by the REIT with the Commission on July 16, 1996, as amended.
"SECURITIES" means any stock, shares, voting trust certificates,
bonds, debentures, notes or other evidences of indebtedness, secured or
unsecured, convertible, subordinated or otherwise, or in general any instruments
commonly known as "securities", or any certificate of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include any evidence of the Obligations, PROVIDED that
Securities shall not include Cash Equivalents, Investment Mortgages or equity
investments in Unconsolidated Joint Ventures.
"SECURITIES ACT" means the Securities Act of 1933, as amended to the
date hereof and from time to time hereafter, and any successor statute.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended to the date hereof and from time to time hereafter, and any successor
statute.
"SENIOR LOANS" has the meaning given to such term in SECTION 10.4(b).
"SOLVENCY CERTIFICATE" means a certificate in the form of EXHIBIT H.
"SOLVENT" means as to any Person at the time of determination, that
such Person (a) owns Property the value of which (both at fair valuation and at
present fair saleable value) is greater than the amount required to pay all of
such Person's liabilities (including the probable amount of contingent
liabilities and debts); (b) is able to pay all of its debts as such debts mature
(including through refinancing on commercially reasonable terms); and (c) has
capital
sufficient to carry on its business and transactions and all business and
transactions in which it is about to engage.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies.
"STOCKHOLDERS' EQUITY" means, as of any date of determination, the
consolidated Stockholders' Equity of the REIT as of that date determined in
accordance with GAAP and shown in the financial statements of the REIT and the
Consolidated Entities; provided that there shall be excluded from Stockholders'
Equity any amount attributable to Disqualified Stock.
"SUBSIDIARY" means, as of any date of determination and with respect
to any Person, any corporation, limited liability company or partnership
(whether or not, in either case, characterized as such or as a "joint venture"),
whether now existing or hereafter organized or acquired: (a) in the case of a
corporation or limited liability company, of which a majority of the Securities
having ordinary voting power for the election of directors or other governing
body (other than Securities having such power only by reason of the happening of
a contingency) are at the time beneficially owned by such Person and/or one or
more Subsidiaries of such Person, or (b) in the case of a partnership, of which
a majority of the partnership or other ownership interests are at the time
beneficially owned by such Person and/or one or more of its Subsidiaries.
"SWAP AGREEMENT" means a written agreement between Borrower and one or
more financial institutions providing for "swap", "cap", "collar", "floor," "buy
down" or other interest rate protection with respect to any Indebtedness, in
form and substance acceptable to Agent.
"TANGIBLE NET WORTH" means, at any time, the Stockholders' Equity,
PLUS Minority Interests, PLUS cumulative net additions of Depreciation and
Amortization Expense deducted in determining income for all Fiscal Quarters
ending after the "Closing Date" (as defined in the Original Credit Agreement),
MINUS Intangible Assets.
"TAX EXPENSE" means (without duplication), for any period, total tax
expense (if any) attributable to income and franchise taxes based on or measured
by income, whether paid or accrued, of the REIT and the Consolidated Entities,
including the REIT's and each Consolidated Entity's pro rata share of tax
expenses in each Unconsolidated Joint Venture. For purposes of this definition,
the REIT's and such Consolidated Entity's pro rata share of any such tax expense
of such Unconsolidated Joint Venture shall be deemed equal to the product of (i)
such tax expense of such Unconsolidated Joint Venture, multiplied by (ii) the
percentage of the total outstanding Capital Stock of such Unconsolidated Joint
Venture held by the REIT or such Consolidated Entity, expressed as a decimal.
"TERMINATION EVENT" means (a) any Reportable Event, (b) the withdrawal
of a Person or an ERISA Affiliate of such Person from a Benefit Plan during a
plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, (c) the occurrence of an obligation arising under
Section 4041 of ERISA of a Person or an ERISA Affiliate of such Person to
provide affected parties with a written notice of an intent to terminate a
Benefit Plan in a distress termination described in Section 4041(c) of ERISA,
(d) the institution by the PBGC of proceedings to terminate any Benefit Plan
under Section 4042 of ERISA, (e) any event or condition which constitutes
grounds under Section 4042 of ERISA for the appointment of a trustee to
administer a Benefit Plan, (f) the partial or complete withdrawal of such Person
or any ERISA Affiliate of such Person from a Multiemployer Plan, or (g) the
adoption of an amendment by any Person or any ERISA Affiliate of such Person to
terminate any Benefit Plan.
"TOTAL LIABILITIES" means, at any time, without duplication, the
aggregate amount of (i) all Indebtedness and other liabilities of the REIT and
the Consolidated Entities reflected in the financial statements of the REIT or
disclosed in the financial notes thereto, plus (ii) all liabilities of all
Unconsolidated Joint Ventures that are recourse to the REIT or any Consolidated
Entity or any of its assets or that otherwise constitute Indebtedness of the
REIT or any Consolidated Entity, plus (iii) the REIT's and each Consolidated
Entity's pro rata share of all Indebtedness and
other liabilities of any Unconsolidated Joint Venture not otherwise constituting
Indebtedness of the REIT or such Consolidated Entity, plus (iv) all Guaranty
Obligations of the REIT and the Consolidated Entities. For purposes of
clause (iii), the REIT's and such Consolidated Entity's pro rata share of all
Indebtedness and other liabilities of any Unconsolidated Joint Venture shall be
deemed equal to the product of (a) such Indebtedness or other liabilities,
multiplied by (b) the percentage of the total outstanding Capital Stock of such
Person held by the REIT or such Consolidated Entity, expressed as a decimal.
Total Liabilities shall not include Minority Interests.
"TO THE BEST KNOWLEDGE OF" means, when modifying a representation,
warranty or other statement of any Person, that the fact or situation described
therein is known by the Person (or, in the case of a person other than a natural
person, known by a Responsible Official of that Person) making the
representation, warranty or other statement, or with the exercise of reasonable
due diligence under the circumstances (in accordance with the standard of what a
reasonable Person in similar circumstances would have done) would have been
known by the Person (or, in the case of a Person other than a natural Person,
would have been known by a Responsible Official of that Person).
"UNCONSOLIDATED JOINT VENTURE" means any Joint Venture of the REIT or
any Consolidated Entity in which the REIT or such Consolidated Entity holds any
Capital Stock but which would not be combined with the REIT in the consolidated
financial statements of the REIT in accordance with GAAP.
"UNENCUMBERED ASSET VALUE" means, at any time, with respect to a
specified Unencumbered Asset, (i) for Unencumbered Assets that have been Wholly-
Owned by the Borrower or "Wholly-Owned" by a Predecessor Entity for at least one
full Fiscal Quarter at such time, the product of the Property NOI of such
Unencumbered Assets during the period of the full Fiscal Quarter ended most
recently multiplied by 4, divided by 10.0% (expressed as a decimal), or (ii) for
Unencumbered Assets that have been Wholly-Owned by the Borrower or a Predecessor
Entity for less than one full Fiscal Quarter at such time, an amount
equal to ninety percent (90%) of the Acquisition Price for such Unencumbered
Assets.
"UNENCUMBERED ASSET" means any Real Property designated by Borrower
that satisfies all of the following conditions:
(i) is an Office Property;
(ii) is free and clear of any Lien, other than (a) easements,
covenants, and other restrictions, charges or encumbrances not securing
Indebtedness that do not interfere materially with the ordinary operations of
such Real Property and do not materially detract from the value of such Real
Property; (b) building restrictions, zoning laws and other Requirements of Law,
and (c) leases and subleases of such Real Property in the ordinary course of
business, and (d) Permitted Liens;
(iii) is Wholly-Owned;
(iv) such Real Property is not less than 70% leased;
(v) after adding such Real Property to the Unencumbered Pool, the
Real Properties in the Unencumbered Pool shall not be less than 85% leased; and
(vi) the Real Property has been expressly approved by the Requisite
Lenders in writing as an Unencumbered Asset.
As of the date hereof all Unencumbered Assets are described on
SCHEDULE 8.5, provided that if any Unencumbered Asset (including any of the
properties listed on SCHEDULE 8.5) no longer satisfies any of the conditions set
forth in the foregoing clauses (i) through (v), inclusive, the Requisite Lenders
shall have the right, at any time and from time to time, to notify the Borrower
that, effective upon the giving of such notice, such asset shall no longer be
considered an Unencumbered Asset. If the Borrower intends to designate a Real
Property as an Unencumbered Asset to be added to the Unencumbered Pool from time
to time, it will notify the Agent
of such intention, which notice will include, with respect to such Real
Property, the Property Information with respect to such Real Property, and such
other information and items as may be reasonably requested by Agent with respect
to such Real Property. If the Borrower at any time intends to withdraw any Real
Property from the Unencumbered Pool, it shall (A) notify the Agent of its
intention, and (B) deliver to the Agent a certificate of its chief financial
officer, chief executive officer or chief operating officer setting forth the
calculations establishing that the Borrower will be in compliance with
SECTION 8.5 with giving effect to such withdrawal (and any concurrent addition
of Real Properties to the Unencumbered Pool), which calculations shall be in
such detail, and otherwise in such form and substance, as Agent reasonably
requires. Effective automatically upon receipt of such notice and certificate
by the Agent (or upon any later date stated in such notice), such Real Property
shall no longer constitute an Unencumbered Asset. The following three Real
Properties are set forth in SCHEDULE 8.5 under the heading "Real Properties
Conditionally Approved as Unencumbered Assets": 0000/0000 Xxxx Xxxxx Xxxxxx,
000 Xxxxx Xxxxxx and 0000 Xxxxxxx Xxxxxxxxx. Each such Real Property is, as of
the date of this Agreement, less than 70% leased and has thus not satisfied the
condition set forth in clause (iv), above. However, all of the Lenders agree
that, with respect to each such Real Property, (1) all of the other conditions
set forth have been satisfied and (2) at such time as Borrower delivers to Agent
written evidence reasonably satisfactory to Agent ("Borrower's Unencumbered
Asset Notice") that such Real Property is 70% or more leased and provided that,
as reasonably determined by Agent, the conditions set forth in clauses (i),
(ii), and (v), above, remain satisfied, such Real Property shall become an
Unencumbered Asset without any further action by the Lenders as of the date on
which Agent, in response to its receipt of the Borrower's Unencumbered Asset
Notice, gives Borrower written confirmation that such Real Property is an
Unencumbered Asset. Agent shall deliver copies of each such notice to all
Lenders. No Unencumbered Asset shall be Construction in Progress.
"UNENCUMBERED POOL" means the pool of Unencumbered Assets.
"UNENCUMBERED POOL STATEMENTS" has the meaning given to such term in
SECTION 5.1(f).
"UNMATURED EVENT OF DEFAULT" means an event which, with the giving of
notice or the lapse of time, or both, would constitute an Event of Default.
"UNSECURED FUNDED INDEBTEDNESS" means Debt that is not secured by any
Lien and includes, without limitation, outstanding Advances.
"UNSECURED INTEREST EXPENSE COVERAGE RATIO" means, at the time of
determination, the ratio of (i) Property NOI of all Unencumbered Assets for the
Fiscal Quarter then most recently ended (or, if shorter, for the period from the
Closing Date to the end of such period), to (ii) Interest Expense on all
Unsecured Funded Indebtedness for such period.
"UNUSED FACILITY FEE" has the meaning given to such term in
SECTION 2.5(B).
"WFB SWAP AGREEMENT" means any Swap Agreement entered into between
Xxxxx Fargo and Borrower, including, without limitation, that certain ISDA
Master Agreement, dated as of December 17, 1996, between Borrower and Xxxxx
Fargo.
"WHOLLY-OWNED" means, with respect to any Real Property, that title to
such Real Property is held in fee directly by the Borrower or that Borrower is
the lessee under a ground lease approved by the Agent.
1.2 COMPUTATION OF TIME PERIODS. In this Agreement, in the computation of
periods of time from a specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until" each mean to and
including". Periods of days referred to in this Agreement shall be counted in
calendar days unless Business Days are expressly prescribed.
1.3 TERMS.
(a) Any accounting terms used in this Agreement which are not
specifically defined shall be construed in conformity with, and all financial
data required to be submitted by this Agreement shall be prepared in conformity
with, GAAP, EXCEPT as otherwise specifically prescribed in this Agreement.
(b) In each case where the consent or approval of Agent, all Lenders
and/or Requisite Lenders is required, or their non-obligatory action is
requested by Borrower, such consent, approval or action shall be in the sole and
absolute discretion of Agent and, as applicable, each Lender, unless otherwise
specifically indicated.
(c) Any time the word "or" is used herein, unless the context
otherwise clearly requires, it has the inclusive meaning represented by the
phrase "and/or". The words "hereof", "herein", "hereby", "hereunder" and
similar terms refer to this Agreement as a whole and not to any particular
provision of this Agreement. Article, section, subsection, clause, exhibit and
schedule references are to this Agreement unless otherwise specified. Any
reference in this Agreement to this Agreement or to any other Loan Document
includes any and all amendments, modifications, supplements, renewals or
restatements thereto or thereof, as applicable.
ARTICLE 2
ADVANCES
2.1 LOAN ADVANCES AND REPAYMENT.
(a) LOAN AVAILABILITY.
(i) Subject to the terms and conditions set forth in this
Agreement, Lenders hereby agree to make Advances to Borrower from time to
time during the period
from the Closing Date to the Business Day next preceding the Maturity Date,
subject to the following:
(x) The aggregate principal amount of all outstanding
Advances shall not at any time exceed Three Hundred Million Dollars
($300,000,000); and
(y) the aggregate principal amount of all outstanding
Advances shall not at any time exceed the lesser of (1) the
Commitment or (2) the amount which, when combined with all
components of the unsecured Total Liabilities of the REIT and the
Consolidated Entities other than outstanding Advances as of the date
of determination, is equal to fifty percent (50%) of the aggregate
Unencumbered Asset Value of the Unencumbered Pool as of such date.
All Advances under this Agreement shall be made by Lenders simultaneously
and proportionately to their respective Pro Rata Shares. Borrower
acknowledges and agrees that neither the Agent nor any Lender shall be
responsible for any failure by any other Lender to perform its obligation
to make an Advance hereunder and that the Pro Rata Share of the
Commitment of any Lender shall not be increased or decreased as a result
of the failure by any other Lender to perform its obligation to make an
Advance. Advances may be voluntarily prepaid pursuant to SECTION 2.6(a)
and, subject to the provisions of this Agreement, any amounts so prepaid
may be reborrowed under this SECTION 2.1(a)(i). Interest shall accrue
and be payable on outstanding Advances as provided in SECTION 2.4. The
principal balance of the Advances shall be payable in full on the
Maturity Date. The obligation of Borrower to repay Advances will be
evidenced by the Notes.
(b) NOTICE OF BORROWING.
(i) Whenever Borrower desires to borrow under this
SECTION 2.1, but in no event more than five (5) times during any one (1)
calendar month, Borrower
shall give Agent, at Xxxxx Fargo Real Estate Group Disbursement Center,
0000 Xxxx Xxxx Xxxxx, Xxxxx 000, Xx Xxxxxxx, Xxxxxxxxxx 00000, Attention:
Xx. Xxxxxxxx XxXxxx (telephone: (000) 000-0000; telecopier: (310) 615-
1014), with a copy to: Xxxxx Fargo Bank, Real Estate Group, 000 Xxxxx
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxxx Xxxxx, or at such other addresses as Agent shall designate, an
original or facsimile Notice of Borrowing no later than 9:00 A.M.
(San Francisco time), not less than three (3) nor more than five (5)
Business Days prior to the proposed Funding Date of each Advance. Each
Notice of Borrowing shall specify (A) the Funding Date (which shall be a
Business Day) of the proposed Advance, (B) the amount of the proposed
Advance, PROVIDED that the aggregate amount of such proposed Advance
shall, if such Advance is a LIBOR Advance, equal One Million
Dollars ($1,000,000) or integral multiples of Fifty Thousand
Dollars ($50,000) in excess thereof, and PROVIDED FURTHER that the
aggregate amount of such proposed Advance shall, if such Advance is a
Base Rate Advance, be equal to or greater than Two Hundred Fifty
Thousand Dollars ($250,000), (C) whether the Advance to be made
thereunder will be a Base Rate Advance or a LIBOR Advance and, if a LIBOR
Advance, the Interest Period, and (D) the proposed use of such Advance.
Any Notice of Borrowing pursuant to this SECTION 2.1(b) shall be
irrevocable.
(ii) Borrower may elect (A) to convert LIBOR Advances or any
portion thereof into Base Rate Advances, or (B) to convert Base Rate
Advances or any portion thereof to LIBOR Advances, or (C) to convert
LIBOR Advances or any portion thereof into new LIBOR Advances, PROVIDED,
HOWEVER, that the aggregate amount of the Advances being converted into
or continued as LIBOR Advances shall, in the aggregate, equal One Million
Dollars ($1,000,000) or an integral multiple of Fifty Thousand
Dollars ($50,000) in excess thereof. The conversion of a LIBOR Advance
to a Base Rate Advance or to a new LIBOR Advance shall only occur on the
last Business Day of the Interest Period relating to such LIBOR Advance.
Each election under clause (B) above shall be made by
Borrower giving Agent an original or facsimile Notice of Borrowing no
later than 9:00 A.M. (San Francisco time), not less than three (3) nor
more than five (5) Business Days prior to the date of proposed conversion
to a LIBOR Advance. Each election under clause (C) above shall be made
by Borrower giving Agent an original or facsimile Notice of Borrowing no
later than 9:00 A.M. (San Francisco time), not less than three (3) nor
more than five (5) Business Days prior to the last day of the Interest
Period for the LIBOR Advance in question. Each Notice of Borrowing
delivered pursuant to this SECTION 2.1(b)(ii) shall specify (1) the
amount of the new LIBOR Advance or Base Rate Advance, as the case may be,
(2) with respect to a new LIBOR Advance, the Interest Period therefor,
and (3) the date of the effectiveness of the LIBOR Rate or Base Rate, as
the case may be (which date shall be a Business Day).
(iii) Upon receipt of a Notice of Borrowing in proper form
requesting LIBOR Advances under subparagraph (i) or (ii) above, Agent
shall deliver a copy thereof (by facsimile) to each Lender by noon
(San Francisco time) on the same day of Agent's receipt thereof and shall
determine the LIBOR Rate applicable to the Interest Period for such LIBOR
Advances, and shall, two (2) Business Days prior to the beginning of such
Interest Period, give (by facsimile) a Fixed Rate Notice in respect
thereof to Borrower and Lenders; PROVIDED, HOWEVER, that failure to give
such notice to Borrower shall not affect the validity of such rate. Each
determination by Agent of the LIBOR Rate shall be conclusive and binding
upon the parties hereto in the absence of manifest error.
(iv) If Borrower does not make a timely election to convert
all or a portion of a LIBOR Advance into a new LIBOR Advance in
accordance with SECTION 2.1(b)(ii), such LIBOR Advance shall be
automatically converted to a Base Rate Advance upon expiration of the
Interest Period applicable to such LIBOR Advance.
(c) MAKING OF ADVANCES. Subject to SECTION 10.3 or as otherwise
provided herein, Agent shall deposit the proceeds of each new Advance in
Borrower's account number 0000-000-000 at the Los Angeles main office of Agent.
(d) TERM. The outstanding balance of the Advances shall be payable
in full on the EARLIEST TO OCCUR OF, (i) June 1, 2000, (ii) the acceleration of
the Advances pursuant to SECTION 9.2(a), or (iii) Borrower's written notice to
Agent (pursuant to SECTION 2.8) of Borrower's election to prepay all accrued
Obligations and terminate the Commitment (said earliest date referred to herein
as the "Maturity Date").
(e) ORIGINAL LOAN.
(i) Effective as of the Closing Date, all Indebtedness and
Obligations of Borrower relating to the Original Loan and arising under the
Original Credit Agreement, the Original Notes and any other Original Loan
Documents are hereby amended and restated in full by this Agreement, the Notes
and the Loan Documents. On the Closing Date, the Original Notes shall be
canceled and promptly thereafter returned to Borrower. Without limiting the
generality of the foregoing, effective as of the Closing Date, the commitment to
disburse the "Line A Loan" (as defined in the Original Credit Agreement) and the
undisbursed portion of the Original Loan shall automatically terminate, and
Borrower acknowledges and agrees that, effective as of the Closing Date, no
Original Lender (or any Lender) shall have any further obligations to Borrower
under the Original Credit Agreement, the Original Notes or any other Original
Loan Documents.
(ii) On June 11, 1997, certain of the Lenders shall purchase,
and certain of the Lenders shall sell, to one another, the percentage interest
in the Commitment as reflected in SCHEDULE 2.1(e) hereto, in order to reallocate
the Carryover Principal Balance under the Notes among the Lenders to correspond
to the Pro Rata Shares of the Lenders specified in SCHEDULE 1.1A hereto. The
applicable purchase price payments are specified in SCHEDULE 2.1(e) hereto and
are referred to herein as the "Adjusting Purchase Payments". The
Adjusting Purchase Payments shall be made to the Agent by the applicable
purchasing Lender by Federal Reserve wire transfer initiated by the payor no
later than 8:00 a.m. California time on June 11, 1997. Upon receipt of all such
payments, the Agent shall promptly send appropriate portions thereof to the
selling Lenders by Federal Reserve wire transfer. The parties to this Agreement
acknowledge that the Adjusting Purchase Payments do not include interest, which
Borrower is obligated pursuant to the terms of SECTION 6.1(k) to pay through and
including June 11, 1997.
2.2 AUTHORIZATION TO OBTAIN ADVANCES. SCHEDULE 2.2 sets forth the names
of those employees of Borrower authorized by Borrower to sign Notices of
Borrowing, and Agent and Lenders shall be entitled to rely on such Schedule
until notified in writing by Borrower of any change(s) of the persons so
authorized. Agent shall be entitled to act on the instructions of anyone
identifying himself or herself as one of the Persons authorized to execute a
Notice of Borrowing, and Borrower shall be bound thereby in the same manner as
if such Person were actually so authorized. Borrower agrees to indemnify,
defend and hold Lenders and Agent harmless from and against any and all
Liabilities and Costs which may arise or be created by the acceptance of
instructions in any Notice of Borrowing, unless caused by the gross negligence
or willful misconduct of the Person to be indemnified.
2.3 LENDERS' ACCOUNTING. Agent shall maintain a loan account (the "Loan
Account") on its books in which shall be recorded (a) the names and addresses
and the Pro Rata Shares of the Commitment of each of the Lenders, and principal
amount of Advances owing to each Lender from time to time, and (b) all Advances
and repayments of principal and payments of accrued interest, as well as
payments of fees required to be paid pursuant to this Agreement. All entries in
the Loan Account shall be made in accordance with Agent's customary accounting
practices as in effect from time to time. Monthly or at such other interval as
is customary with Agent's practice, Agent will render a statement of the Loan
Account to Borrower and will deliver a copy thereof to each Lender. Each such
statement shall be deemed final, binding and conclusive upon
Borrower in all respects as to all matters reflected therein (absent manifest
error).
2.4 INTEREST ON THE ADVANCES.
(a) BASE RATE ADVANCES. Subject to SECTION 2.4(d), all Base Rate
Advances shall bear interest on the daily unpaid principal amount thereof from
the date made until paid in full at a fluctuating rate per annum equal to the
Base Rate. Base Rate Advances shall be made in minimum amounts of Two Hundred
Fifty Thousand Dollars ($250,000).
(b) LIBOR ADVANCES. Subject to SECTIONS 2.4(d) and 2.4(h), LIBOR
Advances shall bear interest on the unpaid principal amount thereof during the
Interest Period applicable thereto at a rate per annum equal to the sum of the
LIBOR Rate for such Interest Period PLUS the Applicable LIBOR Rate Margin.
LIBOR Advances shall be in amounts of One Million Dollars ($1,000,000) or Fifty
Thousand Dollar ($50,000) increments in excess thereof. No more than six (6)
LIBOR Advances shall be outstanding at any one time. Notwithstanding anything
to the contrary contained herein and subject to the default interest provisions
contained in SECTION 2.4(d), if an Event of Default occurs and as a result
thereof the Commitment is terminated, all LIBOR Advances will convert to Base
Rate Advances upon the expiration of the applicable Interest Periods therefor or
the date all Advances become due, whichever occurs first.
(c) INTEREST PAYMENTS. Subject to SECTION 2.4(d), interest accrued
on all Advances shall be payable by Borrower, in the manner provided in
SECTION 2.6(b), in arrears on the first Business Day of the first calendar month
following the Closing Date, the first Business Day of each succeeding calendar
month thereafter, and on the Maturity Date.
(d) DEFAULT INTEREST. Notwithstanding the rates of interest
specified in SECTIONS 2.4(a) and 2.4(b) and the payment dates specified in
SECTION 2.4(c), effective at the option of Requisite Lenders following the
occurrence and during the continuance of any Event of Default, the principal
balance of all Advances then outstanding and, to the extent permitted
by applicable law, any interest payments not paid when due, shall bear interest,
payable upon demand, at a rate which is five percent (5%) per annum in excess of
the rate(s) of interest otherwise payable from time to time under this
Agreement. Notwithstanding anything to the contrary in any of the other Loan
Documents, all other amounts due Agent or Lenders (whether directly or for
reimbursement) under this Agreement or any of the other Loan Documents if not
paid when due, or if no time period is expressed, if not paid within ten (10)
days after demand, shall bear interest from and after demand at the rate set
forth in this SECTION 2.4(d).
(e) LATE FEE. Borrower acknowledges that late payment to Agent
will cause Agent and Lenders to incur costs not contemplated by this Agreement.
Such costs include, without limitation, processing and accounting charges.
Therefore, if Borrower fails timely to pay any sum due and payable hereunder
through the Maturity Date, unless waived by Agent pursuant to the last sentence
of this SECTION 2.4(e) or by Requisite Lenders, a late charge of four
cents ($.04) for each dollar of any such principal payment, interest or other
charge which is due hereon and which is not paid within fifteen (15) days after
such payment is due, shall be charged by Agent (for the benefit of Lenders) and
paid by Borrower for the purpose of defraying the expense incident to handling
such delinquent payment. Borrower, Lenders and Agent agree that this late
charge represents a reasonable sum considering all of the circumstances existing
on the date hereof and represents a fair and reasonable estimate of the costs
that Agent and Lenders will incur by reason of late payment. Borrower, Lenders
and Agent further agree that proof of actual damages would be costly and
inconvenient. Acceptance of any late charge shall not constitute a waiver of
the default with respect to the overdue installment, and shall not prevent Agent
from exercising any of the other rights available hereunder or under any other
Loan Document. Such late charge shall be paid without prejudice to any other
rights or remedies of Agent or any Lender. Lenders agree that, notwithstanding
the foregoing, no such late charge shall be charged by Agent or any Lender if
the outstanding Advances are then bearing interest at the default rate of
interest set forth in SECTION 2.4(d). Agent is hereby authorized on behalf of
all Lenders, without the
necessity of any notice to, or further consent from, any Lender, to waive the
imposition of the late fees provided for in this SECTION 2.4(e) up to a maximum
of three (3) times per calendar year.
(f) COMPUTATION OF INTEREST. Interest shall be computed on the
basis of the actual number of days elapsed in the period during which interest
or fees accrue and a year of three hundred sixty (360) days. In computing
interest on any Advance, subject to Section 2.6(b), the date of the making of
the Advance shall be included and the date of payment shall be excluded;
PROVIDED, HOWEVER, that if an Advance is repaid on the same day on which it is
made, one (1) day's interest shall be paid on that Advance. Notwithstanding any
provision in this SECTION 2.4, interest in respect of any Advance shall not
exceed the maximum rate permitted by applicable law.
(g) CHANGES; LEGAL RESTRICTIONS. In the event that, after the
Closing Date, (i) the adoption of or any change in any law, treaty, rule,
regulation, guideline or determination of a court or Governmental Authority or
any change in the interpretation or application thereof by a court or
Governmental Authority, or (ii) compliance by Agent or any Lender with any
request or directive made or issued after the Closing Date (whether or not
having the force of law and whether or not the failure to comply therewith would
be unlawful) from any central bank or other Governmental Authority or quasi-
governmental authority:
(A) subjects Agent or any Lender to any tax, duty or other
charge of any kind with respect to the Commitment, this Agreement or any
of the other Loan Documents, including the Notes or the Advances, or
changes the basis of taxation of payments to Agent or such Lender of
principal, fees, interest or any other amount payable hereunder, except
for net income, gross receipts, gross profits or franchise taxes imposed
by any jurisdiction and not specifically based upon loan transactions
(all such non-excepted taxes, duties and other charges being hereinafter
referred to as "Lender Taxes");
(B) imposes, modifies or holds applicable, in the
determination of Agent or any Lender, any reserve, special deposit,
compulsory loan, FDIC insurance, capital allocation or similar
requirement against assets held by, or deposits or other liabilities in
or for the account of, advances or loans by, or other credit extended by,
or any other acquisition of funds by, Agent or such Lender or any
applicable lending office (except to the extent that the reserve and FDIC
insurance requirements are reflected in the "Base Rate" or in determining
the LIBOR Rate); or
(C) imposes on Agent or any Lender any other condition
materially more burdensome in nature, extent or consequence than those in
existence as of the Closing Date,
and the result of any of the foregoing is to increase the cost to Agent or any
Lender of making, renewing, maintaining or participating in the Advances or to
reduce any amount receivable thereunder; THEN, in any such case, Borrower shall
promptly pay to Agent or such Lender, as applicable, within seven (7) days after
Borrower's receipt of written demand, such amount or amounts (based upon a
reasonable allocation thereof by Agent or such Lender to the financing
transactions contemplated by this Agreement and affected by this SECTION 2.4(g))
as may be necessary to compensate Agent or such Lender for any such additional
cost incurred or reduced amounts received. Agent or such Lender shall deliver
to Borrower and in the case of a delivery by Lender, such Lender shall also
deliver to Agent, a written statement of the claimed additional costs incurred
or reduced amounts received and the basis therefor as soon as reasonably
practicable after such Lender obtains knowledge thereof. If Agent or any Lender
subsequently recovers any amount of Lender Taxes previously paid by Borrower
pursuant to this SECTION 2.4(g), whether before or after termination of this
Agreement, then, upon receipt of good funds with respect to such recovery, Agent
or such Lender will refund such amount to Borrower if no Event of Default or
Unmatured Event of Default then exists or, if an Event of Default or Unmatured
Event of Default then exists, such amount will be credited to the Obligations in
the manner determined by Agent or such Lender.
(h) CERTAIN PROVISIONS REGARDING LIBOR ADVANCES.
(i) LIBOR LENDING UNLAWFUL. If any Lender shall determine
(which determination shall, upon notice thereof to Borrower and Agent, be
conclusive and binding on the parties hereto) that after the Closing Date
the introduction of or any change in or in the interpretation of any law
makes it unlawful, or any central bank or other Governmental Authority
asserts that it is unlawful, for such Lender to make or maintain any
Advance as a LIBOR Advance, (A) the obligations of such Lender to make or
maintain any Advances as LIBOR Advances shall, upon such determination,
forthwith be suspended until such Lender shall notify Agent that the
circumstances causing such suspension no longer exist (and such Lender
shall give notice if such circumstances no longer exist), and (B) if
required by such law or assertion, the existing LIBOR Advances of such
Lender shall automatically convert into Base Rate Advances.
(ii) DEPOSITS UNAVAILABLE. If Agent shall have determined in
good faith that adequate means do not exist for ascertaining the interest
rate applicable hereunder to LIBOR Advances, then, upon notice from Agent
to Borrower the obligations of all Lenders to make or maintain Advances
as LIBOR Advances shall forthwith be suspended until Agent shall notify
Borrower that the circumstances causing such suspension no longer exist.
Agent will give such notice when it determines, in good faith, that such
circumstances no longer exist; PROVIDED, HOWEVER, that neither Agent nor
any Lender shall have any liability to any Person with respect to any
delay in giving such notice.
(iii) FIXED RATE PRICE ADJUSTMENT. Borrower acknowledges that
prepayment or acceleration of a LIBOR Advance during an Interest Period
shall result in Lenders incurring additional costs, expenses and/or
liabilities and that it is extremely difficult and impractical to
ascertain the extent of such costs, expenses and/or liabilities. (For
all purposes of this subparagraph (iii), any Advance not being made as a
LIBOR Advance
in accordance with the Notice of Borrowing therefor, as a result of
Borrower's cancellation thereof, shall be treated as if such LIBOR
Advance had been prepaid.) Therefore, on the date a LIBOR Advance is
prepaid or the date all sums payable hereunder become due and payable, by
acceleration or otherwise ("Price Adjustment Date"), Borrower shall pay
to Agent, for the account of each Lender, in addition to all other sums
then owing, an amount ("Fixed Rate Price Adjustment") equal to the then
present value of (A) the amount of interest that would have accrued on
the LIBOR Advance for the remainder of the Interest Period at the rate
applicable to such LIBOR Advance, less (B) the amount of interest that
would accrue on the same LIBOR Advance for the same period if the LIBOR
Rate were set on the Price Adjustment Date. The present value shall be
calculated by using as a discount rate the LIBOR Rate quoted on the Price
Adjustment Date.
By initialing this provision where indicated Borrower waives any
right Borrower may have under California Civil Code Section 2954.10
to repay any LIBOR Advances, in whole or in part, without payment of
the Fixed Rate Price Adjustment upon acceleration of the maturity
date of such Advances, and Borrower further confirms that Lenders'
agreement to make LIBOR Advances at the interest rates and on the
other terms set forth herein constitutes adequate and valuable
consideration, given individual weight by Borrower, for this waiver
and agreement.
BORROWER'S INITIALS: _______________________
Within seven (7) days after Borrower's receipt of written notice from
Agent, Borrower shall immediately pay to Agent, for the account of
Lenders, the Fixed Rate Price Adjustment as calculated by Agent. Such
written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on the
parties hereto.
(iv) Borrower understands, agrees and acknowledges the
following: (A) no Lender has any obligation to purchase, sell and/or
match funds in connection with the use of the LIBOR Rate as a basis for
calculating the rate of interest on a LIBOR Rate Advance or a Fixed Rate
Price Adjustment; (B) the LIBOR Rate is used merely as a reference in
determining such rate and/or Fixed Rate Price Adjustment; and
(C) Borrower has accepted the LIBOR Rate as a reasonable and fair basis
for calculating such rate and a Fixed Rate Price Adjustment. Borrower
further agrees to pay the Fixed Rate Price Adjustment and Lender Taxes,
if any, whether or not a Lender elects to purchase, sell and/or match
funds.
(i) WITHHOLDING TAX EXEMPTION. At least five (5) Business Days
prior to the first day on which interest or fees are payable hereunder for the
account of any Lender, each Lender that is not incorporated under the laws of
the United States of America, or a state thereof, agrees that it will deliver to
Agent and Borrower two (2) duly completed copies of United States Internal
Revenue Service Form 1001 or Form 4224, certifying in either case that such
Lender is entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes. Each Lender which so
delivers a Form 1001 or Form 4224 further undertakes to deliver to Agent and
Borrower two (2) additional copies of such form (or any applicable successor
form) on or before the date that such form expires (currently, three (3)
successive calendar years for Form 1001 and one (1) calendar year for Form 4224)
or becomes obsolete or after the occurrence of any event requiring a change in
the most recent forms so delivered by it, and such amendments thereto or
extensions or renewals thereof as may be reasonably requested by Agent or
Borrower, in each case certifying that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any
United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender advises Agent
that it is not
capable of receiving payments without any deduction or withholding of
United States federal income taxes. If any Lender cannot deliver such form,
then Borrower may withhold from such payments such amounts as are required by
the Code.
2.5 FEES.
(a) COMMITMENT FEE. Borrower shall pay to Agent a commitment fee
in respect of the Commitment pursuant to a separate agreement between Agent and
Borrower.
(b) UNUSED FACILITY FEE. From and after the Closing Date and until
the Obligations are paid in full and this Agreement is terminated or, if sooner,
the date the Commitment terminates, and subject to SECTION 10.4(b), Borrower
shall pay to Agent, for the account of each Lender, a fee (the "Unused Facility
Fee") accruing at the "Unused Facility Fee Rate" (as that term is hereinafter
defined) upon an amount equal to (i) $300,000,000 less all reductions in the
Commitment pursuant to SECTION 2.7 or SECTION 2.8 MINUS (ii) the average daily
principal balance of all outstanding Advances as determined for each Fiscal
Quarter.
The Unused Facility Fee Rate shall be computed as follows:
(1) For any Fiscal Quarter in which the average daily principal
balance of all outstanding Advances is less than or equal to
$150,000,000, the Unused Facility Fee Rate shall be one-quarter
of one percent (0.25%) per annum;
(2) For any Fiscal Quarter in which the average daily principal
balance of all outstanding Advances is greater than
$150,000,000, the Unused Facility Fee Rate shall be one-eighth
of one percent (0.125%) per annum.
The Unused Facility Fee shall be payable, in the manner provided in
Section 2.5(d), in arrears on the first Business Day in each Fiscal Quarter,
beginning with the first Fiscal Quarter after the Closing Date, and shall be
payable on the
Maturity Date or, if sooner, the date the Commitment terminates or on the date
of payment in full of all Obligations. The Unused Facility Fee shall be
prorated for any period of less than a full Fiscal Quarter.
(c) AGENCY FEES. Borrower shall pay Agent such fees as are
provided for in the agency fee agreement between Agent and Borrower, as in
existence from time to time.
(d) PAYMENT OF FEES. The fees described in this SECTION 2.5
represent compensation for services rendered and to be rendered separate and
apart from the lending of money or the provision of credit and do not constitute
compensation for the use, detention or forbearance of money, and the obligation
of Borrower to pay the fees described herein shall be in addition to, and not in
lieu of, the obligation of Borrower to pay interest, other fees and expenses
otherwise described in this Agreement. All fees shall be payable when due in
immediately available funds and shall be nonrefundable when paid. If Borrower
fails to make any payment of fees or expenses specified or referred to in this
Agreement due to Agent or Lenders, including without limitation those referred
to in this SECTION 2.5, in SECTION 11.1, or otherwise under this Agreement or
any separate fee agreement between Borrower and Agent or any Lender relating to
this Agreement, when due, the amount due shall bear interest until paid at the
Base Rate and after ten (10) days at the rate specified in SECTION 2.4(d) (but
not to exceed the maximum rate permitted by applicable law), and shall
constitute part of the Obligations. The Unused Facility Fee shall be calculated
on the basis of a 360-day year and the actual number of days elapsed.
2.6 PAYMENTS.
(a) VOLUNTARY PREPAYMENTS. Borrower may, upon not less than three
(3) Business Days prior written notice to Agent not later than 11:00 A.M. (San
Francisco time) on the date given, at any time and from time to time, prepay any
Advances in whole or in part. Any notice of prepayment given to Agent under
this SECTION 2.6(a) shall specify the date of prepayment and the aggregate
principal amount of the prepayment. In the event of a prepayment of LIBOR
Advances,
Borrower shall pay any Fixed Rate Price Adjustment payable in respect thereof in
accordance with SECTION 2.4(h). Agent shall provide to each Lender a confirming
copy of such notice on the same Business Day such notice is received.
(b) MANNER AND TIME OF PAYMENT. All payments of principal,
interest and fees hereunder payable to Agent or the Lenders shall be made
without condition or reservation of right and free of set-off or counterclaim,
in Dollars and by wire transfer (pursuant to Agent's written wire transfer
instructions) of immediately available funds, to Agent, for the account of each
Lender entitled thereto not later than 11:00 A.M. (San Francisco time) on the
date due; and funds received by Agent after that time and date shall be deemed
to have been paid on the next succeeding Business Day.
(c) PAYMENTS ON NON-BUSINESS DAYS. Whenever any payment to be made
by Borrower hereunder shall be stated to be due on a day which is not a Business
Day, such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder and of any of the fees specified in SECTION 2.5, as the case
may be.
2.7 NOTICE OF INCREASED COSTS. Each Lender agrees that, as promptly as
reasonably practicable after it becomes aware of the occurrence of an event or
the existence of a condition which would cause it to be affected by any of the
events or conditions described in SECTION 2.4(g) or (h), it will notify
Borrower, and provide a copy of such notice to Agent, of such event and the
possible effects thereof, PROVIDED that the failure to provide such notice shall
not affect such Lender's rights to reimbursement provided for herein. Provided
no Event of Default or Unmatured Event of Default has occurred and is
continuing, Borrower shall have the right (the "Payoff Right") to pay to such
Lender all principal, accrued and unpaid interest and any other amounts
(collectively, the "Payoff Amount") due such Lender under this Agreement and the
other Loan Documents (including amounts due such Lender under SECTION 2.4(g)).
Borrower may exercise the Payoff Right ONLY by delivering written notice of
Borrower's exercise of such Payoff Right to such Lender, the Agent and the other
Lenders
within 15 days after Borrower's receipt of written notice from such Lender that
Borrower owes amounts under SECTION 2.4(g) and thereafter paying, in immediately
available funds, the Payoff Amount to such Lender within such 15-day period.
Upon such Lender's receipt of the Payoff Amount, such Lender's Pro Rata Share of
the Commitment shall be terminated, the Commitment shall be reduced by an amount
equal to such Lender's Pro Rata Share of the Commitment and the Pro Rata Shares
of the Commitment of the remaining Lenders shall be adjusted and the Agent shall
give written notice to each of the Lenders of the adjusted Pro Rata Shares.
2.8 VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENT. At any time prior
to the Maturity Date, Borrower may, upon not less than 5 Business Days' prior
written notice to the Agent, terminate the Commitment in effect or permanently
reduce the Commitment in effect by an aggregate minimum amount of Twenty-
Five Million Dollars ($25,000,000) or any multiple of Five Million Dollars
($5,000,000) in excess thereof; PROVIDED, HOWEVER, that no such termination or
reduction shall be permitted if, after giving effect thereto and to any
prepayment of Advances made on the effective date of such termination or
reduction, as the case may be, the then outstanding principal amount of the
Advances would exceed the Commitment in effect; PROVIDED FURTHER, HOWEVER, that
once terminated or reduced in accordance with this SECTION 2.8, the Commitment
in effect may not thereafter be reinstated or increased; and PROVIDED FURTHER,
HOWEVER, that although the Commitment in effect may be terminated entirely
pursuant to this SECTION 2.8, the Commitment in effect shall not be reduced
below One Hundred Million Dollars ($100,000,000). All accrued and unpaid fees
due under SECTION 2.5 with respect to the portion of the Commitment in effect
being terminated or reduced shall be paid to the Agent on the funding date of
such termination or reduction.
ARTICLE 3
CONDITIONS TO ADVANCES
3.1 CONDITIONS TO INITIAL ADVANCES. The obligation of Lenders to make
the initial Advances shall be subject to the satisfaction or waiver by Requisite
Lenders of each of the following conditions precedent on or before June 11,
1997:
(a) BORROWER LOAN DOCUMENTS. Borrower shall have executed and
delivered to Agent each of the following, in form and substance acceptable to
Agent and each other Lender:
(i) this Agreement;
(ii) the Notes; and
(iii) all other documents which Agent reasonably requires to
be executed by or on behalf of Borrower.
(b) REIT LOAN DOCUMENTS. The REIT shall have executed and
delivered to Agent each of the following, in form and substance acceptable to
Agent and each other Lender:
(i) the Guaranty; and
(ii) all other documents which Agent reasonably requires to be
executed by or on behalf of the REIT.
(c) CORPORATE AND PARTNERSHIP DOCUMENTS. Agent shall have received
the corporate and partnership formation and other governing documents of the
Borrower and the REIT, and a certificate of each such entity's Secretary or an
officer comparable thereto with respect to authorization, incumbency and all
organizational documents.
(d) SOLVENCY. Each of the REIT and Borrower shall be Solvent and
shall have delivered to Agent a Solvency Certificate to that effect.
(e) FEES AND EXPENSES. Agent shall have received all fees then
due to Agent and to Lenders and shall have received reimbursement for all costs
and expenses for which Borrower is obligated pursuant to Section 11.1 and for
which Borrower has received an invoice, and Borrower shall have performed all of
its other obligations as set forth in the Loan Documents to make payments to
Agent on or before the Closing Date and all expenses of Agent incurred prior to
such Closing Date and for which Borrower has received an invoice shall have been
paid by Borrower.
(f) OPINION OF COUNSEL. Agent shall have received, on behalf of
Agent and Lenders, favorable opinions of counsel for Borrower and the REIT dated
as of the Closing Date, in form and substance reasonably satisfactory to Agent,
Lenders and their respective counsel.
(g) CONSENTS AND APPROVALS. All material licenses, permits,
consents, regulatory approvals and corporate action necessary to enter into the
financing transactions contemplated by this Agreement shall have been obtained
by Borrower and the REIT.
(h) The applicable Lenders shall have made the Adjusting Purchase
Payments as specified in SECTION 2.1(e).
3.2 CONDITIONS PRECEDENT TO ALL ADVANCES. The obligation of each Lender
to make any Advance (including the initial Advance) requested to be made by it,
on any date, is subject to the satisfaction or waiver by Requisite Lenders of
the following conditions precedent as of such date:
(a) NOTICE OF BORROWING. With respect to a request for an Advance,
Agent shall have received, on or before the Funding Date and in accordance with
the provisions of SECTION 2.1(b), an original and duly executed Notice of
Borrowing.
(b) ADDITIONAL MATTERS. As of the Funding Date for any Advance and
after giving effect to the Advance being requested:
(i) NO DEFAULT. After giving effect to the requested Advance,
no Event of Default or Unmatured Event of Default shall have occurred and
be continuing or would result from the making of the requested Advance
(it being intended that Lenders shall have no obligation to fund any
Advance during the period allowed under this Agreement for cure of any
event or condition which, if not cured during such period, would become
an Event of Default), and all of the covenants contained in SECTIONS 7.3
and 7.4, and ARTICLE 8 shall be satisfied;
(ii) REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties contained in this Agreement and in any
other Loan Document (other than those representations and warranties
which expressly provide that they speak as of a certain date (E.G., "as
of the Closing Date")) shall be true and correct in all material respects
on and as of such Funding Date, as though made on and as of such date,
and Borrower shall so certify;
(iii) NO MATERIAL ADVERSE CHANGE (BORROWER AND REIT). No
change shall have occurred which shall have a Material Adverse Effect on
Borrower or the REIT, as determined by Agent;
(iv) MATERIAL ADVERSE CHANGE (UNENCUMBERED ASSET). If a
change shall have occurred which shall have a Material Adverse Effect on
any Unencumbered Asset or the operating performance thereof, as
determined by Agent, the Unencumbered Asset Value of such Unencumbered
Asset shall not be included in the aggregate Unencumbered Asset Value of
the Unencumbered Pool for purposes of SECTION 2.1(a)(i)(y); and
(v) LITIGATION PROCEEDINGS. There shall not have been
instituted or threatened, any litigation or proceeding in any court or
before any Governmental Authority affecting or threatening to affect
Borrower or the REIT which, if adversely determined, would have a
Material Adverse Effect on Borrower or the REIT, as reasonably determined
by Agent.
(vi) COMPLIANCE WITH SECTION 8.5. Borrower shall be in
compliance with SECTION 8.5 after such Advance is made.
Each submission by Borrower to Agent of a Notice of Borrowing with respect to an
Advance and the acceptance by Borrower of the proceeds of each such Advance made
hereunder shall constitute a representation and warranty by Borrower as of the
Funding Date in respect of such Advance that all the conditions contained in
this SECTION 3.2 have been satisfied.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES AS TO BORROWER, ETC. In order to
induce Lenders to make the Advances, Borrower hereby represents and warrants to
Agent and Lenders as follows:
(a) ORGANIZATION; PARTNERSHIP POWERS. Borrower (i) is a limited
partnership duly organized, validly existing and in good standing under the laws
of Maryland, (ii) is duly qualified to do business as a foreign limited
partnership and in good standing under the laws of California and each other
jurisdiction in which it owns or leases real property or in which the nature of
its business requires it to be so qualified, except for those jurisdictions
where failure to so qualify and be in good standing would not have a Material
Adverse Effect on Borrower, and (iii) has all requisite partnership power and
authority to own, operate and encumber its Property and assets and to conduct
its business as presently conducted and as proposed to be conducted in
connection with and following the consummation of the transactions contemplated
by the Loan Documents.
(b) AUTHORITY. Borrower has the requisite partnership power and
authority to execute, deliver and perform each of the Loan Documents to which it
is or will be a party. The execution, delivery and performance thereof, and the
consummation of the transactions contemplated thereby, have been duly authorized
by all necessary actions. Each of the
Loan Documents to which Borrower is a party has been duly and validly executed
and delivered by Borrower and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency and other laws affecting creditors' rights generally and
general equitable principles.
(c) OWNERSHIP OF BORROWER. All of the Partnership Units of the
Borrower are validly issued and non-assessable and as of the Closing Date are
owned of record in the percentage amounts and by the Persons set forth on
SCHEDULE 4.1(c), as amended from time to time. As of the Closing Date, the REIT
owns 21,692,833 Partnership Units of the Borrower, free and clear of any Liens.
Such Partnership Units were offered and sold in compliance in all material
respects with all Requirements of Law (including, without limitation, federal
and state securities laws). Except as set forth in SCHEDULE 4.1(c), there are
no outstanding securities convertible into or exchangeable for Partnership Units
of the Borrower, or options, warrants or rights to purchase any such Partnership
Units, or commitments of any kind for the issuance of additional Partnership
Units or any such convertible or exchangeable securities or options, warrants or
rights to purchase such Partnership Units. The REIT is the sole general partner
of the Borrower.
(d) NO CONFLICT. The execution, delivery and performance by
Borrower of the Loan Documents to which it is or will be a party, and each of
the transactions contemplated thereby, do not and will not (i) conflict with or
violate Borrower's limited partnership agreement or certificate of limited
partnership or other organizational documents, as the case may be, or
(ii) conflict with, result in a breach of or constitute (with or without notice
or lapse of time or both) a default under any Requirement of Law, Contractual
Obligation or Court Order of or binding upon Borrower, which would have a
Material Adverse Effect on Borrower or (iii) require termination of any
Contractual Obligation, which termination would have a Material Adverse Effect
on Borrower or (iv) result in or require the creation or imposition of any Lien
whatsoever upon any of the Properties or assets of Borrower (other than
Permitted Liens).
(e) CONSENTS AND AUTHORIZATIONS. Borrower has obtained all
consents and authorizations required pursuant to its Contractual Obligations
with any other Person, and shall have obtained all consents and authorizations
of, and effected all notices to and filings with, any Governmental Authority, as
may be necessary to allow Borrower to lawfully execute, deliver and perform its
obligations under the Loan Documents to which Borrower is a party, except to the
extent that failure to obtain any such consent or authorization or to effect
such notice or filing would not have a Material Adverse Effect on Borrower.
(f) GOVERNMENTAL REGULATION. Neither Borrower nor the REIT is
subject to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, the Investment Company Act of
1940 or any other federal or state statute or regulation such that its ability
to incur indebtedness is limited or its ability to consummate the transactions
contemplated by the Loan Documents is materially impaired.
(g) FINANCIAL STATEMENTS; PROJECTIONS AND FORECASTS. Each of the
financial statements to be delivered to Agent pursuant to SECTIONS 5.1(b) and
(c) (i) has been, or will be, as applicable, prepared in accordance with the
books and records of the REIT and the Consolidated Entities on a consolidated
basis, and (ii) either fairly present in all material respects, or will fairly
present in all material respects, as applicable, the financial condition of the
REIT and the Consolidated Entities on a consolidated basis, at the dates thereof
(and, if applicable, subject to normal year-end adjustments) and the results of
its operations and cash flows, on a consolidated basis, for the period then
ended. Each of the projections delivered to Agent prior to the date hereof and
each of the projected consolidated cash flows to be delivered to Agent pursuant
to SECTION 5.1(e), (A) has been, or will be, as applicable, prepared by the REIT
in light of the past business and performance of the REIT or its predecessors in
interest on a consolidated basis and (B) represent, or will represent, as of the
date thereof, the reasonable good faith estimates of the REIT's financial
personnel as of their respective dates.
(h) PRIOR OPERATING STATEMENTS. Each of the operating statements
pertaining to each of the Unencumbered Assets in the Unencumbered Pool prepared
by Borrower and delivered to Agent prior to the date hereof was prepared in
accordance with GAAP in effect on the date such operating statement of each such
Unencumbered Asset was prepared and fairly presents the results of operations of
such Unencumbered Asset for the period then ended; provided, however, that no
representation is made with respect to any period prior to the ownership of such
Unencumbered Asset by Borrower or a Predecessor Entity.
(i) UNENCUMBERED POOL STATEMENTS AND PROJECTIONS. Each of the
Unencumbered Pool Statements to be delivered to Agent pursuant to SECTION 5.1(f)
(i) has been or will be, as applicable, prepared in accordance with the books
and records of the applicable Unencumbered Asset and (ii) fairly presents or
will fairly present in all material respects, as applicable, the results of
operations of such Unencumbered Asset for the period then ended; provided,
however, that no representation is made with respect to any period prior to the
ownership of such Unencumbered Asset by Borrower or a Predecessor Entity.
(j) LITIGATION; ADVERSE EFFECTS.
(i) Except as otherwise disclosed on SCHEDULE 4.1(j), there
is no action, suit, proceeding, governmental investigation or
arbitration, at law or in equity, or before or by any Governmental
Authority, pending or, to the best of Borrower's knowledge, threatened
against Borrower or any Property of Borrower which, if adversely
determined, would result in a Material Adverse Effect on Borrower.
(ii) Borrower is not (A) in violation of any applicable law,
which violation has a Material Adverse Effect on Borrower, or (B) subject
to or in default with respect to any Court Order which has a Material
Adverse Effect on Borrower. There are no material Proceedings pending
or, to the best of Borrower's knowledge, threatened against Borrower or
any Unencumbered Asset
which, if adversely decided, would have a Material Adverse Effect on
Borrower.
(k) NO MATERIAL ADVERSE CHANGE. Since the "Closing Date" (as
defined in the Original Credit Agreement) (i) there has occurred no event which
has a Material Adverse Effect on Borrower, and (ii) no material adverse change
in Borrower's ability to perform its obligations under the Loan Documents to
which it is a party or the transactions contemplated thereby has occurred.
(l) PAYMENT OF TAXES. All tax returns and reports to be filed by
Borrower have been timely filed, and all taxes, assessments, fees and other
governmental charges shown on such returns or otherwise payable by Borrower have
been paid when due and payable (other than real property taxes, which may be
paid prior to delinquency so long as no penalty or interest shall attach
thereto), except such taxes, if any, as are reserved against in accordance with
GAAP and are being contested in good faith by appropriate proceedings or such
taxes, the failure to make payment of which when due and payable will not have,
in the aggregate, a Material Adverse Effect on Borrower. Borrower has no
knowledge of any proposed tax assessment against Borrower that will have a
Material Adverse Effect on Borrower, which is not being actively contested in
good faith by Borrower.
(m) MATERIAL ADVERSE AGREEMENTS. Borrower is not a party to or
subject to any Contractual Obligation or other restriction contained in its
limited partnership agreement, certificate of limited partnership or similar
governing documents which has a Material Adverse Effect on Borrower.
(n) PERFORMANCE. Borrower is not in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any Contractual Obligation applicable to it, and no condition
exists which, with the giving of notice or the lapse of time or both, would
constitute a default under such Contractual Obligation, except where the
consequences, direct or indirect, of such default or defaults, if any, will not
have a Material Adverse Effect on Borrower.
(o) FEDERAL RESERVE REGULATIONS. No part of the proceeds of the
Advances hereunder will be used to purchase or carry any "margin security" as
defined in Regulation G or for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any margin
security or for any other purpose which might constitute this transaction a
"purpose credit" within the meaning of said Regulation G. Neither Borrower nor
the REIT is engaged primarily in the business of extending credit for the
purpose of purchasing or carrying out any "margin stock" as defined in
Regulation U. No part of the proceeds of the Advances hereunder will be used
for any purpose that violates, or which is inconsistent with, the provisions of
Regulation X or any other regulation of the Federal Reserve Board.
(p) DISCLOSURE. The representations and warranties of Borrower
contained in the Loan Documents and all certificates, financial statements and
other documents delivered to Agent in connection therewith, do not contain any
untrue statement of a material fact or omit to state a material fact necessary,
in order to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading; provided no
representation is made as to any information in the financial reports for any
Real Property prior to its ownership by Borrower or any Predecessor Entity. The
factual information in any document, certificate or written statement
(including, without limitation, the S-11) furnished to the Agent by or on behalf
of the REIT or any other Consolidated Entity with respect to the business,
assets, prospects, results of operations or financial condition of the REIT, the
Borrower or any other Consolidated Entity, including operating statements and
Rent Rolls for periods when the Real Property covered by such statements or Rent
Rolls is owned by Borrower, for use in connection with the transactions
contemplated by this Agreement, was true and correct in all material respects as
of the applicable date. There is no fact known to the REIT, Borrower or any
Consolidated Entity that has a Material Adverse Effect on Borrower, the REIT
and/or any such Consolidated Entity or could reasonably be expected to have a
Material Adverse Effect on Borrower, the REIT and/or any such Consolidated
Entity, which has not been disclosed herein or in such other documents,
certificates and statements. Borrower
has given to Agent true, correct and complete copies of all Major Agreements,
organizational documents, financial statements of the REIT and the Consolidated
Entities, Unencumbered Pool Statements and all other documents and instruments
referred to in the Loan Documents as having been delivered to Agent. Borrower
has not intentionally withheld any material fact from Agent in regard to any
matter raised in the Loan Documents which would cause its representations and
warranties to be misleading. Notwithstanding the foregoing, with respect to
projections of Borrower's future performance such representations and warranties
are made in good faith and to the best judgment of Borrower as of the date
thereof.
(q) REQUIREMENTS OF LAW. The REIT and the Consolidated Entities
are in compliance with all Requirements of Law (including without limitation the
Securities Act and the Securities Exchange Act, and the applicable rules and
regulations thereunder, state securities law and "Blue Sky" laws) applicable to
it and its respective businesses, in each case, where the failure to so comply
will have a Material Adverse Effect on any such Person. The REIT has made all
filings with and obtained all consents of the Commission required under the
Securities Act and the Securities Exchange Act in connection with the execution,
delivery and performance by the REIT of the Loan Documents.
(r) PATENTS, TRADEMARKS, PERMITS, ETC. The REIT and the
Consolidated Entities own, are licensed or otherwise have the lawful right to
use, or have, all permits and other governmental approvals, patents, trademarks,
trade names, copyrights, technology, know-how and processes used in or necessary
for the conduct of each such Person's business as currently conducted, the
absence of which would have a Material Adverse Effect upon such Person. The use
of such permits and other governmental approvals, patents, trademarks, trade
names, copyrights, technology, know-how and processes by each such Person does
not infringe on the rights of any Person, subject to such claims and
infringements as do not, in the aggregate, give rise to any liability on the
part of any such Person which would have a Material Adverse Effect on any such
Person.
(s) ENVIRONMENTAL MATTERS. Except as set forth on SCHEDULE 4.1(s)
or in any phase I environmental or other reports delivered to Agent, to the best
knowledge of Borrower (i) the operations of the REIT and Borrower comply in all
material respects with all applicable, local, state and federal environmental,
health-and safety Requirements of Law ("Environmental Laws"); (ii) none of the
Unencumbered Assets or operations thereon are subject to any Remedial Action or
other Liabilities and Costs arising from the Release or threatened Release of a
Contaminant into the environment in violation of any Environmental Laws, which
Remedial Action or other Liabilities and Costs would have a Material Adverse
Effect on Borrower and/or the REIT; (iii) neither the REIT nor the Borrower has
filed any notice under applicable Environmental Laws reporting a Release of a
Contaminant into the environment in violation of any Environmental Laws, except
as the same may have been heretofore remedied; (iv) there is not now on or in
any Unencumbered Assets (except in compliance in all material respects with all
applicable Environmental Laws): (A) any underground storage tanks, (B) any
asbestos-containing material, or (C) any polychlorinated biphenyls (PCB's) used
in hydraulic oils, electrical transformers or other equipment owned by such
Person; and (v) neither the REIT nor Borrower has received any notice or claim
to the effect that it is or may be liable to any Person as a result of the
Release or threatened Release of a Contaminant into the environment which would
have a Material Adverse Effect on the REIT or any of the Consolidated Entities.
(t) SOLVENCY. Borrower is and will be Solvent after giving effect
to the disbursements of the Advances and the payment and accrual of all fees
then payable.
(u) TITLE TO ASSETS. Borrower has good, indefeasible and
merchantable title to all Properties, including, without limitation, all
Unencumbered Assets, owned or leased by it.
(v) MANAGEMENT AGREEMENTS. Except as disclosed on SCHEDULE 4.1(v)
(as amended from time to time), Borrower is not a party or subject to any
management or "ground" leasing
agreement with respect to any of the Properties included within the Unencumbered
Pool.
4.2 REPRESENTATIONS AND WARRANTIES AS TO THE REIT. In order to induce
Lenders to make the Advances, Borrower hereby represents and warrants to the
Agent and Lenders as follows:
(a) ORGANIZATION; CORPORATE POWERS. The REIT (i) is a corporation
duly organized, validly existing and in good standing under the laws of
Maryland, (ii) is duly qualified to do business as a foreign corporation and in
good standing under the laws of each jurisdiction in which it owns or leases
real property or in which the nature of its business requires it to be so
qualified, except for those jurisdictions where failure to so qualify and be in
good standing will not have a Material Adverse Effect on the REIT, and (iii) has
all requisite corporate power and authority to own, operate and encumber its
property and assets and to conduct its business as presently conducted and as
proposed to be conducted in connection with and following the consummation of
the transactions contemplated by the Loan Documents.
(b) AUTHORITY. The REIT has the requisite corporate power and
authority to execute, deliver and perform each of the Loan Documents to which it
is or will be a party. The execution, delivery and performance thereof, and the
consummation of the transactions contemplated thereby, have been duly authorized
by the Board of Directors of the REIT, and no other corporate proceedings on the
part of the REIT are necessary to consummate such transactions. Each of the
Loan Documents to which the REIT is a party has been duly executed and delivered
by the REIT and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms, subject to bankruptcy, insolvency and
other laws affecting creditors' rights generally and general equitable
principles.
(c) NO CONFLICT. The execution, delivery and performance by the
REIT of the Loan Documents to which it is party, and each of the transactions
contemplated thereby, do not and will not (i) conflict with or violate its
articles of incorporation, by-laws or other organizational documents,
(ii) conflict with, result in a breach of or constitute (with or without notice
or lapse of time or both) a default under any Requirement of Law, Contractual
Obligation or Court Order of or binding upon the REIT, which would have a
Material Adverse Effect on the REIT, (iii) require termination of any
Contractual Obligation, which termination would have a Material Adverse Effect
on the REIT, (iv) result in or require the creation or imposition of any Lien
whatsoever upon any of the Properties or assets of the REIT, or (v) require any
approval of the stockholders of the REIT.
(d) CONSENTS AND AUTHORIZATIONS. The REIT has obtained all
consents and authorizations required pursuant to its Contractual Obligations
with any other Person, and, prior to the Closing Date, shall have obtained all
consents and authorizations of, and effected all notices to and filings with,
any Governmental Authority, as may be necessary to allow the REIT to lawfully
execute, deliver and perform its obligations under the Loan Documents to which
the REIT is a party.
(e) CAPITALIZATION. All of the capital stock of the REIT has been
issued in compliance in all material respects with all applicable Requirements
of Law.
(f) LITIGATION; ADVERSE EFFECTS.
(i) There is no action, suit, proceeding, governmental
investigation or arbitration, at law or in equity, by or before any
Governmental Authority, pending or, to best of Borrower's knowledge,
threatened against the REIT or any Property of the REIT, which will
(A) result in a Material Adverse Effect on the REIT, (B) materially and
adversely affect the ability of any party to any of the Loan Documents to
perform its obligations thereunder, or (C) materially and adversely
affect the ability of the REIT to perform its obligations as contemplated
in the Loan Documents.
(ii) The REIT is not (A) in violation of any applicable law,
which violation has a Material Adverse Effect on the REIT, or (B) subject
to or in default with
respect to any Court Order which has a Material Adverse Effect on the
REIT. There are no Proceedings pending or, to the best of Borrower's
knowledge, threatened against the REIT, which, if adversely decided,
would have a Material Adverse Effect on the REIT or Borrower.
(g) NO MATERIAL ADVERSE CHANGE. Since the "Closing Date" (as
defined in the Original Credit Agreement), (i) there has occurred no event which
has a Material Adverse Effect on the REIT, and (ii) no material adverse change
has occurred in the REIT's ability to perform its obligations under the Loan
Documents to which it is a party or the transactions contemplated thereby.
(h) PAYMENT OF TAXES. All tax returns and reports to be filed by
the REIT have been timely filed, and all taxes, assessments, fees and other
governmental charges shown on such returns have been paid when due and payable,
except such taxes, if any, as are reserved against in accordance with GAAP and
are being contested in good faith by appropriate proceedings or such taxes, the
failure to make payment of which when due and payable would not have, in the
aggregate, a Material Adverse Effect on the REIT. The REIT has no knowledge of
any proposed tax assessment against the REIT that would have a Material Adverse
Effect on the REIT, which is not being actively contested in good faith by the
REIT.
(i) MATERIAL ADVERSE AGREEMENTS. The REIT is not a party to or
subject to any Contractual Obligation or other restriction contained in its
charter, by-laws or similar governing documents which has a Material Adverse
Effect on the REIT or the ability of the REIT to perform its obligations under
the Loan Documents to which it is a party.
(j) PERFORMANCE. The REIT is not in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any Contractual Obligation applicable to it, and no condition
exists which, with the giving of notice or the lapse of time or both, would
constitute a default under such Contractual Obligation, except where the
consequences, direct or indirect, of such default or
defaults, if any, would not have a Material Adverse Effect on the REIT.
(k) DISCLOSURE. The representations and warranties of the REIT
contained in the Loan Documents, and all certificates, financial statements and
other documents delivered to Agent in connection therewith, do not contain any
untrue statement of a material fact or omit to state a material fact necessary,
in order to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading. The REIT has not
intentionally withheld any material fact from Agent in regard to any matter
raised in the Loan Documents which would cause its representations and
warranties to be misleading. Notwithstanding the foregoing, with respect to
projections of the REIT's future performance such representations and warranties
are made in good faith and to the best judgment of the management of the REIT as
of the date thereof.
(l) ERISA. Neither the REIT nor any ERISA Affiliate thereof
(including, for all purposes under this SECTION 4.2(1), Borrower and the other
Consolidated Entities) has in the past five (5) years maintained or contributed
to or currently maintains or contributes to any Benefit Plan other than the
Benefit Plans identified on SCHEDULE 4.2(1) (as such Schedule may be amended
from time to time). Neither the REIT nor any ERISA Affiliate thereof has during
the past five (5) years maintained or contributed to or currently maintains or
contributes to any employee welfare benefit plan within the meaning of
Section 3(1) of ERISA which provides benefits to retirees other than benefits
required to be provided under Section 4980B of the Code and Sections 601 through
608 of ERISA (or any successor provisions thereto) or applicable state law.
Neither the REIT nor any ERISA Affiliate thereof is now contributing nor has it
ever contributed to or been obligated to contribute to any Multiemployer Plan,
no employees or former employees of the REIT, or such ERISA Affiliate, have been
covered by any Multiemployer Plan in respect of their employment by the REIT,
and no ERISA Affiliate of the REIT has or is likely to incur any withdrawal
liability with respect to any Multiemployer Plan which would have a Material
Adverse Effect on the REIT.
(m) SOLVENCY. The REIT is and will be Solvent after giving effect
to the disbursements of the Advances and the payment and accrual of all fees
then payable.
(n) STATUS AS A REIT. The REIT (i) shall for its first taxable
year elect to qualify (but has not so elected as of the Closing Date), and for
each subsequent taxable year shall maintain its classification, as a real estate
investment trust as defined in Section 856 of the Code, (ii) has not engaged in
any "prohibited transactions" as defined in Section 856(b)(6)(iii) of the Code,
(iii) for its current "tax year" (as defined in the Code) is, and for all
taxable years subsequent to its election to be a real estate investment trust
shall remain, entitled to a dividends paid deduction which meets the
requirements of Section 857 of the Code and (iv) its ownership and method of
operation enable it to meet the requirements for taxation as a real estate
investment trust under the Code.
(o) OWNERSHIP. As of the Closing Date, the REIT does not own or
have any direct interest in any other Person, other than its ownership of the
general partnership interests in Borrower and its ownership of all of the
ownership interests in Arden Realty Finance, Inc.
(p) NYSE LISTING. The common stock of the REIT is, and is
reasonably expected to be, listed for trading and traded on the New York Stock
Exchange.
ARTICLE 5
REPORTING COVENANTS
Borrower covenants and agrees that, on and after the date hereof,
until payment in full of all of the Obligations, the expiration of the
Commitment and termination of this Agreement:
5.1 FINANCIAL STATEMENTS AND OTHER FINANCIAL AND OPERATING INFORMATION.
Borrower shall maintain or cause to be maintained a system of accounting
established and administered
in accordance with sound business practices and consistent with past practice to
permit preparation of quarterly and annual financial statements in conformity
with GAAP, and each of the financial statements described below shall be
prepared on a consolidated basis for the REIT and the other Consolidated
Entities from such system and records. Borrower shall deliver or cause to be
delivered to Agent (with copies of bound materials sufficient for each Lender):
(a) COMMISSION FILINGS. Promptly following their filing with the
Commission, copies of all required reports and filings filed with the
Commission, including, without limitation, the Annual Report on Form 10-K, the
Quarterly Reports on Form 10-Q, registration statements, proxy statements and
the annual reports delivered to the shareholders of the REIT and the
Consolidated Entities.
(b) ANNUAL FINANCIAL STATEMENTS. Within ninety (90) days after the
close of each Fiscal Year, consolidated balance sheets, statements of
operations, stockholders' equity and cash flows for the REIT and the
Consolidated Entities (in the form provided to the Commission on the REIT's
Form 10-K), audited and certified without qualification by the Accountants and
accompanied by a statement that, in the course of their audit (conducted in
accordance with generally accepted auditing standards), the Accountants obtained
no knowledge that an Event of Default or Unmatured Event of Default occurred.
To the extent Agent desires additional details or supporting information with
respect to Unconsolidated Joint Ventures or individual Real Properties which are
not Unencumbered Assets within the Unencumbered Pool and which details and
information are not contained in the REIT's Form 10-K, Borrower shall provide
Agent with such details or supporting information as Agent requests which is
reasonably available to Borrower. Without limiting the foregoing, at Agent's
request, within ninety (90) days after the end of each Fiscal Year, Borrower,
with respect to Real Property which is not included within the Unencumbered
Pool, shall provide to Agent operating statements and a schedule setting forth
the percentage of leasable area leased to tenants in occupancy, with footnotes
indicating which leases are in default in rent payments by more than forty-five
(45) days (other than technical, nonmaterial disputes
concerning percentage rentals due) and any other material provisions in respect
to which Borrower has issued a notice of default, for such Real Property.
(c) QUARTERLY FINANCIAL STATEMENTS CERTIFIED BY OFFICERS. As soon
as practicable, and in any event within forty-five (45) days after the end of
each Fiscal Quarter, consolidated balance sheets, statements of operations,
stockholders' equity and statements of cash flow for the REIT and the
Consolidated Entities, which may, in the case of the first three Fiscal
Quarters, be in the form provided to the Commission on the REIT's Form 10-Q, and
certified by the REIT's chief executive officer, chief operating officer, chief
financial officer or chief accounting officer.
(d) OFFICER'S CERTIFICATE OF BORROWER. (i) Together with each
delivery of any financial statement pursuant to subsection (c) above, an
Officer's Certificate of the REIT, stating that the executive officer who is the
signatory thereto (which officer shall be the chief executive officer, the chief
operating officer, the chief financial officer or the chief accounting officer
of the REIT) has reviewed, or caused under his or her supervision to be
reviewed, the terms of this Agreement and the other principal Loan Documents,
and has made, or caused to be made under his or her supervision, a review in
reasonable detail of the transactions and condition of the REIT and the
Consolidated Entities during the accounting period covered by such financial
statements of the REIT and the Consolidated Entities, and that such review has
not disclosed the existence at the end of such accounting period, and that the
signers do not have knowledge of the existence as of the date of the Officer's
Certificate, of any condition or event which constitutes an Event of Default or
Unmatured Event of Default, or, if any such condition or event exists,
specifying the nature and period of existence thereof and what action has been
taken, is being taken and is proposed to be taken with respect thereto; and
(ii) together with each delivery pursuant to subsection (c) above, a Compliance
Certificate demonstrating in reasonable detail (which detail shall include
actual calculations and such supporting information as Agent may reasonably
require) compliance at the end of such accounting
periods with the covenants contained in SECTIONS 7.3 and ARTICLE 8.
(e) CASH FLOW PROJECTIONS. As soon as practicable, and in any
event, within one hundred twenty (120) days after the end of each Fiscal Year,
projected consolidated cash flows for the REIT and the Consolidated Entities for
the following Fiscal Year. Borrower shall also provide such additional
supporting details as Agent may reasonably request.
(f) UNENCUMBERED POOL STATEMENTS AND OPERATING RESULTS. As soon as
practicable, and in any event within forty-five (45) days after the end of each
Fiscal Quarter, quarterly operating statements for each Unencumbered Asset in
the Unencumbered Pool, in a form approved by Agent, which operating statements
shall include actual quarterly and year-to-date operating income results, and
Rent Rolls for each Unencumbered Asset within the Unencumbered Pool dated as of
the last day of such Fiscal Quarter (the "QUARTERLY UNENCUMBERED POOL
STATEMENTS"), in form and substance satisfactory to Agent, certified as being
true and correct in all material respects by the REIT's chief financial officer,
chief accounting officer, chief executive officer or chief operating officer.
In addition, as soon as practicable, and in any event within forty-five
(45) days after the end of the fourth Fiscal Quarter, a year-end operating
statement, in form approved by Agent, which operating statement shall include
year-to-date net operating income and net cash flow results for each
Unencumbered Asset within the Unencumbered Pool dated as of the last day of such
Fiscal Quarter (collectively, with the Quarterly Unencumbered Pool Statements,
the "UNENCUMBERED POOL STATEMENTS"). Agent shall also have the right to request
the foregoing information with respect to any Real Property owned by the REIT or
any Consolidated Entity.
(g) BUDGETS FOR UNENCUMBERED POOL. Not later than fifteen (15)
days prior to the beginning of each Fiscal Year, annual operating budgets
(including, without limitation, overhead items and capital expenditures) for
each Unencumbered Asset in the Unencumbered Pool for such Fiscal Year, prepared
on an annual basis, in a form approved by Agent, together with all supporting
details reasonably requested by Agent, and
certified by the chief executive officer, chief operating officer, chief
financial officer or chief accounting officer of the REIT as being based upon
the REIT's reasonable good faith estimates, information and assumptions at the
time.
(h) KNOWLEDGE OF EVENT OF DEFAULT. Promptly upon a Responsible
Official of Borrower or the REIT obtaining knowledge (i) of any condition or
event which constitutes an Event of Default or Unmatured Event of Default, or
becoming aware that any Lender has given notice or taken any other action with
respect to a claimed Event of Default or Unmatured Event of Default or (ii) of
any condition or event which has a Material Adverse Effect on Borrower or the
REIT, an Officer's Certificate specifying the nature and period of existence of
any such condition or event, or specifying the notice given or action taken by
such Lender and the nature of such claimed Event of Default, Unmatured Event of
Default, event or condition, and what action Borrower and/or the REIT has taken,
is taking and proposes to take with respect thereto.
(i) LITIGATION, ARBITRATION OR GOVERNMENT INVESTIGATION. Promptly
upon a Responsible Official of Borrower or the REIT obtaining knowledge of
(i) the institution of, or threat of, any material action, suit, proceeding,
governmental investigation or arbitration against or affecting Borrower or the
REIT not previously disclosed in writing by Borrower to Agent pursuant to this
SECTION 5.1(i) or (ii) any material development in any action, suit, proceeding,
governmental investigation or arbitration already disclosed, which, in either
case, has, or if adversely determined is reasonably likely to have, a Material
Adverse Effect on Borrower or the REIT, a notice thereof to Agent and such other
information as may be reasonably available to it to enable Agent, Lenders and
their counsel to evaluate such matters.
(j) ERISA TERMINATION EVENT. As soon as possible, and in any event
within thirty (30) days after a Responsible Official of Borrower or the REIT
knows that a Termination Event has occurred, a written statement of the chief
financial officer of the REIT describing such Termination Event and the action,
if any, which Borrower, the REIT or any ERISA Affiliate of any of them has
taken, is taking or proposes to take, with
respect thereto, and, when known, any action taken or threatened by the IRS, the
DOL or the PBGC with respect thereto.
(k) PROHIBITED ERISA TRANSACTION. As soon as possible, and in
any event within thirty (30) days, after a Responsible Official of Borrower,
the REIT or any ERISA Affiliate of any of them knows that a prohibited
transaction (defined in Section 406 of ERISA and Section 4975 of the Code and
which is not subject to a statutory or prohibited transaction class
exemption) has occurred, a statement of the chief financial officer of the
REIT describing such transaction.
(l) BENEFIT PLAN ANNUAL REPORT. On request of Agent, within
thirty (30) days after the filing thereof with the DOL, the IRS or the PBGC,
copies of each annual report, including Schedule B thereto, filed with
respect to each Benefit Plan of Borrower, the REIT or any ERISA Affiliate of
any of them.
(m) BENEFIT PLAN FUNDING WAIVER REQUEST. Within thirty (30)
days after the filing thereof with the IRS, a copy of each funding waiver
request filed with respect to any Benefit Plan of Borrower, the REIT or any
ERISA Affiliate of any of them and all communications received by Borrower,
the REIT or any ERISA Affiliate of any of them with respect to such request.
(n) ESTABLISHMENT OF BENEFIT PLAN AND INCREASE IN CONTRIBUTIONS
TO THE BENEFIT PLAN. Not less than ten (10) days prior to the effective date
thereof, a notice to Agent of the establishment of a Benefit Plan (or the
incurrence of any obligation to contribute to a Multiemployer Plan) by
Borrower, the REIT or any ERISA Affiliate of any of them. Within thirty (30)
days after the first to occur of an amendment of any then existing Benefit
Plan of Borrower, the REIT or any ERISA Affiliate of any of them which will
result in an increase in the benefits under such Benefit Plan or a
notification of any such increase, or the establishment of any new Benefit
Plan by Borrower, the REIT or any ERISA Affiliate of any of them or the
commencement of contributions to any Benefit Plan to which
Borrower, the REIT or any ERISA Affiliate of any of them was not previously
contributing, a copy of said amendment, notification or Benefit Plan.
(o) QUALIFICATION OF ERISA PLAN. Promptly upon, and in any event
within thirty (30) days after, receipt by Borrower, the REIT or any ERISA
Affiliate of any of them of an unfavorable determination letter from the IRS
regarding the qualification of a Plan under Section 401(a) of the Internal
Revenue Code, a copy of said determination letter, if such disqualification
would have a Material Adverse Effect on Borrower or the REIT.
(p) MULTIEMPLOYER PLAN WITHDRAWAL LIABILITY. Promptly upon, and
in any event within thirty (30) days after receipt by Borrower, the REIT or
any ERISA Affiliate of any of them of a notice from a Multiemployer Plan
regarding the imposition of material withdrawal liability, a copy of said
notice.
(q) FAILURE TO MAKE SECTION 412 PAYMENT. Promptly upon, and in
any event within thirty (30) days after, Borrower, the REIT or any ERISA
Affiliate of any of them fails to make a required installment under
subsection (m) of Section 412 of the Internal Revenue Code or any other
payment required under Section 412 of the Internal Revenue Code on or before
the due date for such installment or payment, a notification of such failure,
if such failure could result in either the imposition of a Lien under said
Section 412 or otherwise have or could reasonably be anticipated to have a
Material Adverse Effect on Borrower or the REIT.
(r) FAILURE OF THE REIT TO QUALIFY AS REAL ESTATE INVESTMENT
TRUST. Promptly upon, and in any event within forty-eight (48) hours after a
Responsible Official of Borrower first has actual knowledge of (i) the REIT
failing to continue to qualify as a real estate investment trust as defined
in Section 856 of the Internal Revenue Code (or any successor provision
thereof), (ii) any act by the REIT causing its election to be taxed as a real
estate investment trust to be terminated, (iii) any act causing the REIT to
be subject to the taxes imposed by Section 857(b)(6) of the Internal Revenue
Code
(or any successor provision thereto), or (iv) the REIT failing to be entitled
to a dividends paid deduction which meets the requirements of Section 857 of
the Internal Revenue Code, a notice of any such occurrence or circumstance.
(s) ASSET ACQUISITIONS AND DISPOSITIONS, INDEBTEDNESS, MERGER,
ETC. Without limiting, modifying or waiving any restriction in the Loan
Documents, concurrently with notice to Borrower's priority mailing list and
in all events not later than any public disclosure, written notice of any
material investments (other than in Cash Equivalents), material acquisitions,
asset purchases, dispositions, disposals, divestitures or similar
transactions involving Property, the raising of additional equity or the
incurring or repayment of material Debt, or any material merger, by or with
Borrower or the REIT, and, if requested by Agent after the consummation of
such transaction, a Compliance Certificate within 7 days after the date of
such request, in form and substance reasonably acceptable to Agent,
demonstrating in reasonable detail (which detail shall include actual
calculations and such supporting information as Agent may reasonably require)
compliance, after giving effect to such proposed transaction(s), with the
covenants contained in SECTION 7.3 and ARTICLE 8. For purposes of this
SECTION 5.1(s), any investment, acquisition, asset purchase, disposition,
disposal, divestiture, merger or similar transaction shall be considered
"material" if it involves assets exceeding five percent (5%) of the
Borrower's assets (as existing prior to giving effect to such transaction) or
if it involves the acquisition or disposition of Real Property. Borrower's
written notice of each Real Property acquisition or disposition shall contain
a description of all improvements which are a part of such Real Property, the
square footage of such improvements, the acquisition or disposition price and
such other information with respect thereto reasonably requested by the Agent.
(t) OTHER INFORMATION. Such other information, reports,
contracts, schedules, lists, documents, agreements and instruments in the
possession of the REIT or Borrower with respect to (i) the Unencumbered
Assets or any other assets of the REIT or Borrower or any other Consolidated
Entity (either on an individual or an aggregate basis), (ii) any material
change in the REIT's investment, finance or operating policies, or (iii) the
REIT's, the Borrower's or any other Consolidated Entity's business, condition
(financial or otherwise), operations, performance, properties or prospects as
Agent may from time to time reasonably request, including, without
limitation, annual information with respect to cash flow projections,
budgets, operating statements (current year and immediately preceding year),
Rent Rolls, lease expiration reports, leasing status reports, note payable
summaries, bullet note summaries, equity funding requirements, contingent
liability summaries, line of credit summaries, line of credit collateral
summaries, wrap note or note receivable summaries, schedules of outstanding
letters of credit, summaries of Cash and Cash Equivalents, projections of
leasing fees and overhead budgets. Provided that Agent gives Borrower
reasonable prior notice and an opportunity to participate, Borrower hereby
authorizes Agent to communicate with the Accountants and authorizes the
Accountants to disclose to Agent any and all financial statements and other
information of any kind, including copies of any management letter or the
substance of any oral information, that such accountants may have with
respect to the Unencumbered Assets or the REIT's, Borrower's or any
Consolidated Entity's condition (financial or otherwise), operations,
properties, performance and prospects. Concurrently therewith, Agent will
notify Borrower of any such communication and, at Agent's request, Borrower
shall deliver a letter addressed to the Accountants instructing them to
disclose such information in compliance with this SECTION 5.1(t).
(u) PRESS RELEASES; SEC FILINGS AND FINANCIAL STATEMENTS.
Telephonic or telecopy notice to Agent concurrently with or prior to issuance
of any material press release concerning the REIT or Borrower and, as soon as
practicable after filing with the Commission, all reports and notices, proxy
statements, registration statements and prospectuses of the REIT. All
materials sent or made available generally by the REIT to the holders of its
publicly-held Securities or filed with the Commission, including all periodic
reports required to be filed with the Commission, shall be delivered by
Borrower or the REIT to Agent as soon as available.
(v) ACCOUNTANT REPORTS. Copies of all reports prepared by the
Accountants and submitted to Borrower or the REIT in connection with each
annual, interim or special audit or review of the financial statements or
practices of Borrower or the REIT, including the comment letter submitted by
the Accountants in connection with their annual audit.
5.2 ENVIRONMENTAL NOTICES. Borrower shall notify Agent, in writing,
as soon as practicable, and in any event within ten (10) days after a
Responsible Official of Borrower's or the REIT's learning thereof, of any:
(a) written notice or claim to the effect that the REIT, Borrower or any
Consolidated Entity is or may be liable to any Person as a result of any
material Release or threatened Release of any Contaminant into the
environment; (b) written notice that the REIT, Borrower or any Consolidated
Entity is subject to investigation by any Governmental Authority evaluating
whether any Remedial Action is needed to respond to the Release or threatened
Release of any Contaminant into the environment; (c) written notice that any
Property of the REIT, Borrower or any Consolidated Entity is subject to an
Environmental Lien; (d) written notice of violation of any Environmental Laws
to the REIT, Borrower or any Consolidated Entity or awareness of a condition
which might reasonably result in a notice of violation of any Environmental
Laws by the REIT, Borrower or any Consolidated Entity; (e) commencement or
written threat of any judicial or administrative proceeding alleging a
violation of any Environmental Laws; (f) written notice from a Governmental
Authority of any changes to any existing Environmental Laws that will have a
Material Adverse Effect on the operations of the REIT, Borrower or any
Consolidated Entity; or (g) any proposed acquisition of stock, assets, real
estate or leasing of property, or any other action by Borrower that, to the
best of Borrower's knowledge, could subject the REIT, Borrower or any
Consolidated Entity to environmental, health or safety Liabilities and Costs
that will have a Material Adverse Effect on the REIT, Borrower or any
Consolidated Entity. With regard to the matters referred to in clauses (a)
through (e) above, the same shall apply in respect of each Unencumbered Asset
only if the matter will have a Material Adverse Effect on such Unencumbered
Asset and, in the case of other Real Property of the REIT, Borrower or any
Consolidated Entity, only if the
matter will have a Material Adverse Effect on the REIT, Borrower or such
Consolidated Entity.
5.3 CONFIDENTIALITY. Confidential information obtained by Agent or
Lenders pursuant to this Agreement or in connection with the Advances shall
not be disseminated by Agent or Lenders and shall not be disclosed to third
parties except (a) to regulators, taxing authorities and other Governmental
Authorities having jurisdiction over Agent or such Lender or otherwise in
response to Requirements of Law, (b) to their respective auditors and legal
counsel and in connection with regulatory, administrative and judicial
proceedings as necessary or relevant, including enforcement proceedings
relating to the Loan Documents, and (c) to any prospective assignee of or
participant in a Lender's interest under this Agreement or any prospective
purchaser of the assets or a controlling interest in any Lender, provided
that such prospective assignee, participant or purchaser first agrees to be
bound by the provisions of this SECTION 5.3. In connection with disclosures
of confidential information to any non-governmental third-party, the
Lender(s) from whom the same has been requested shall, to the extent feasible
and permitted, give prior notice of such request to Borrower; however,
neither Agent nor any such Lender shall incur any liability to Borrower for
failure to do so. For purposes hereof, "confidential information" shall mean
all nonpublic information obtained by Agent or Lenders, unless and until such
information becomes publicly known, other than as a result of unauthorized
disclosure by Agent or Lenders of such information.
ARTICLE 6
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that, on and after the date hereof,
until payment in full of all of the Obligations, the expiration of the
Commitment and termination of this Agreement:
6.1 WITH RESPECT TO BORROWER:
(a) EXISTENCE. Borrower shall at all times maintain its existence
as a limited partnership and preserve and keep in full force and effect its
rights and franchises unless the failure to maintain such rights and franchises
does not have a Material Adverse Effect on Borrower.
(b) QUALIFICATION, NAME. Borrower shall qualify and remain
qualified to do business in each jurisdiction in which the nature of its
business requires it to be so qualified except for those jurisdictions where
failure to so qualify does not have a Material Adverse Effect on Borrower.
Borrower will transact business solely in its own name.
(c) COMPLIANCE WITH LAWS, ETC. Borrower shall (i) comply with all
Requirements of Law, and all restrictive covenants affecting Borrower or the
Properties, performance, prospects, assets or operations of Borrower, and
(ii) obtain as needed all Permits necessary for its operations and maintain such
in good standing, except in each of the foregoing cases where the failure to do
so will not have a Material Adverse Effect on Borrower.
(d) PAYMENT OF TAXES AND CLAIMS. Borrower shall pay (i) all
taxes, assessments and other governmental charges imposed upon it or on any
of its properties or assets or in respect of any of its franchises, business,
income or Property before any penalty or interest accrues thereon, the
failure to make payment of which will have a Material Adverse Effect on
Borrower, and (ii) all claims (including, without limitation, claims for
labor, services, materials and supplies) for sums, material in the aggregate
to Borrower, which have become due and payable and which by law have or may
become a Lien other than a judgment lien upon any of Borrower's Properties or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto. Notwithstanding the foregoing, Borrower may contest by
appropriate legal proceedings conducted in good faith and with due diligence,
the amount, validity or application, in whole or in part, of any taxes,
assessments, other governmental charges or claims described above, provided
that Borrower shall provide such security as may be reasonably
required by Agent to insure ultimate payment of the same and to prevent any sale
or forfeiture of any of Borrower's Property (or any portion thereof or interest
therein), provided however, that the provisions of this SECTION 6.1(d) shall not
be construed to permit Borrower to contest the payment of any Obligations or any
other sums payable by Borrower to Agent or Lenders hereunder or under any other
Loan Document. Notwithstanding any of the foregoing, Borrower shall indemnify,
defend and save Agent and Lenders harmless from and against any liability, cost
or expense of any kind that may be imposed on Agent or Lenders in connection
with any such contest and any loss resulting therefrom.
(e) MAINTENANCE OF PROPERTIES; INSURANCE. Borrower shall
maintain in good repair, working order and condition, excepting ordinary wear
and tear, all of its Property and will make or cause to be made all
appropriate repairs, renewals and replacements thereof. Borrower shall
maintain (a) insurance with responsible companies in such amounts and against
such risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which Borrower
operates, (b) insurance required by any Governmental Authority having
jurisdiction over Borrower, and (c) all other insurance reasonably required
by Agent from time to time. Neither Borrower nor any other Consolidated
Entity shall assign or otherwise transfer, or grant a security interest in,
any casualty insurance carried by it or in the proceeds of such insurance in
a manner which is disproportionate to the value of all of the Real Property
insured by Borrower or such Consolidated Entity.
(f) INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSION.
Borrower shall permit, and shall cause the REIT to permit, any authorized
representatives designated by any Lender to visit and inspect any of its
Properties (subject to rights of tenants), including all Unencumbered Assets,
upon reasonable prior notice, to inspect financial and accounting records and
leases, and to make copies and take extracts therefrom, all at such times
during normal business hours and as often as any Lender may reasonably
request; provided that all such visits and inspections shall be coordinated
through the Agent and provided that the Agent shall give reasonable prior
notice to
Borrower of all such visits and inspections. In connection therewith,
Borrower shall pay all expenses required by SECTION 11.1. Borrower will keep
proper books of record and account in which entries, in conformity with GAAP
and as otherwise required by this Agreement and applicable Requirements of
Law, shall be made of all dealings and transactions in relation to its
businesses and activities and as otherwise required under SECTION 5.1.
(g) MAINTENANCE OF PERMITS, ETC. Borrower will maintain in full
force and effect all Permits, franchises, patents, trademarks, trade names,
copyrights, authorizations or other rights necessary for the operation of its
business, except where the failure to obtain any of the foregoing would not
have a Material Adverse Effect on Borrower; and notify Agent in writing,
promptly after learning thereof, of the suspension, cancellation, revocation
or discontinuance of, or of any pending or threatened action or proceeding
seeking to suspend, cancel, revoke or discontinue, any material Permit,
patent, trademark, trade name, copyright, governmental approval, franchise
authorization or right.
(h) CONDUCT OF BUSINESS. Except for Investments expressly
permitted pursuant to SECTION 8.8 and investments in Cash and Cash
Equivalents, Borrower shall engage only in the business of acquiring,
developing, owning, operating and managing income producing Office Properties
within the continental United States and any business activities and
investments of Borrower incidental thereto.
(i) USE OF PROCEEDS. Borrower shall use the proceeds of the
Advances only for pre-developments costs, development costs, acquisition costs,
capital improvements, working capital, equity investments, repayment of
Indebtedness, including required interest and/or principal payments thereon and
for any other general corporate purposes, including distributions permitted
hereunder.
(j) REPAYMENT OF BRIDGE LOAN. Borrower shall repay to Xxxxx Fargo
Bank, on June 11, 1997, the outstanding principal balance of, and all accrued
and unpaid interest on, the Bridge Loan with an Advance hereunder.
(k) PAYMENT OF INTEREST ON ORIGINAL LOAN. Borrower shall pay to
Agent, on June 11, 1997, all accrued and unpaid interest under the Original
Loan.
6.2 WITH RESPECT TO THE REIT:
(a) CORPORATE EXISTENCE. The REIT shall at all times maintain its
corporate existence and preserve and keep in full force and effect its rights
and franchises unless the failure to maintain such rights and franchises will
not have a Material Adverse Effect on the REIT.
(b) QUALIFICATION, NAME. The REIT shall qualify and remain
qualified to do business in each jurisdiction in which the nature of its
business requires it to be so qualified except for those jurisdictions where
failure to so qualify does not have a Material Adverse Effect on the REIT. The
REIT will transact business solely in its own name.
(c) SECURITIES LAW COMPLIANCE. The REIT shall comply in all
material respects with all rules and regulations of the Commission and file all
reports required by the Commission relating to the REIT's publicly-held
Securities.
(d) CONTINUED STATUS A REIT; PROHIBITED TRANSACTIONS. The REIT
(i) will continue to be a real estate investment trust as defined in Section
856 of the Code (or any successor provision thereto), (ii) will not revoke
its election (once made) to be a real estate investment trust, (iii) will not
engage in any "prohibited transactions" as defined in Section 856(b)(6)(iii)
of the Code (or any successor provision thereto), and (iv) will continue to
be entitled to a dividend paid deduction meeting the requirements of Section
857 of the Code.
(e) NYSE LISTED COMPANY. The common stock of the REIT shall at
all times be listed for trading on the New York Stock Exchange.
(f) COMPLIANCE WITH LAWS, ETC. The REIT shall (i) comply with all
Requirements of Law and restrictive covenants affecting the REIT and (ii) obtain
as needed all
Permits necessary for its operations and maintain such in good standing, except
in each of the foregoing cases where the failure to do so will not have a
Material Adverse Effect on the REIT.
(g) PAYMENT OF TAXES AND CLAIMS. The REIT shall pay (i) all
taxes, assessments and other governmental charges imposed upon it or on any
of its properties or assets or in respect of any of its franchises, business,
income or Property before any penalty or interest accrues thereon, the
failure to make payment of which will have a Material Adverse Effect on the
REIT, and (ii) all claims (including, without limitation, claims for labor,
services, materials and supplies) for sums, material in the aggregate to the
REIT, which have become due and payable and which by law have or may become a
Lien other than a judgment lien upon any of the REIT's Properties or assets,
prior to the time when any penalty or fine shall be incurred with respect
thereto. Notwithstanding the foregoing, the REIT may contest by appropriate
legal proceedings conducted in good faith and with due diligence, the amount,
validity or application, in whole or in part, of any taxes, assessments,
other governmental charges or claims described above, provided that the REIT
shall provide such security as may be required by Agent to insure ultimate
payment of the same and to prevent any sale or forfeiture of any of the
REIT's Property (or any portion thereof or interest therein), provided,
however, that the provisions of this SECTION 6.2(g) shall not be construed to
permit the REIT to contest the payment of any obligations owed to Agent or
Lenders or any other sums payable by the REIT to Agent or Lenders hereunder
or under any other Loan Document. Notwithstanding any of the foregoing, the
REIT shall indemnify, defend and save Agent and Lenders harmless from and
against any liability, cost or expense of any kind that may be imposed on
Agent or Lenders in connection with any such contest and any loss resulting
therefrom.
(h) NET OFFERING PROCEEDS. Unless otherwise agreed in writing
by Requisite Lenders, the REIT shall immediately contribute any Net Offering
Proceeds to Borrower.
ARTICLE 7
NEGATIVE COVENANTS
Borrower covenants and agrees that, on and after the date hereof,
until payment in full of all of the Obligations, the expiration of the
Commitment and termination of this Agreement:
7.1 WITH RESPECT TO ALL PARTIES. Neither Borrower nor the REIT shall:
(a) RESTRICTIONS ON FUNDAMENTAL CHANGES.
(i) The REIT and Consolidated Entities shall not enter into
any merger, consolidation or reorganization or any sale of all or a
substantial portion of the assets of the REIT and the Consolidated
Entities, taken as a whole, or liquidate, wind up or dissolve, except
that (1) any Person engaged in the development and operation of class
A suburban Office Properties may merge or consolidate with and into
the REIT, the Borrower or any other Consolidated Entity, provided (A)
no Event of Default or event which, with the giving of notice or the
passage of time or both, could become an Event of Default, then exists
or would result therefrom, (B) the REIT, Borrower or such Consolidated
Entity, as the case may be, is the surviving entity, (C) Requisite
Lenders reasonably determine that such merger or consolidation will
not have a Material Adverse Effect on the Borrower or the REIT and (D)
the Borrower delivers to the Agent, prior to the REIT, the Borrower or
such Consolidated Entity becoming obligated (conditionally or
otherwise) to proceed with such transaction, a certificate, in form
and substance and in such detail as the Agent may reasonably require,
of the REIT's chief financial officer, chief executive officer or
chief operating officer demonstrating compliance with this Agreement
on a proforma basis giving effect to such transaction, and (2)
Borrower and the REIT may acquire interests in the CMBS Entities and
Borrower may contribute assets to such CMBS Entities;
(ii) Change its Fiscal Year; or
(iii) Engage in any line of business other than as expressly
permitted under SECTION 6.1(h).
(b) ERISA. Permit any ERISA Affiliates to do any of the following
to the extent that such act or failure to act would result in the aggregate,
after taking into account any other such acts or failure to act, in a Material
Adverse Effect on Borrower or the REIT:
(i) Engage, or knowingly permit an ERISA Affiliate to engage,
in any prohibited transaction described in Section 406 of ERISA or
Section 4975 of the Code which is not exempt under Section 407 or 408 of
ERISA or Section 4975(d) of the Code for which a class exemption is not
available or a private exemption has not been previously obtained from
the DOL;
(ii) Permit to exist any accumulated funding deficiency (as
defined in Section 302 of ERISA and Section 412 of the Code), whether or
not waived;
(iii) Fail, or permit an ERISA Affiliate to fail, to pay
timely required contributions or annual installments due with respect to
any waived funding deficiency to any Plan if such failure could result in
the imposition of a Lien or otherwise would have a Material Adverse
Effect on Borrower or the REIT;
(iv) Terminate, or permit an ERISA Affiliate to terminate, any
Benefit Plan which would result in any liability of Borrower or an ERISA
Affiliate under Title IV of ERISA or the REIT; or
(v) Fail, or permit any ERISA Affiliate to fail, to pay any
required installment under section (m) of Section 412 of the Code or any
other payment required under Section 412 of the Code on or before the due
date for such installment or other payment, if such failure could result
in the imposition of a Lien or otherwise
would have a Material Adverse Effect on Borrower or the REIT.
(c) DEBT AND GUARANTY OBLIGATIONS. Create, incur or assume any
Debt or Guaranty Obligations except:
(i) Subject to Section 8.9, below, Debt which is secured by
Real Property;
(ii) the City National Bank Loan;
(iii) Guaranty Obligations which do not, in the aggregate,
exceed Five Hundred Thousand Dollars ($500,000);
(iv) publicly-issued indebtedness or privately-placed
unsecured fixed rate term Debt;
(v) the Contribution Agreement;
(vi) the WFB Swap Agreement;
(vii) the demand promissory note of the REIT to Arden Realty
Finance, Inc., in the principal amount of $28,709,393; or
(viii) Debt of the REIT permitted under SECTION 7.7(b).
7.2 AMENDMENT OF CONSTITUENT DOCUMENTS. The Borrower shall not
materially amend its partnership agreement or certificate of limited partnership
without the prior written consent of Requisite Lenders, except as may be
required by applicable law or to comply with SECTION 6.2(d). The REIT shall not
materially amend its articles of incorporation or by-laws without the prior
written consent of Requisite Lenders, except (i) as required by applicable law
or (ii) as may be required to comply with SECTION 6.2(d).
7.3 MINIMUM OWNERSHIP INTEREST OF XXXXXXX XXXXX. Xxxxxxx Xxxxx shall at
all times retain directly or indirectly ownership (the "Ownership Interest"), in
the aggregate, of no
less than sixty-five percent (65%) of the Capital Stock of the REIT and
Partnership Units of Borrower owned, directly or indirectly, by Xxxxxxx Xxxxx
upon completion of the offering of the REIT's common stock as set forth in the
S-11; provided, however, that Partnership Units may be exchanged for Capital
Stock of the REIT; and provided further, however, that Xxxxxxx Xxxxx may
transfer some or all of his Capital Stock of the REIT and Partnership Units of
Borrower to an inter vivos trust over which he holds the power of revocation or
to his wife or his children or a trust for the benefit of his wife or children;
and provided further, however, that neither any such trust, his wife nor any of
his children (collectively, together with Xxxxxxx Xxxxx, the "Family") may
transfer any interest in such Capital Stock or Partnership Units to any Person
other than another Family member.
7.4 MANAGEMENT. Xxxxxxx Xxxxx shall not cease to be active on a full-
time, continuing basis in the senior management of Borrower and the REIT;
provided, however, that, if due to death or incapacity, Xxxxxxx Xxxxx is unable
to act in such capacity, Borrower shall have one hundred twenty (120) days to
obtain the approval of Requisite Lenders with respect to the new management. In
the event Borrower shall fail to obtain approval of Requisite Lenders within
such 120-day period, then Borrower shall, at the election and upon the demand of
Requisite Lenders pay in full all Obligations under the Loan Documents not later
than sixty (60) days after the end of such 120-day period, whereupon this
Agreement and the Commitment shall be terminated. No further Advances shall be
permitted until Borrower shall have obtained approval of Requisite Lenders under
this Section 7.4.
7.5 MARGIN REGULATIONS. No portion of the proceeds of any Advances
shall be used in any manner which might cause the extension of credit or the
application of such proceeds to violate Regulation G, T, U or X or any other
regulation of the Federal Reserve Board or to violate the Securities Exchange
Act or the Securities Act, in each case as in effect on the applicable Funding
Date.
7.6 ORGANIZATION OF BORROWER, ETC. Borrower shall remain a Maryland
limited partnership with the REIT as its sole
general partner. At no time shall Borrower be taxed as an association under the
Internal Revenue Code.
7.7 WITH RESPECT TO THE REIT:
(a) The REIT shall not own any material assets or engage in any
line of business other than the ownership of the partnership interests described
in SECTION 4.2(o) and as otherwise permitted under SECTION 7.1(a) and
SECTION 8.8.
(b) The REIT shall not directly or indirectly create, incur, assume
or otherwise become or remain directly or indirectly liable with respect to, any
Debt, except the obligations and other Indebtedness of Borrower, Indebtedness
constituting obligations of its Consolidated Entities or Unconsolidated Joint
Ventures, and obligations under the Guaranty.
(c) The REIT shall not directly or indirectly create, incur, assume
or permit to exist any Lien on or with respect to any of its Property or assets
except Liens in favor of Agent securing the Obligations.
(d) The REIT will not directly or indirectly convey, sell,
transfer, assign, pledge or otherwise encumber or dispose of any of its
partnership interests in Borrower held as of the Closing Date, except to secure
the Obligations.
ARTICLE 8
FINANCIAL COVENANTS
Borrower covenants and agrees that, on and after the date of this
Agreement and until payment in full of all the Obligations, the expiration of
the Commitment and the termination of this Agreement:
8.1 TANGIBLE NET WORTH. The Tangible Net Worth of the REIT and the
Consolidated Entities, as of the last day of each Fiscal Quarter, shall not be
less than the sum of (i) $294,988,000, plus (ii) 90% of the cumulative net cash
proceeds received from and the value of assets acquired (net of the Indebtedness
incurred or assumed in connection therewith) through the issuance of Capital
Stock of the REIT and Partnership Units of the Borrower after the "Closing Date"
(as defined in the Original Credit Agreement), other than issuance of Capital
Stock in exchange for Partnership Units. For the purposes of clause (ii), "net"
means net of underwriters' discounts, commissions and other reasonable out-of-
pocket expenses of the transaction actually paid to any Person (other than
Borrower or any Affiliate of Borrower).
8.2 MAXIMUM TOTAL LIABILITIES TO GROSS ASSET VALUE. The ratio of Total
Liabilities to Gross Asset Value shall not exceed 50% at any time.
8.3 MINIMUM INTEREST COVERAGE RATIO. As of the last day of any Fiscal
Quarter, the Interest Coverage Ratio shall not be less than 2.00:1.
8.4 MINIMUM FIXED CHARGE COVERAGE RATIO. As of the last day of any
Fiscal Quarter, the Fixed Charge Coverage Ratio shall not be less than 1.75:1.
8.5 MINIMUM UNENCUMBERED POOL. The aggregate Unencumbered Asset Value
of the Unencumbered Pool shall not, at any time, be less than 200% of the
unsecured Total Liabilities of the REIT and the Consolidated Entities.
8.6 MINIMUM UNSECURED INTEREST EXPENSE COVERAGE. As of the last day of
any Fiscal Quarter, the Unsecured Interest Expense Coverage Ratio of the REIT
and the Consolidated Entities shall not be less than 1.80:1.
8.7 DISTRIBUTIONS.
(a) Subject to SUBSECTION (b) below, aggregate distributions to
shareholders of the REIT and all partners of Borrower shall not exceed, for any
four (4) consecutive Fiscal Quarters, ninety-five percent (95%) of Funds from
Operations; provided, however, that Borrower may make additional distributions
to the REIT in connection with the formation of Arden Realty Finance, Inc.,
provided that such distributions do
not exceed, in the aggregate, $2,870,652 For purposes of this SECTION 8.7, the
term "distributions" shall mean all dividends and other distributions to, and
the repurchase of stock or limited partnership interests from, the holder of any
equity interests in Borrower or the REIT (other than the redemption of limited
partnership interests in Borrower in exchange for REIT stock).
(b) Aggregate distributions during the continuance of any Event of
Default shall not exceed the lesser of (i) the aggregate amount permitted to be
made during the continuance thereof under SUBSECTION (a) above, and (ii) the
minimum amount that the REIT must distribute to its shareholders in order to
avoid federal tax liability and to remain qualified as a real estate investment
trust as defined in Section 856 of the Code.
8.8 INVESTMENTS; ASSET MIX.
(a) The REIT shall not at any time make or own any Investment in
any Person, or purchase, lease or own any other asset or property, except (i)
any Investment in the Borrower, (ii) any Investment in the CMBS Entities, (iii)
any Capital Stock in the Consolidated Entities (other than the Borrower), and
(iv) any cash or other property that is being distributed to the shareholders of
the REIT substantially contemporaneously with the REIT's receipt of such cash or
other property.
(b) Except as permitted under SECTION 7.1(a), the Borrower shall
not at any time make or own any Investment in any Person, or purchase, lease or
own any Real Property or other asset, except that the Borrower may own or lease
the following, subject to the limitations set forth below:
Asset Type Limitation on Value
---------- -------------------
for Each Asset Type
-------------------
at the Time of
--------------
Determination
-------------
1. Wholly-Owned Office Property Unlimited
and related Property
2. Wholly-Owned Land 5% of Gross Asset
Value
3. Wholly-Owned Real Property 10% of Gross Asset
(other than Office Properties Value
or Land referred to in
clause 2)
4. Wholly-owned Capital Stock of 10% of Gross Asset
corporations Value
5. Investment Mortgages 15% of Gross Asset
Value
6. Wholly-owned Capital Stock of 15% of Gross Asset
Joint Ventures (other than Value
corporations)
7. Construction in Progress 12.5% of all Office
(exclusive of tenant Properties (based on
improvements) the total gross
leasable area,
measured in square
feet) (provided that
this category shall
not, with respect to
any construction in
progress (for any
Office Property) which
is not at least 70%
pre-leased and with
all Major Agreements
previously approved by
Agent, exceed 7% of
the total gross
leasable area,
measured in square
feet, of all Office
Properties)
Notwithstanding the foregoing, Investments and other assets in the
foregoing categories 2 through 6 may not, in the aggregate exceed, at any time,
25% of Gross Asset Value. All values of Investments and other assets shall be
the original cost of such Investments and assets, except as otherwise expressly
provided.
8.9 SECURED DEBT. The aggregate amount of all Debt of the REIT and the
Consolidated Entities secured by Real Property shall not, at any time, exceed
35% of Gross Asset Value.
ARTICLE 9
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
9.1 EVENTS OF DEFAULT. Each of the following occurrences shall constitute
an Event of Default under this Agreement:
(a) FAILURE TO MAKE PAYMENTS WHEN DUE. Borrower shall fail to pay
(i) any amount due on the Maturity Date, (ii) any principal when due, or
(iii) any interest on any Advance, or any fee or other amount payable under any
Loan Documents within three (3) days after the same becomes due.
(b) DISTRIBUTIONS. Borrower or the REIT shall breach any covenant
set forth in SECTION 6.2(d) or 8.7.
(c) BREACH OF FINANCIAL COVENANTS. Borrower shall (i) fail to
satisfy any financial covenant set forth in ARTICLE 8 other than the financial
covenants set forth in SECTIONS 8.3, 8.4 and 8.6, and such failure shall
continue for thirty (30) days, or (ii) fail to satisfy any of the financial
covenants set forth in SECTIONS 8.3, 8.4 or 8.6 (as to which there shall be no
cure period).
(d) OTHER DEFAULTS. The REIT or Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on Borrower or the REIT under this Agreement or under any of the other Loan
Documents (other than as described in any other provision of this SECTION 9.1),
and such failure shall continue for thirty (30) days after Borrower or the REIT
knew of such failure (or such lesser period of time as is mandated by applicable
Requirements of Law).
(e) BREACH OF REPRESENTATION OR WARRANTY. Any representation or
warranty made or deemed made by Borrower or the REIT to Agent or any Lender
herein or in any of the other Loan Documents or in any statement, certificate or
financial statements at any time given by Borrower pursuant to any of the Loan
Documents shall be false or misleading in any material respect on the date as of
which made.
(f) DEFAULT AS TO OTHER DEBT. Borrower or the REIT or any other
Consolidated Entity shall have defaulted (beyond any applicable grace period)
under any Debt of such party (other than the Obligations) if the aggregate
amount of such other Debt is One Million Dollars ($1,000,000) or more and such
default shall not have been cured or waived; PROVIDED, HOWEVER, that the
foregoing $1,000,000 limitation shall be increased to
Ten Million Dollars ($10,000,000) in the case of Nonrecourse Debt.
(g) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) An involuntary case shall be commenced against the REIT or
Borrower or any other Consolidated Entity and the petition shall not be
dismissed within sixty (60) days after commencement of the case, or a court
having jurisdiction shall enter a decree or order for relief in respect of
any such Person in an involuntary case, under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect; or any other
similar relief shall be granted under any applicable federal, state or
foreign law; or
(ii) A decree or order of a court having jurisdiction for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over the REIT or Borrower or any other
Consolidated Entity, or over all or a substantial part of the property of
any such Person, shall be entered; or an interim receiver, trustee or other
custodian of any such Person or of all or a substantial part of the
property of any such Person shall be appointed; or a warrant of attachment,
execution or similar process against any substantial part of the property
of any such Person shall be issued; and any such event shall not be stayed,
vacated, dismissed, bonded or discharged within sixty (60) days of entry,
appointment or issuance.
(h) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. The REIT or
Borrower or any other Consolidated Entity shall have an order for relief entered
with respect to it, or commence a voluntary case under, any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or shall
consent to the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such law, or
shall consent to the appointment of or taking of possession by a receiver,
trustee or other custodian for all or a substantial part of its property; any
such Person shall make any assignment for the benefit of creditors or shall be
unable or fail, or admit in writing its inability, to pay its debts as such
debts become due; or the general partner of Borrower or any other Consolidated
Entity or the REIT's Board of Directors (or any committee thereof) adopts any
resolution or otherwise authorizes any action to approve any of the foregoing.
(i) JUDGMENTS AND ATTACHMENTS. (i) Any money judgment (other than a
money judgment covered by insurance but only if the insurer has admitted
liability with respect to such money judgment), writ or warrant of attachment,
or similar process involving in any case an amount in excess of
One Million Dollars ($1,000,000) shall be entered or filed against the REIT,
Borrower, any other Consolidated Entity or their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of thirty (30)
days, or (ii) any judgment or order of any court or administrative agency
awarding material damages shall be entered against any such Person in any action
under the Federal securities laws seeking rescission of the purchase or sale of,
or for damages arising from the purchase or sale of, any Securities, such
judgment or order shall have become final after exhaustion of all available
appellate remedies and, in Agent's judgment, the payment of such judgment or
order would have a Material Adverse Effect on such Person.
(j) DISSOLUTION. Any order, judgment or decree shall be entered
against the REIT, Borrower or any other Consolidated Entity decreeing its
involuntary dissolution or split up and such order shall remain undischarged and
unstayed for a period in excess of thirty (30) days; or the REIT, Borrower or
any other Consolidated Entity shall otherwise dissolve or cease to exist.
(k) LOAN DOCUMENTS. If for any reason any Loan Document shall cease
to be in full force and effect and such condition or event shall continue for
fifteen (15) days after Borrower or the REIT knew of such condition or event.
(l) ERISA LIABILITIES. Any Termination Event occurs which will or is
reasonably likely to subject Borrower or the REIT or any ERISA Affiliate of any
of them to a liability which Agent reasonably determines will have a Material
Adverse Effect on Borrower or the REIT, or the plan administrator of any Benefit
Plan applies for approval under Section 412(d) of the Internal Revenue Code for
a waiver of the minimum funding standards of Section 412(a) of the Internal
Revenue Code and Agent reasonably determines that the business hardship upon
which the Section 412(d) waiver was based will or would reasonably be
anticipated to subject Borrower or the REIT to a liability which Agent
determines will have a Material Adverse Effect on Borrower or the REIT.
(m) ENVIRONMENTAL LIABILITIES. Borrower or the REIT becomes subject
to any Liabilities and Costs which Agent reasonably deems to have a Material
Adverse Effect on such Person arising out of or related to (i) the Release or
threatened Release at any Property of any Contaminant into the environment, or
any Remedial Action in response thereto, or (ii) any violation of any
Environmental Laws.
(n) SOLVENCY. Borrower or the REIT shall cease to be Solvent.
(o) BREACH OF GUARANTY. The REIT shall fail to duly and punctually
perform or observe any agreement, covenant or obligation under its Guaranty.
(p) SOLE GENERAL PARTNER. The REIT shall cease to be the sole
general partner of Borrower or cease to own 51% or more of the Partnership Units
of Borrower.
An Event of Default shall be deemed "continuing" until cured or waived
in writing in accordance with SECTION 11.4.
9.2 RIGHTS AND REMEDIES.
(a) ACCELERATION, ETC. Upon the occurrence of any Event of Default
described in the foregoing SECTION 9.1(g) or
9.1(h) with respect to the REIT or Borrower or any other Consolidated Entity,
the Commitment shall automatically and immediately terminate and the unpaid
principal amount of and any and all accrued interest on the Advances and all of
the other Obligations shall automatically become immediately due and payable,
with all additional interest, fees, costs and expenses from time to time accrued
thereon and/or payable hereunder, and without presentment, demand or protest or
other requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
or notice of acceleration), all of which are hereby expressly waived by
Borrower, and the obligations of Lenders to make any Advances hereunder shall
thereupon terminate; and upon the occurrence and during the continuance of any
other Event of Default, Agent shall, at the request, or may, with the consent of
Requisite Lenders, by written notice to Borrower, (i) declare that the
Commitment is terminated, whereupon the Commitment and the obligation of Lenders
to make any Advance hereunder shall immediately terminate, and/or (ii) declare
the unpaid principal amount of, any and all accrued and unpaid interest on the
Advances and all of the other Obligations to be, and the same shall thereupon
be, immediately due and payable with all additional interest from time to time
accrued thereon and without presentment, demand, or protest or other
requirements of any kind (including without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and of acceleration), all of which are hereby expressly waived by Borrower.
Without limiting Agent's authority hereunder, on or after the Maturity Date,
Agent shall, at the request, or may, with the consent, of Requisite Lenders
exercise any or all rights and remedies under the Loan Documents or applicable
law or in equity.
(b) ACCESS TO INFORMATION. If an Event of Default then exists, Agent
shall have, in addition to and not by way of a limitation on any other rights
and remedies contained in this Agreement or in the other Loan Documents, the
right within forty-eight (48) hours after notice to Borrower to obtain access to
Borrower's and the REIT's records (including computerized information, files and
supporting software) relating to the Uncumbered Assets, and its accounting
information relating to the Unencumbered Assets, and to use all
of the foregoing and the information contained therein in any manner Agent deems
appropriate which is related to the collection of the Obligations. Borrower
hereby irrevocably authorizes any accountant or management agent employed by
Borrower to deliver such items and information to Agent. Notwithstanding
anything to the contrary contained in the Loan Documents, upon the occurrence of
and during the continuance of an Event of Default, Agent shall be entitled to
request and receive, by or through Borrower or appropriate legal process, any
and all information concerning the REIT, Borrower, or any Property of either of
them, which is reasonably available to or obtainable by Borrower. Agent shall
deliver to each Lender copies of any information which it obtains pursuant to
this SECTION 9.2(b).
(c) WAIVER OF DEMAND. Demand, presentment, protest and notice of
nonpayment are hereby waived by Borrower. Borrower also waives, to the extent
permitted by law, the benefit of all valuation, appraisal and exemption laws.
(d) WAIVERS, AMENDMENTS AND REMEDIES. No delay or omission of Agent
or Lenders to exercise any right under any Loan Document shall impair such right
or be construed to be a waiver of any Event of Default or an acquiescence
therein, and any single or partial exercise of any such right shall not preclude
other or further exercise thereof or the exercise of any other right, and no
waiver, amendment or other variation of the terms, conditions or provisions of
the Loan Documents whatsoever shall be valid unless in a writing signed by Agent
after obtaining written approval thereof or the signature thereon of those
Lenders required to approve such waiver, amendment or other variation, and then
only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to Agent and Lenders until the Obligations have been paid in
full, the Commitment has expired or terminated and this Agreement has been
terminated.
9.3 RESCISSION. If, at any time after acceleration of the maturity of the
Advances, Borrower shall pay all arrears of interest and all payments on account
of principal of the Advances which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by law, on
overdue interest, at the rates specified in this Agreement) and all Events of
Default and Unmatured Events of Default (other than nonpayment of principal of
and accrued interest on the Advances due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to SECTION 11.4, then by
written notice to Borrower, Requisite Lenders may elect, in their sole
discretion, to rescind and annul the acceleration and its consequences; but such
action shall not affect any subsequent Event of Default or Unmatured Event of
Default or impair any right or remedy consequent thereon. The provisions of the
preceding sentence are intended merely to bind Lenders to a decision which may
be made at the election of Requisite Lenders; they are not intended to benefit
Borrower and do not give Borrower the right to require Lenders to rescind or
annul any acceleration hereunder, even if the conditions set forth herein are
met. Borrower shall have no right to enforce this Section 9.3, or to make any
claim hereunder, directly, or as a third party beneficiary, or otherwise.
ARTICLE 10
AGENCY PROVISIONS
10.1 APPOINTMENT.
(a) Each Lender hereby (i) designates and appoints Xxxxx Fargo as
Agent of such Lender under this Agreement and the other Loan Documents,
(ii) authorizes and directs Agent to enter into the Loan Documents other than
this Agreement for the benefit of Lenders, and (iii) authorizes Agent to take
such action on its behalf under the provisions of this Agreement and the other
Loan Documents and to exercise such powers as are set forth herein or therein,
together with such other powers as are reasonably incidental thereto, subject to
the limitations referred to in SECTIONS 10.10(a) and 10.10(b) and the other
provisions of this Agreement requiring consent or approval of all Lenders or
Requisite Lenders. Agent agrees to act as such on the express conditions
contained in this ARTICLE 10.
(b) The provisions of this ARTICLE 10 are solely for the benefit of
Agent and Lenders, and Borrower shall not have any right to rely on or enforce
any of the provisions hereof (provided that Borrower may rely on the provisions
of SECTION 10.4(b) and SECTION 10.9); PROVIDED, HOWEVER, the foregoing shall in
no way limit Borrower's obligations under this ARTICLE 10. In performing its
functions and duties under this Agreement, Agent shall act solely as Agent of
Lenders and does not assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or for Borrower or any
other Person.
10.2 NATURE OF DUTIES. Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in the
other Loan Documents. The duties of Agent shall be administrative in nature.
Subject to the provisions of SECTIONS 10.5 and 10.7, Agent shall administer the
Advances in the same manner as it administers its own loans. Promptly following
the effectiveness of this Agreement, Agent shall send to each Lender its
originally executed Note and the executed original, to the extent the same are
available in sufficient numbers, of each other Loan Document other than the
Notes in favor of other Lenders and filed or recorded security documents or
instruments, with the latter to be held and retained by Agent for the benefit of
all Lenders. Agent shall not have by reason of this Agreement a fiduciary
relationship in respect of any Lender. Nothing in this Agreement or any of the
other Loan Documents, expressed or implied, is intended or shall be construed to
impose upon Agent any obligation in respect of this Agreement or any of the
other Loan Documents except as expressly set forth herein or therein. Each
Lender shall make its own independent investigation of the financial condition
and affairs of the REIT and Borrower in connection with the making and the
continuance of the Advances hereunder and shall make its own appraisal of the
creditworthiness of the REIT and Borrower, and, except as specifically provided
herein, Agent shall not have any duty or responsibility, either initially or on
a continuing basis, to provide any Lender with any credit or other information
with respect thereto, whether coming into its possession before the Closing Date
or at any time or times thereafter.
10.3 DISBURSEMENTS OF ADVANCES.
(a) Promptly, but in any event not later than 5:00 p.m.
(San Francisco time) on the same Business Day on which Agent receives a Notice
of Borrowing, Agent shall send a copy thereof by facsimile to each other Lender
and shall otherwise notify each Lender of the proposed Advance and the Funding
Date. Each Lender shall make available to Agent (or the funding bank or entity
designated by Agent), the amount of such Lender's Pro Rata Share of such Advance
in immediately available funds not later than the times designated in
SECTION 10.3(b). Unless Agent shall have been notified by any Lender not later
than the close of business (San Francisco time) on the Business Day immediately
preceding the Funding Date in respect of any Advance that such Lender does not
intend to make available to Agent such Lender's Pro Rata Share of such Advance,
Agent may assume that such Lender shall make such amount available to Agent. If
any Lender does not notify Agent of its intention not to make available its Pro
Rata Share of such Advance as described above, but does not for any reason make
available to Agent such Lender's Pro Rata Share of such Advance, such Lender
shall pay to Agent forthwith on demand such amount, together with interest
thereon at the Federal Funds Rate. In any case where a Lender does not for any
reason make available to Agent such Lender's Pro Rata Share of such Advance,
Agent, in its sole discretion, may, but shall not be obligated to, fund to
Borrower such Lender's Pro Rata Share of such Advance. If Agent funds to
Borrower such Lender's Pro Rata Share of such Advance and if such Lender
subsequently pays to Agent such corresponding amount, such amount so paid shall
constitute such Lender's Pro Rata Share of such Advance. Nothing in this
SECTION 10.3(a) shall alter the respective rights and obligations of the parties
hereunder in respect of a Defaulting Lender or a Non-Pro Rata Advance.
(b) Requests by Agent for funding by Lenders of Advances will be made
by telecopy. Each Lender shall make the amount of its Advance available to
Agent in Dollars and in immediately available funds, to such bank and account,
in El Segundo, California as Agent may designate, not later than 9:00 A.M.
(San Francisco time) on the Funding Date designated in the Notice of Borrowing
with respect to such Advance, but in
no event earlier than two (2) Business Days following such Lender's receipt of
the applicable Notice of Borrowing.
(c) Nothing in this SECTION 10.3 shall be deemed to relieve any
Lender of its obligation hereunder to make its Pro Rata Share of any Advance on
the applicable Funding Date, nor shall any Lender be responsible for the failure
of any other Lender to perform its obligations to make any Advance hereunder,
and the Pro Rata Share of any Lender shall not be increased or decreased as a
result of the failure by any other Lender to perform its obligation to make an
Advance.
10.4 DISTRIBUTION AND APPORTIONMENT OF PAYMENTS.
(a) Subject to SECTION 10.4(b), payments actually received by Agent
for the account of Lenders shall be paid to them promptly after receipt thereof
by Agent, but in any event within one (1) Business Day, PROVIDED that Agent
shall pay to Lenders interest thereon, at the Federal Funds Rate, from the
Business Day following receipt of such funds by Agent until such funds are paid
in immediately available funds to Lenders. Subject to SECTION 10.4(b), all
payments of principal and interest in respect of outstanding Advances, all
payments of the fees described in this Agreement, and all payments in respect of
any other Obligations shall be allocated among such Lenders as are entitled
thereto, in proportion to their respective Pro Rata Shares or otherwise as
provided herein. Agent shall promptly distribute, but in any event within one
(1) Business Day after it receives the same, to each Lender at its primary
address set forth on the appropriate signature page hereof or on the Assignment
and Assumption, or at such other address as a Lender may request in writing,
such funds as it may be entitled to receive; PROVIDED that Agent shall in any
event not be bound to inquire into or determine the validity, scope or priority
of any interest or entitlement of any Lender and may suspend all payments and
seek appropriate relief (including, without limitation, instructions from
Requisite Lenders or all Lenders, as applicable, or an action in the nature of
interpleader) in the event of any doubt or dispute as to any apportionment or
distribution contemplated hereby. The order of priority herein is set forth
solely to determine the rights and priorities of Lenders as among themselves and
may at
any time or from time to time be changed by Lenders as they may elect, in
writing in accordance with SECTION 11.4, without necessity of notice to or
consent of or approval by Borrower or any other Person. All payments or other
sums received by Agent for the account of Lenders (including, without
limitation, principal and interest payments) shall not constitute property or
assets of the Agent and shall be held by Agent, solely in its capacity as agent
for itself and the other Lenders, subject to the Loan Documents.
(b) Notwithstanding any provision hereof to the contrary, until such
time as a Defaulting Lender has funded its Pro Rata Share of any Advance which
was previously a Non-Pro Rata Advance, or all other Lenders have received
payment in full (whether by repayment or prepayment) of the principal and
interest due in respect of such Non-Pro Rata Advance, all of the Obligations
owing to such Defaulting Lender hereunder shall be subordinated in right of
payment, as provided in the following sentence, to the prior payment in full of
all principal, interest and fees in respect of all Non-Pro Rata Advances in
which the Defaulting Lender has not funded its Pro Rata Share (such principal,
interest and fees being referred to as "Senior Loans"). All amounts paid by
Borrower and otherwise due to be applied to the Obligations owing to the
Defaulting Lender pursuant to the terms hereof shall be distributed by Agent to
the other Lenders in accordance with their respective Pro Rata Shares
(recalculated for purposes hereof to exclude the Defaulting Lender's Pro Rata
Share of the Commitment), until all Senior Loans have been paid in full. This
provision governs only the relationship among Agent, each Defaulting Lender and
the other Lenders; nothing hereunder shall limit the obligation of Borrower to
repay all Advances in accordance with the terms of this Agreement, nor create an
Event of Default if payments are not made to a Defaulting Lender. The
provisions of this Section shall apply and be effective regardless of whether an
Event of Default occurs and is then continuing, and notwithstanding (i) any
other provision of this Agreement to the contrary, (ii) any instruction of
Borrower as to its desired application of payments or (iii) the suspension of
such Defaulting Lender's right to vote on matters which are subject to the
consent or approval of Requisite Lenders or all Lenders. No Unused Facility Fee
shall accrue in favor of, or be payable
to, such Defaulting Lender from the date of any failure to fund Advances or
reimburse Agent for any Liabilities and Costs as herein provided until such
failure has been cured, and Agent shall be entitled to (A) withhold or
setoff, and to apply to the payment of the defaulted amount and any related
interest, any amounts to be paid to such Defaulting Lender under this
Agreement, and (B) bring an action or suit against such Defaulting Lender in
a court of competent jurisdiction to recover the defaulted amount and any
related interest. In addition, the Defaulting Lender shall indemnify, defend
and hold Agent and each of the other Lenders harmless from and against any
and all Liabilities and Costs, plus interest thereon at the Default Rate,
which they may sustain or incur by reason of or as a direct consequence of
the Defaulting Lender's failure or refusal to abide by its obligations under
this Agreement.
10.5 RIGHTS, EXCULPATION, ETC. Neither Agent, any Affiliate of Agent,
nor any of their respective officers, directors, employees, agents, attorneys
or consultants, shall be liable to any Lender for any action taken or omitted
by them under this Agreement or under any of the other Loan Documents, or in
connection herewith or therewith, except that Agent shall be liable for its
gross negligence or willful misconduct. In the absence of gross negligence
or willful misconduct, Agent shall not be liable for any apportionment or
distribution of payments made by it in good faith pursuant to SECTION 10.4,
and if any such apportionment or distribution is subsequently determined to
have been made in error the sole recourse of any Person to whom payment was
due, but not made, shall be to recover from the recipients of such payments
any payment in excess of the amount to which they are determined to have been
entitled. Agent shall not be responsible to any Lender for any recitals,
statements, representations or warranties herein or for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Agreement, or any of the other Loan Documents, or any of
the transactions contemplated hereby and thereby; or for the financial
condition of the REIT, Borrower or any of their Affiliates. Agent shall not
be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement or
any of the
other Loan Documents or the financial condition of the REIT, Borrower or any of
their Affiliates, or the existence or possible existence of any Unmatured Event
of Default or Event of Default.
10.6 RELIANCE. Agent shall be entitled to rely upon any written notices,
statements, certificates, orders or other documents, telecopies or any telephone
message believed by it in good faith to be genuine and correct and to have been
signed, sent or made by the proper Person, and with respect to all matters
pertaining to this Agreement or any of the other Loan Documents and its duties
hereunder or thereunder, upon advice of legal counsel (including counsel for
Borrower), independent public accountants and other experts selected by it.
10.7 INDEMNIFICATION. To the extent that Agent is not reimbursed and
indemnified by Borrower, Lenders will reimburse, within ten (10) Business
Days after notice from Agent, and indemnify and defend Agent from and against
any and all Liabilities and Costs which may be imposed on, incurred by, or
asserted against it in any way relating to or arising out of this Agreement,
or any of the other Loan Documents or any action taken or omitted by Agent
under this Agreement, or any of the other Loan Documents, in proportion to
each Lender's Pro Rata Share; PROVIDED that no Lender shall be liable for any
portion of such Liabilities and Costs resulting from Agent's gross negligence
or willful misconduct. The obligations of Lenders under this SECTION 10.7
shall survive the payment in full of all Obligations and the termination of
this Agreement. In the event that after payment and distribution of any
amount by Agent to Lenders, any Lender or third party, including Borrower,
any creditor of Borrower or a trustee in bankruptcy, recovers from Agent any
amount found to have been wrongfully paid to Agent or disbursed by Agent to
Lenders, then Lenders, in proportion to their respective Pro Rata Shares,
shall reimburse Agent for all such amounts. Notwithstanding the foregoing,
Agent shall not be obligated to advance Liabilities and Costs and may require
the deposit by each Lender of its Pro Rata Share of any material Liabilities
and Costs reasonably anticipated by Agent before they are incurred, made or
payable.
10.8 AGENT INDIVIDUALLY. With respect to its Pro Rata Share of the
Commitment and the Advances made by it, Agent shall have and may exercise the
same rights and powers hereunder and is subject to the same obligations and
liabilities as and to the extent set forth herein for any other Lender. Agent
and any Lender and its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with the REIT,
Borrower or any of their respective Affiliates as if it were not acting as Agent
or Lender pursuant hereto.
10.9 SUCCESSOR AGENT; RESIGNATION OF AGENT; REMOVAL OF AGENT.
(a) Agent may resign from the performance of all its functions and
duties hereunder at any time by giving at least thirty (30) Business Days' prior
written notice to Lenders and Borrower, and shall automatically cease to be
Agent hereunder in the event a petition in bankruptcy shall be filed by or
against Agent or the Federal Deposit Insurance Corporation or any other
Governmental Authority shall assume control of Agent or Agent's interests under
this Agreement and the other Loan Documents. Further, Requisite Lenders (other
than Agent) may remove Agent at any time for good cause by giving at least
thirty (30) Business Days' prior written notice to Agent, Borrower and all other
Lenders. Such resignation or removal shall take effect upon the acceptance by a
successor Agent of appointment pursuant to CLAUSE (b) or (c).
(b) Upon any such notice of resignation by or removal of Agent,
Requisite Lenders shall appoint a successor Agent which appointment shall be
subject to Borrower's consent (other than upon the occurrence and during the
continuance of any Event of Default), which shall not be unreasonably withheld
or delayed. Any successor Agent must be a Lender (i) the senior debt
obligations of which (or such Lender's parent's senior unsecured debt
obligations) are rated not less than Baa-2 by Xxxxx'x Investors Service, Inc. or
a comparable rating by a rating agency acceptable to Requisite Lenders and
(ii) which has total assets in excess of Ten Billion Dollars ($10,000,000,000).
Such successor Agent shall separately
confirm in writing with Borrower the fee to be paid to such Agent pursuant to
SECTION 2.5(c).
(c) If a successor Agent shall not have been so appointed within said
thirty (30) Business Day period, the retiring or removed Agent, with the consent
of Borrower (other than upon the occurrence and during the continuance of any
Event of Default)(which may not be unreasonably withheld or delayed), shall then
appoint a successor Agent who shall meet the requirements described in
SUBSECTION (b) above and who shall serve as Agent until such time, if any, as
Requisite Lenders, with the consent of Borrower (other than upon the occurrence
and during the continuance of any Event of Default), appoint a successor Agent
as provided above.
10.10 CONSENT AND APPROVALS.
(a) In addition to any other term or provision of this Agreement
which requires the consent or approval of, or other action by, Requisite
Lenders, each consent, approval, amendment, modification or waiver specifically
enumerated in this SECTION 10.10(a) shall require the consent of Requisite
Lenders:
(i) Approval of any material amendment of organizational
documents (SECTION 7.2);
(ii) Approval of certain changes in the senior management
(SECTION 7.4);
(iii) Acceleration following an Event of Default (SECTION 9.2(a))
or rescission of such acceleration (SECTION 9.3);
(iv) Approval of the exercise of rights and remedies under the
Loan Documents following an Event of Default (SECTION 9.2(a));
(v) Approval of a change in the method of calculation of any
financial covenants, standards or terms as a result of a change in GAAP
(SECTION 11.3); and
(vi) Except as referred to in SUBSECTION (b) below, approval of
any amendment, modification or termination of this Agreement, or waiver of
any provision herein.
(b) Each consent, approval, amendment, modification or waiver
specifically enumerated in SECTION 11.4 shall require the consent of all
Lenders.
(c) In addition to the required consents or approvals referred to in
SUBSECTION (a) above, Agent may at any time request instructions from Requisite
Lenders with respect to any actions or approvals which, by the terms of this
Agreement or of any of the Loan Documents, Agent is permitted or required to
take or to grant without instructions from any Lenders and if such instructions
are promptly requested, Agent shall be absolutely entitled to refrain from
taking any action or to withhold any approval and shall not be under any
liability whatsoever to any Person for refraining from taking any action or
withholding any approval under any of the Loan Documents until it shall have
received such instructions from Requisite Lenders. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against Agent as
a result of Agent acting or refraining from acting under this Agreement, or any
of the other Loan Documents in accordance with the instructions of Requisite
Lenders or, where applicable, all Lenders. Agent shall promptly notify each
Lender at any time that the Requisite Lenders have instructed Agent to act or
refrain from acting pursuant hereto.
(d) Each Lender agrees that any action taken by Agent at the
direction or with the consent of Requisite Lenders in accordance with the
provisions of this Agreement or any Loan Document, and the exercise by Agent at
the direction or with the consent of Requisite Lenders of the powers set forth
herein or therein, together with such other powers as are reasonably incidental
thereto, shall be authorized and binding upon all Lenders, except for actions
specifically requiring the approval of all Lenders. All communications from
Agent to Lenders requesting Lenders' determination, consent, approval or
disapproval (i) shall be given in the form of a written notice to each Lender,
(ii) shall be accompanied by a description of
the matter or thing as to which such determination, approval, consent or
disapproval is requested, or shall advise each Lender where such matter or thing
may be inspected, or shall otherwise describe the matter or issue to be
resolved, (iii) shall include, if reasonably requested by a Lender and to the
extent not previously provided to such Lender, written materials and a summary
of all oral information provided to Agent by Borrower in respect of the matter
or issue to be resolved, and (iv) shall include Agent's recommended course of
action or determination in respect thereof. Each Lender shall reply promptly,
but in any event within ten (10) Business Days (the "Lender Reply Period").
Unless a Lender shall give written notice to Agent that it objects to the
recommendation or determination of Agent (together with a written explanation of
the reasons behind such objection) within the Lender Reply Period, such Lender
shall be deemed to have approved of or consented to such recommendation or
determination and Borrower and each other Lender may rely on such approval as if
given. With respect to decisions requiring the approval of Requisite Lenders or
all Lenders, Agent shall submit its recommendation or determination for approval
of or consent to such recommendation or determination to all Lenders and upon
receiving the required approval or consent shall follow the course of action or
determination recommended to Lenders by Agent or such other course of action
recommended by Requisite Lenders, and each non-responding Lender shall be deemed
to have concurred with such recommended course of action.
10.11 CERTAIN AGENCY PROVISIONS RELATING TO ENFORCEMENT. Should Agent
(i) employ counsel for advice or other representation (whether or not any suit
has been or shall be filed) with respect to any of the Loan Documents, or
(ii) commence any proceeding or in any way seek to enforce its rights or
remedies under the Loan Documents, each Lender, upon demand therefor from time
to time, shall contribute its share (based on its Pro Rata Share) of the
reasonable costs and/or expenses of any such advice or other representation or
enforcement, including, but not limited to, court costs, title company charges,
filing and recording fees, appraisers' fees and fees and expenses of attorneys
to the extent not otherwise reimbursed by Borrower; PROVIDED that Agent shall
not be entitled to reimbursement of its attorneys' fees and expenses
incurred in connection with the resolution of disputes between Agent and other
Lenders unless Agent shall be the prevailing party in any such dispute. Any
loss of principal and/or interest resulting from any Event of Default shall be
shared by Lenders in accordance with their respective Pro Rata Shares. It is
understood and agreed that in the event Agent determines it is necessary to
engage counsel for Lenders from and after the occurrence of an Event of Default,
said counsel shall be selected by Agent.
10.12 RATABLE SHARING. Subject to SECTIONS 10.3 and 10.4, Lenders agree
among themselves that (i) with respect to all amounts received by them which are
applicable to the payment of the Obligations, equitable adjustment will be made
so that, in effect, all such amounts will be shared among them ratably in
accordance with their Pro Rata Shares, whether received by voluntary payment, by
counterclaim or cross action or by the enforcement of any or all of the
Obligations, (ii) if any of them shall by voluntary payment or by the exercise
of any right of counterclaim or otherwise, receive payment of a proportion of
the aggregate amount of the Obligations held by it which is greater than its Pro
Rata Share of the payments on account of the Obligations, the one receiving such
excess payment shall purchase, without recourse or warranty, an undivided
interest and participation (which it shall be deemed to have done simultaneously
upon the receipt of such payment) in such Obligations owed to the others so that
all such recoveries with respect to such Obligations shall be applied ratably in
accordance with their Pro Rata Shares; PROVIDED, that if all or part of such
excess payment received by the purchasing party is thereafter recovered from it,
those purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to that party to the extent necessary to adjust
for such recovery, but without interest except to the extent the purchasing
party is required to pay interest in connection with such recovery. Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this SECTION 10.12 may, to the fullest extent permitted by law,
exercise all its rights of payment with respect to such participation as fully
as if such Lender were the direct creditor of Borrower in the amount of such
participation. No Lender shall exercise any setoff,
banker's lien or other similar right in respect to any Obligations without the
prior written approval by Agent.
10.13 DELIVERY OF DOCUMENTS. Agent shall, as soon as reasonably
practicable, distribute to each Lender at its primary address set forth on the
appropriate counterpart signature page hereof, or at such other address as a
Lender may request in writing, (i) copies of all documents to which such Lender
is a party or of which such Lender is a beneficiary, (ii) all documents of which
Agent receives copies from Borrower pursuant to SECTIONS 5.1 and 11.6, (iii) all
other documents or information which Agent is required to send to Lenders
pursuant to the terms of this Agreement, (iv) all other information or documents
received by Agent at the request of any Lender, and (v) all notices received by
Agent pursuant to SECTION 5.2. In addition, within fifteen (15) Business Days
after receipt of a request in writing from a Lender for written information or
documents provided by or prepared by Borrower, the REIT or any Consolidated
Entity, Agent shall deliver such written information or documents to such
requesting Lender if Agent has possession of such written information or
documents in its capacity as Agent or as a Lender.
10.14 NOTICE OF EVENTS OF DEFAULT. Agent shall not be deemed to have
knowledge or notice of the occurrence of any Unmatured Event of Default or Event
of Default (other than nonpayment of principal of or interest on the Advances)
unless Agent has received notice in writing from a Lender or Borrower
describing such event or condition and expressly stating that such notice is a
notice of an Unmatured Event of Default or Event of Default. Should Agent
receive such notice of the occurrence of an Unmatured Event of Default or Event
of Default, or should Agent send Borrower a notice of Unmatured Event of Default
or Event of Default, Agent shall promptly give notice thereof to each Lender.
If any individual employed by any Lender who is responsible for managing, or
otherwise involved in, the relationship between such Lender and the Borrower in
connection with this Agreement or such Lender and the Agent in connection with
this Agreement, has or acquires actual knowledge of an Unmatured Event of
Default or Event of Default, such Lender shall promptly give written notice
thereof to Agent.
ARTICLE 11
MISCELLANEOUS
11.1 EXPENSES.
(a) GENERALLY. Borrower agrees to pay, or reimburse Agent for,
within seven (7) days after receipt of written demand, all of Agent's external
audit, legal, appraisal, valuation and investigation expenses and for all other
reasonable costs and expenses of every type and nature (including, without
limitation, the fees and charges of outside appraisers and reasonable fees,
expenses and disbursements of Agent's internal appraisers, environmental
advisors or legal counsel) incurred by Agent at any time (whether prior to, on
or after the date of this Agreement) in connection with (i) its own audit and
investigation of Borrower and the REIT; (ii) the negotiation, preparation and
execution of this Agreement (including, without limitation, the satisfaction or
attempted satisfaction of any of the conditions set forth in ARTICLE 3), and the
other Loan Documents and the making of the Advances; (iii) review and
investigation of Real Property which is proposed for inclusion within the
Unencumbered Pool and Unencumbered Assets within the Unencumbered Pool;
(iv) administration of this Agreement, the other Loan Documents and the
Advances, including, without limitation, consultation with attorneys in
connection therewith; (v) syndication of, assignments of and participations in
this Agreement and the other Loan Documents; and (vi) the protection, collection
or enforcement of any of the Obligations.
(b) AFTER EVENT OF DEFAULT. Borrower further agrees to pay, or
reimburse Agent and Lenders, for all reasonable out-of-pocket costs and
expenses, including, without limitation, the reasonable attorneys' fees and
disbursements of one law firm incurred by Agent or Lenders after the occurrence
and during the continuance of an Event of Default (i) in enforcing any
Obligation or exercising or enforcing any other right or remedy available by
reason of such Event of Default; (ii) in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature
of a "work-out" or in any insolvency or bankruptcy proceeding; (iii) in
commencing, defending or intervening in any litigation or in filing a petition,
complaint, answer, motion or other pleadings in any legal proceeding relating to
Borrower or the REIT and related to or arising out of the transactions
contemplated hereby; or (iv) in taking any other action in or with respect to
any suit or proceeding (whether in bankruptcy or otherwise).
11.2 INDEMNITY. Borrower further agrees to defend, protect, indemnify and
hold harmless Agent, each and all of the Lenders, each of their respective
Affiliates and each of the respective officers, directors, employees, agents,
attorneys and consultants (including, without limitation, those retained in
connection with the satisfaction or attempted satisfaction of any of the
conditions set forth in ARTICLE 3) of each of the foregoing (collectively called
the "Indemnitees") from and against any and all Liabilities and Costs imposed
on, incurred by, or asserted against such Indemnitees (whether based on any
federal or state laws or other statutory regulations, including, without
limitation, securities and commercial laws and regulations, under common law or
in equity, and based upon contract or otherwise, including any liability and
costs arising as a result of a "prohibited transaction" under ERISA to the
extent arising from or in connection with the past, present or future operations
of the REIT or Borrower or their respective predecessors in interest) in any
manner relating to or arising out of this Agreement or the other Loan Documents,
or any act, event or transaction related or attendant thereto, the making of and
participation in the Advances and the management of the Advances, or the use or
intended use of the proceeds of the Advances (collectively, the "Indemnified
Matters"); PROVIDED, HOWEVER, that Borrower shall have no obligation to an
Indemnitee hereunder with respect to (a) matters for which such Indemnitee has
been compensated pursuant to or for which an exemption is provided in
SECTION 2.4(g) or any other provision of this Agreement, and (b) Indemnified
Matters to the extent caused by or resulting from the willful misconduct or
gross negligence of that Indemnitee, as determined by a court of competent
jurisdiction. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it
is violative of any law or public policy, Borrower shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law to the
payment and satisfaction of all Indemnified Matters incurred by the Indemnitees.
11.3 CHANGE IN ACCOUNTING PRINCIPLES AND "FUNDS FROM OPERATIONS"
DEFINITION. Except as otherwise provided herein, if any changes in accounting
principles from those used in the preparation of the most recent financial
statements delivered to Agent pursuant to the terms hereof are hereafter
required or permitted by the rules, regulations, pronouncements and opinions of
the Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with similar functions)
and are adopted by the REIT or Borrower with the agreement of its Accountants
and such changes result in a change in the method of calculation of any of the
financial covenants, standards or terms found herein, the parties hereto agree
to enter into negotiations in order to amend such provisions so as to equitably
reflect such changes with the desired result that the criteria for evaluating
the financial condition of the REIT and the Consolidated Entities shall be the
same after such changes as if such changes had not been made; PROVIDED, HOWEVER,
that no change in GAAP that would affect the method of calculation of any of the
financial covenants, standards or terms shall be given effect in such
calculations until such provisions are amended, in a manner satisfactory to
Requisite Lenders, to so reflect such change in accounting principles. The
definition of "Funds from Operations" set forth in Article 1 is based upon the
definition of "Funds From Operations" promulgated by the National Association of
Real Estate Investment Trusts and effective as of January 1, 1996 (the "NAREIT
Definition"). If the NAREIT Definition is modified after the date of this
Agreement, the parties hereto agree to enter into negotiations if any party so
requests in order to amend the definition of "Funds from Operations" set forth
in this Agreement to make it consistent with the modified NAREIT Definition;
PROVIDED, HOWEVER, that no change in such definition of "Funds from Operations"
shall be given effect until such definition is amended, in a manner satisfactory
to Requisite Lenders, to so reflect such modification in the NAREIT Definition
of "Funds From Operations"; and PROVIDED FURTHER, HOWEVER, that if the
effect of such change in the definition of "Funds from Operations" is to
restrict the amount of distributions permitted under this Agreement to amounts
less than what are required to maintain the REIT's status as a real estate
investment trust under the Code, then Borrower shall be permitted to make the
minimum distribution necessary to maintain the REIT's status as a real estate
investment trust under the Code so long as such distribution would have been
permitted under the "Funds from Operations" definition in effect as of the
Closing Date.
11.4 AMENDMENTS AND WAIVERS. (a) No amendment or modification of any
provision of this Agreement shall be effective without the written agreement of
Requisite Lenders (after notice to all Lenders) and Borrower (except for
amendments to SECTION 10.4(a) which do not require the consent of Borrower), and
(b) no termination or waiver of any provision of this Agreement, or consent to
any departure by Borrower therefrom (except as expressly provided in
SECTION 2.4(e) with respect to waivers of late fees), shall in any event be
effective without the written concurrence of Requisite Lenders (after notice to
all Lenders), which Requisite Lenders shall have the right to grant or withhold
at their sole discretion, EXCEPT THAT the following amendments, modifications or
waivers shall require the consent of all Lenders:
(i) increasing the Commitment and/or any Lender's Pro Rata Share
of the Commitment;
(ii) changing the principal amount or final maturity of the
Advances or otherwise changing the Maturity Date;
(iii) reducing the interest rates applicable to the Advances;
(iv) reducing the rates on which fees payable pursuant hereto are
determined;
(v) forgiving or delaying any amount payable or receivable under
ARTICLE 2 (other than late fees in accordance with SECTION 2.4(e));
(vi) changing the definition of "Requisite Lenders" or "Pro Rata
Shares";
(vii) changing any provision contained in this SECTION 11.4;
(viii) releasing any obligor under any Loan Document, unless such
release is otherwise required or permitted by the terms of this Agreement;
(ix) amending or otherwise modifying the Guaranty; or
(x) consenting to assignment by Borrower of all of its duties
and Obligations hereunder pursuant to SECTION 11.14.
No amendment, modification, termination or waiver of any provision of ARTICLE 10
or any other provision referring to Agent shall be effective without the written
concurrence of Agent, but only if such amendment, modification, termination or
waiver alters the obligations or rights of Agent. Any waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which it was given. No notice to or demand on Borrower in any case shall
entitle Borrower to any other further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this SECTION 11.4 shall be binding on each assignee,
transferee or recipient of Agent's or any Lender's Pro Rata Share of the
Commitment under this Agreement or the Advances at the time outstanding.
Borrower shall be entitled to rely on any amendment or waiver executed by the
Agent on behalf of the Lenders provided that Agent certifies to Borrower that
Agent obtained the approvals or consents required under this Agreement of
Requisite Lender or all Lenders, as the case may be.
11.5 INDEPENDENCE OF COVENANTS. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitations of, another covenant shall not
avoid the occurrence of an Event of Default or Unmatured Event of Default if
such action is taken or condition exists, and if a particular action or
condition is expressly permitted under any covenant, unless expressly limited to
such covenant, the fact that it would not be permitted under the general
provisions of another covenant shall not constitute an Event of Default or
Unmatured Event of Default if such action is taken or condition exists.
11.6 NOTICES AND DELIVERY. Unless otherwise specifically provided herein,
any consent, notice or other communication herein required or permitted to be
given shall be in writing and may be personally served, telecopied or sent by
courier service or United States mail and shall be deemed to have been given
when delivered in person or by courier service, upon receipt of a telecopy (or
on the next Business Day if such telecopy is received on a non-Business Day or
after 5:00 p.m. on a Business Day) or four (4) Business Days after deposit in
the United States mail (registered or certified, with postage prepaid and
properly addressed). Notices to Agent pursuant to ARTICLE 2 shall not be
effective until received by Agent. For the purposes hereof, the addresses of
the parties hereto (until notice of a change thereof is delivered as provided in
this SECTION 11.6) shall be as set forth below each party's name on the
signature pages hereof, or, as to each party, at such other address as may be
designated by such party in a written notice to all of the other parties. All
deliveries to be made to Agent for distribution to the Lenders shall be made to
Agent at the address specified for notice on the signature page hereto and in
addition, a sufficient number of copies of each such delivery shall be delivered
to Agent for delivery to each Lender at the address specified for deliveries on
the signature page hereto or such other address as may be designated by Agent in
a written notice.
11.7 SURVIVAL OF WARRANTIES, INDEMNITIES AND AGREEMENTS. All agreements,
representations, warranties and indemnities made or given herein shall survive
the execution and delivery of this Agreement and the other Loan Documents and
the making and repayment of the Advances hereunder and such indemnities shall
survive termination hereof.
11.8 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of Agent or any Lender in the exercise of any power, right or
privilege under any of the Loan Documents shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence therein,
nor shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other right, power or
privilege. All rights and remedies existing under the Loan Documents are
cumulative to and not exclusive of any rights or remedies otherwise available.
11.9 PAYMENTS SET ASIDE. To the extent that Borrower makes a payment or
payments to Agent or the Lenders, or Agent or the Lenders exercise their rights
of setoff, and such payment or payments or the proceeds of such setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such recovery, the Obligation or part
thereof originally intended to be satisfied, and all rights and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred.
11.10 SEVERABILITY. In case any provision in or obligation under this
Agreement or the other Loan Documents shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby, PROVIDED,
HOWEVER, that if the rates of interest or any other amount payable hereunder, or
the collectibility thereof, are declared to be or become invalid, illegal or
unenforceable, Lenders' obligations to make Advances shall not be enforceable.
11.11 HEADINGS. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
11.12 GOVERNING LAW; WAIVER. THIS AGREEMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA.
11.13 LIMITATION OF LIABILITY. To the extent permitted by applicable law,
no claim may be made by Borrower, any Lender or any other Person against Agent
or any Lender, or the affiliates, directors, officers, employees, attorneys or
agents of any of them, for any special, indirect, consequential or punitive
damages in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated by this
Agreement, or any act, omission or event occurring in connection therewith; and
Borrower and each Lender hereby waive, release and agree not to xxx upon any
claim for any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.
11.14 SUCCESSORS AND ASSIGNS. This Agreement and the other Loan Documents
shall be binding upon the parties hereto and their respective successors and
assigns and shall inure to the benefit of the parties hereto and the successors
and permitted assigns of Agent and Lenders. The terms and provisions of this
Agreement shall inure to the benefit of any permitted assignee or transferee of
the Advances and the Pro Rata Shares of the Commitment of the Lenders under this
Agreement, and in the event of such transfer or assignment, the rights and
privileges herein conferred upon Agent and Lenders shall automatically extend to
and be vested in such transferee or assignee, all subject to the terms and
conditions hereof. Borrower's rights and interests hereunder and under the
other Loan Documents, and Borrower's duties and Obligations hereunder and under
the other Loan Documents, shall not be assigned or otherwise transferred without
the consent of all Lenders.
11.15 CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY
TRIAL. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST BORROWER WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE, AND ALL JUDICIAL PROCEEDINGS
BROUGHT BY BORROWER WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
SHALL BE, BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION HAVING
SITUS WITHIN THE BOUNDARIES OF THE FEDERAL COURT DISTRICT OF THE SOUTHERN
DISTRICT OF
CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, BORROWER ACCEPTS,
FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY,
THE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY
ANY FINAL JUDGMENT RENDERED THEREBY FROM WHICH NO APPEAL HAS BEEN TAKEN OR IS
AVAILABLE. BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ITS NOTICE
ADDRESS SPECIFIED ON THE SIGNATURE PAGES HEREOF. BORROWER, AGENT AND LENDERS
IRREVOCABLY WAIVE (A) TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, AND (B) ANY OBJECTION (INCLUDING
WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST BORROWER IN THE COURTS
OF ANY OTHER JURISDICTION.
11.16 COUNTERPARTS; EFFECTIVENESS; INCONSISTENCIES. This Agreement and
any amendments, waivers, consents or supplements hereto may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all of which, taken together, shall constitute but one and the
same instrument. This Agreement shall become effective when (i) Borrower, the
initial Lenders and Agent have duly executed and delivered signature pages of
this Agreement to each other (delivery by Borrower to Lenders and by any Lender
to Borrower and any other Lender being deemed to have been made by delivery to
Agent) and (ii) Agent has received all fees due under its separate agreement
with Borrower. Agent shall send written confirmation of the Closing Date to
Borrower and each other Lender promptly following the occurrence thereof. This
Agreement and each of the other Loan Documents shall be construed to the extent
reasonable to be consistent one with the other, but to the extent that the terms
and conditions of this Agreement are actually and directly inconsistent with the
terms and conditions of any other Loan Document, this Agreement shall govern.
11.17 PERFORMANCE OF OBLIGATIONS. Borrower agrees that Agent may, but
shall have no obligation to, make any payment or perform any act required of
Borrower under any Loan Document which Borrower has failed to make or do.
11.18 CONSTRUCTION. The parties to this Agreement acknowledge that each
party and its counsel have reviewed and revised this Agreement and that the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement or any amendments or exhibits hereto.
11.19 ENTIRE AGREEMENT. This Agreement, taken together with all of the
other Loan Documents and all certificates and other documents delivered by
Borrower to Agent, embodies the entire agreement and supersede all prior
agreements, written and oral, relating to the subject matter hereof.
11.20 ASSIGNMENTS AND PARTICIPATIONS.
(a) After first obtaining the approval of Agent and Borrower (other
than upon the occurrence and during the continuance of any Event of Default),
which approval shall not be unreasonably withheld, each Lender may assign to one
or more banks or financial institutions, all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Pro Rata Share of the Commitment and the Advances owing to it)
and the other Loan Documents; PROVIDED, HOWEVER, that (i) each such assignment
shall be of a constant, and not a varying, percentage of the assigning Lender's
rights and obligations under this Agreement and the other Loan Documents, and
such percentage of the assigning Lender's rights and obligations shall be the
same percentage with respect to both such Lender's Pro Rata Share of the
Commitment and Advances, (ii) the aggregate amount of the Pro Rata Share of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Assumption with
respect to such assignment) shall in no event be less than Ten Million Dollars
($10,000,000) and shall be an integral multiple of One Million Dollars
($1,000,000), (iii) the parties to each such assignment shall execute and
deliver to Agent, for its approval and acceptance, an Assignment and Assumption,
and (iv) Agent shall receive from the assignor a processing fee of Three
Thousand Dollars ($3,000). Without restricting the right of Borrower or Agent
to reasonably object to any bank or financial institution becoming an assignee
of an interest of a Lender hereunder, each proposed assignee must be an existing
Lender or a bank or financial institution which (A) has (or, in the case of a
bank which is a subsidiary, such bank's parent has) a rating of its senior
unsecured debt obligations of not less than Baa-2 by Xxxxx'x Investors Service,
Inc. or a comparable rating by a rating agency acceptable to Agent and (B) has
total assets in excess of Ten Billion Dollars ($10,000,000,000). Unless Agent
or Borrower gives written notice to the assigning Lender that it objects to the
proposed assignment (together with a written explanation of the reasons behind
such objection) within ten (10) Business Days following receipt of the assigning
Lender's written request for approval of the proposed assignment, Agent or
Borrower, as the case may be, shall be deemed to have approved such assignment.
Upon such execution, delivery, approval and acceptance, and upon the effective
date specified in the applicable Assignment and Assumption, (X) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Assumption, have the rights and obligations of a Lender hereunder, and (Y) the
assigning Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Assumption,
relinquish its rights and be released from its obligations under this Agreement.
(b) By executing and delivering an Assignment and Assumption, the
assigning Lender thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Assumption, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability,
genuineness, sufficiency or value of this Agreement or any other Loan Document
or any other instrument or document furnished pursuant hereto; (ii) such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the REIT or Borrower
or the performance or observance by the REIT or Borrower of any of their
respective obligations under any Loan Document or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in ARTICLE 4 or delivered pursuant to ARTICLE 5 to the
date of such assignment and such other Loan Documents and other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Assumption; (iv) such assignee will,
independently and without reliance upon Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee appoints and
authorizes Agent to take such action as Agent on its behalf and to exercise such
powers under this Agreement and the other Loan Documents as are delegated to
Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto; and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Lender.
(c) Agent shall maintain, at its address referred to on the
counterpart signature pages hereof, a copy of each Assignment and Assumption
delivered to and accepted by it and shall record in the Loan Account the names
and addresses of each Lender and the Pro Rata Share of the Commitment of, and
principal amount of the Advances owing to, such Lender from time to time.
Borrower, Agent and Lenders may treat each Person whose name is recorded in the
Loan Account as a Lender hereunder for all purposes of this Agreement.
(d) Upon its receipt of an Assignment and Assumption executed by an
assigning Lender and an assignee approved by Agent and Borrower as provided in
SECTION 11.20(a), Agent
shall, if such Assignment and Assumption has been properly completed and is in
substantially the form of EXHIBIT A, (i) accept such Assignment and Assumption,
(ii) record the information contained therein in the Loan Account, and
(iii) give prompt notice thereof to Borrower. Upon request, Borrower will
execute and deliver to Agent an appropriate replacement promissory note or
replacement promissory notes in favor of each assignee (and assignor, if such
assignor is retaining a portion of its Pro Rata Share of the Commitment and
Advances) reflecting such assignee's (and assignor's) Pro Rata Share of the
Commitment. Upon execution and delivery of such replacement promissory note(s)
the original promissory note or notes evidencing all or a portion of the
Pro Rata Share of the Commitment and Advances being assigned shall be canceled
and returned to Borrower.
(e) Each Lender may sell participations to one or more banks or other
financial institutions in or to all or a portion of its rights and obligations
under this Agreement without the consent of any other party to this Agreement
(including, without limitation, all or a portion of its Pro Rata Share of the
Commitment and the Advances owing to it) and the other Loan Documents; PROVIDED,
HOWEVER, that (i) such Lender's obligations under this Agreement (including,
without limitation, its obligation to fund its Pro Rata Share of the Commitment
to Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the participating banks or other financial institutions shall
not be a Lender hereunder for any purpose, (iv) Borrower, 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
with regard to any and all payments to be made under this Agreement, (v) the
participation interest shall be expressed as a percentage of the granting
Lender's Pro Rata Share of the Commitment as it then exists and shall not
restrict an increase in the Commitment, or in the granting Lender's Pro Rata
Share of the Commitment, so long as the amount of the participation interest is
not affected thereby and (vi) the consent of the holder of such participation
interest shall not be required for amendments or waivers of provisions of the
Loan Documents and
the holder of any such participation shall not be entitled to voting rights
under their participation agreement except for voting rights with respect to
(A) extensions of the Maturity Date; or (B) decreases in the interest rates or
fees described in this Agreement.
(f) Borrower will use reasonable efforts to cooperate with Agent and
Lenders in connection with the assignment of interests under this Agreement or
the sale of participations herein.
(g) Anything in this Agreement to the contrary notwithstanding, and
without the need to comply with any of the formal or procedural requirements of
this Agreement, including SECTION 11.20, any Lender may at any time and from
time to time pledge and assign all or any portion of its rights under all or any
of the Loan Documents to a Federal Reserve Bank; PROVIDED that no such pledge or
assignment shall release such Lender from its obligations thereunder. To
facilitate any such pledge or assignment, Agent shall, at the request of such
Lender, enter into a letter agreement with the Federal Reserve Bank in
substantially the form of the exhibit to Appendix C to the Federal Reserve Bank
of New York Operating Circular No. 12.
(h) Anything in this Agreement to the contrary notwithstanding, any
Lender may assign all or any portion of its rights and obligations under this
Agreement to another branch or Affiliate of such Lender without first obtaining
the approval of Agent and Borrower, PROVIDED that (i) at the time of such
assignment such Lender is not a Defaulting Lender, (ii) such Lender gives Agent
and Borrower at least fifteen (15) days' prior written notice of any such
assignment, (iii) the parties to each such assignment execute and deliver to
Agent an Assignment and Assumption, and (iv) Agent receives from assignor a
processing fee of Three Thousand Dollars ($3,000).
(i) No assignee of any rights and obligations under this Agreement
shall be permitted to subassign such rights and obligations.
(j) No Lender shall be permitted to assign or sell all or any portion
of its rights and obligations under this Agreement to Borrower or any Affiliate
of Borrower.
(k) The dissemination or disclosure by any Lender to any prospective
assignee or participant of any confidential information obtained by Agent or the
Lenders pursuant to this Agreement or in connection with the Advances is subject
to the terms of SECTION 5.3.
(l) Xxxxx Fargo agrees that, so long as Xxxxx Fargo is the Agent
under this Agreement, it will not assign all or any portion of its rights and
obligations under this Agreement if, after giving effect to such assignment or
sale, Xxxxx
Fargo's Pro Rata Share of the Commitment would be less than that of
any other Lender.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date set forth above.
BORROWER: ARDEN REALTY LIMITED
PARTNERSHIP, a Maryland limited
partnership
By: ARDEN REALTY, INC.,
a Maryland corporation,
Its sole general partner
By ______________________
Xxxxx Xxxxx
Its Chief Financial Officer
ADDRESS FOR NOTICE AND DELIVERY:
Arden Realty Limited Partnership
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Agent
By _____________________________
Xxxxxx Xxxxx
Its Vice President
ADDRESS FOR NOTICE AND DELIVERY:
Xxxxx Fargo Bank, N.A.
Real Estate Group
MAC 2064-129
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
LENDERS: XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
By _____________________________
Xxxxxx Xxxxx
Its Vice President
ADDRESS FOR NOTICE AND DELIVERY:
Xxxxx Fargo Bank, N.A.
Real Estate Group
MAC 2064-129
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
LIBOR OFFICE:
Real Estate Group Disbursement Center
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
COMMERZBANK AG,
LOS ANGELES BRANCH
By _____________________________
Its _________________________
By _____________________________
Its _________________________
ADDRESS FOR NOTICE AND DELIVERY:
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
LIBOR OFFICE:
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
DRESDNER BANK AG,
New York Branch and
Grand Cayman Branch
By _____________________________
Its _________________________
By _____________________________
Its _________________________
ADDRESS FOR NOTICE AND DELIVERY:
Dresdner Bank AG
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
LIBOR OFFICE:
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
KEYBANK NATIONAL ASSOCIATION
By _____________________________
Its _________________________
ADDRESS FOR NOTICE AND DELIVERY:
KeyBank National Association
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
LIBOR OFFICE:
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
MANUFACTURERS BANK
By _____________________________
Its _________________________
ADDRESS FOR NOTICE AND DELIVERY:
Manufacturers Bank
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
LIBOR OFFICE:
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxx-Xxx
Tel: (000) 000-0000
Fax: (000) 000-0000
THE FIRST NATIONAL BANK OF CHICAGO
By _____________________________
Its _________________________
ADDRESS FOR NOTICE AND DELIVERY:
The First National Bank of Chicago
One First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xx. Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
LIBOR OFFICE:
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
Xx. Xxx Xxxxxx
Tel: (000) 000-0000 or 000-0000
Fax: (000) 000-0000
PNC BANK, NATIONAL ASSOCIATION
By _____________________________
Its _________________________
ADDRESS FOR NOTICE AND DELIVERY:
PNC Bank, National Association
Real Estate Banking, 00xx Xxxxx
XX-XXXX-00-0
Xxx XXX Xxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
LIBOR OFFICE:
000 Xxxxx Xxxxxx, XX-XXXX-00-0
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
CHASE MANHATTAN BANK,
a New York banking corporation,
as a Lender and as a Co-Agent
By _____________________________
Its _________________________
By _____________________________
Its _________________________
ADDRESS FOR NOTICE AND DELIVERY:
Chase Manhattan Bank
c/o Chase National Corporate
Services Inc.
000 Xxxxx Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxx X. XxXxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
LIBOR OFFICE:
Chase Manhattan Bank
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
XXXXXX BROTHERS REALTY CORPORATION,
a Delaware corporation,
as a Lender and as a Co-Agent
By _____________________________
Its _________________________
ADDRESS FOR NOTICE AND DELIVERY:
Xxxxxx Brothers Realty Corporation
3 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
LIBOR OFFICE:
Xxxxxx Brothers Realty Corporation
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
SIGNET BANK, a Virginia corporation
By _____________________________
Its _________________________
By _____________________________
Its _________________________
ADDRESS FOR NOTICE AND DELIVERY:
Signet Bank
0000 Xxxxxxxx Xxxx
Xxxxx Xxxxxx, XX 00000
Attention: Mr. Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
LIBOR OFFICE:
Signet Bank
0000 Xxxxxxxx Xxxx
Xxxxx Xxxxxx, XX 00000
Attention: Ms. Xxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
BANKERS TRUST COMPANY,
a New York banking corporation
By _____________________________
Its _________________________
By _____________________________
Its _________________________
ADDRESS FOR NOTICE AND DELIVERY:
Bankers Trust Company
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx XxXxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
LIBOR OFFICE:
Bankers Trust Company
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
FLEET NATIONAL BANK
By _____________________________
Its _________________________
ADDRESS FOR NOTICE AND DELIVERY:
Fleet National Bank
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 000 - XXX0000
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
LIBOR OFFICE:
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
