EXECUTION COPY
================================================================================
PUBLISHED CUSIP NUMBER: [_______________________]
CONSTRUCTION FACILITY
CREDIT AGREEMENT
Dated as of March 7, 2006
among
COUSINS PROPERTIES INCORPORATED
as the Borrower,
THE CONSOLIDATED ENTITIES OF THE BORROWER
FROM TIME TO TIME PARTY HERETO
as the Guarantors
BANK OF AMERICA, N.A.,
as Administrative Agent,
BANC OF AMERICA SECURITIES LLC
as Sole Lead Arranger and Sole Book Manager,
COMMERZBANK AG, NEW YORK BRANCH,
as Syndication Agent,
PNC BANK, NATIONAL ASSOCIATION AND XXXXX FARGO BANK,
as Documentation Agents,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Managing Agent
and
THE OTHER LENDERS PARTY HERETO
================================================================================
TABLE OF CONTENTS
Section Page
------- ----
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS..................................... 1
1.01 Defined Terms....................................................... 1
1.02 Other Interpretive Provisions....................................... 26
1.03 Accounting Terms.................................................... 27
1.04 Rounding............................................................ 27
1.05 References to Agreements and Laws................................... 28
1.06 Times of Day........................................................ 28
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS............................... 28
2.01 Loans............................................................... 28
2.02 Borrowings, Conversions and Continuations of Loans.................. 28
2.03 Intentionally Omitted............................................... 30
2.04 Intentionally Omitted............................................... 30
2.05 Prepayments......................................................... 30
2.06 Termination or Reduction of Commitments............................. 31
2.07 Repayment of Loans.................................................. 32
2.08 Interest............................................................ 32
2.09 Fees................................................................ 33
2.10 Computation of Interest and Fees.................................... 33
2.11 Evidence of Debt.................................................... 34
2.12 Payments Generally.................................................. 34
2.13 Sharing of Payments................................................. 36
2.14 Maturity Date....................................................... 36
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY............................. 37
3.01 Taxes............................................................... 37
3.02 Illegality.......................................................... 38
3.03 Inability to Determine Rates........................................ 38
3.04 Increased Cost; Reduced Return; Capital Adequacy; Reserves.......... 39
3.05 Compensation for Losses............................................. 39
3.06 Matters Applicable to all Requests for Compensation................. 40
3.07 Survival............................................................ 40
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS........................... 41
4.01 Conditions of Initial Borrowing..................................... 41
4.02 Conditions to all Borrowings........................................ 43
ARTICLE V REPRESENTATIONS AND WARRANTIES....................................... 43
5.01 Existence, Qualification and Power; Compliance with Laws............ 44
5.02 Authorization; No Contravention..................................... 44
5.03 Governmental Authorization; Other Consents.......................... 44
5.04 Binding Effect...................................................... 44
i
5.05 Financial Statements; No Material Adverse Effect.................... 44
5.06 Litigation.......................................................... 45
5.07 No Default.......................................................... 45
5.08 Ownership of Property; Liens........................................ 46
5.09 Environmental Compliance............................................ 46
5.10 Insurance........................................................... 46
5.11 Taxes............................................................... 46
5.12 ERISA Compliance.................................................... 46
5.13 Consolidated Entities; REIT Status.................................. 47
5.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act......................................................... 47
5.15 Disclosure.......................................................... 47
5.16 Compliance with Laws................................................ 48
5.17 Intellectual Property; Licenses, Etc................................ 48
5.18 Compliance with Zoning and Other Requirements....................... 48
5.19 Plans and Specifications............................................ 49
5.20 Utilities........................................................... 49
5.21 Taxpayer Identification Number...................................... 49
ARTICLE VI AFFIRMATIVE COVENANTS............................................... 49
6.01 Financial Statements................................................ 49
6.02 Certificates; Other Information..................................... 50
6.03 Notices............................................................. 52
6.04 Payment of Obligations.............................................. 52
6.05 Preservation of Existence, Etc...................................... 53
6.06 Maintenance of Properties........................................... 53
6.07 Maintenance of Insurance............................................ 53
6.08 Compliance with Laws................................................ 53
6.09 Books and Records................................................... 54
6.10 Inspection Rights................................................... 54
6.11 Use of Proceeds; Incurrence of Borrowings........................... 54
6.12 Additional Guarantors............................................... 54
ARTICLE VII NEGATIVE COVENANTS................................................. 55
7.01 Liens............................................................... 55
7.02 Investments......................................................... 56
7.03 Indebtedness........................................................ 56
7.04 Fundamental Changes................................................. 57
7.05 Dispositions........................................................ 57
7.06 Restricted Payments................................................. 58
7.07 Intentionally Omitted............................................... 59
7.08 Transactions with Affiliates........................................ 59
7.09 Intentionally Omitted............................................... 59
7.10 Use of Proceeds..................................................... 59
7.11 Financial Covenants................................................. 59
7.12 Prepayment of Other Indebtedness, Etc............................... 60
7.13 Organization Documents; Subsidiaries................................ 60
ii
7.14 Covenants in Revolving Credit Agreement Incorporated by Reference... 60
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES.................................... 60
8.01 Events of Default................................................... 60
8.02 Remedies Upon Event of Default...................................... 63
8.03 Application of Funds................................................ 64
ARTICLE IX ADMINISTRATIVE AGENT................................................ 64
9.01 Appointment and Authorization of Administrative Agent............... 64
9.02 Delegation of Duties................................................ 65
9.03 Liability of Administrative Agent................................... 65
9.04 Reliance by Administrative Agent.................................... 65
9.05 Notice of Default................................................... 66
9.06 Credit Decision; Disclosure of Information by Administrative Agent.. 66
9.07 Indemnification of Administrative Agent............................. 67
9.08 Administrative Agent in its Individual Capacity..................... 67
9.09 Successor Administrative Agent...................................... 67
9.10 Administrative Agent May File Proofs of Claim....................... 68
9.11 Guaranty Matters.................................................... 69
9.12 Other Agents; Arrangers and Managers................................ 69
ARTICLE X MISCELLANEOUS........................................................ 70
10.01 Amendments, Etc..................................................... 70
10.02 Notices and Other Communications; Facsimile Copies.................. 71
10.03 No Waiver; Cumulative Remedies...................................... 73
10.04 Attorney Costs, Expenses and Taxes.................................. 73
10.05 Indemnification by the Borrower..................................... 73
10.06 Payments Set Aside.................................................. 74
10.07 Successors and Assigns.............................................. 74
10.08 Confidentiality..................................................... 78
10.09 Set-off............................................................. 79
10.10 Interest Rate Limitation............................................ 80
10.11 Counterparts........................................................ 80
10.12 Integration......................................................... 80
10.13 Survival of Representations and Warranties.......................... 80
10.14 Severability........................................................ 81
10.15 Tax Forms........................................................... 81
10.16 Replacement of Lenders.............................................. 83
10.17 Governing Law....................................................... 83
10.18 Waiver of Right to Trial by Jury.................................... 83
10.19 No Advisory or Fiduciary Responsibility............................. 84
10.20 USA PATRIOT Act Notice.............................................. 85
10.21 Attorneys' Fees..................................................... 85
ARTICLE XI GUARANTY............................................................ 85
11.01 The Guaranty........................................................ 85
11.02 Obligations Unconditional........................................... 86
iii
11.03 Reinstatement....................................................... 87
11.04 Certain Additional Waivers.......................................... 87
11.05 Remedies............................................................ 87
11.06 Rights of Contribution.............................................. 87
11.07 Guarantee of Payment; Continuing Guarantee.......................... 88
iv
SCHEDULES
1.1 Investment Entities
2.01 Commitments and Pro Rata Shares
5.05 Supplement to Interim Financial Statements
5.06 Litigation
5.09 Environmental Matters
5.12 ERISA Matters
5.13 Consolidated Entities and Other Equity Investments
5.17 Intellectual Property Matters
10.02 Administrative Agent's Office, Certain Addresses for Notices
10.07 Processing and Recordation Fees
EXHIBITS
A Form of Loan Notice
B Form of Note
C Form of Compliance Certificate
D Form of Assignment and Assumption
E Form of Joinder Agreement
v
CONSTRUCTION FACILITY CREDIT AGREEMENT
This CONSTRUCTION FACILITY CREDIT AGREEMENT ("Agreement") is entered into
as of March 7, 2006, among COUSINS PROPERTIES INCORPORATED, a Georgia
corporation (the "Borrower"), the Guarantors (as defined herein), each lender
from time to time party hereto (collectively, the "Lenders" and individually, a
"Lender"), BANK OF AMERICA, N.A., as Administrative Agent, BANC OF AMERICA
SECURITIES LLC, as Sole Lead Arranger and Sole Book Manager, COMMERZBANK AG, NEW
YORK BRANCH, as Syndication Agent, PNC BANK, NATIONAL ASSOCIATION and XXXXX
FARGO BANK, as Documentation Agents, WACHOVIA BANK, NATIONAL ASSOCIATION, as
Managing Agent.
The Borrower has requested that the Lenders provide a revolving credit
facility for the purpose of providing a portion of the financing with respect to
the costs and expenses associated with the construction of the Terminus Project
(as defined herein), and the Lenders are willing to do so on the terms and
conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Adjusted Consolidated EBITDA" means, for any period, an amount equal to
(a) Consolidated EBITDA for such period, less (b) a deemed capital expenditures
reserve deduction equal to, on an annual basis, (i) $0.35 per rentable square
foot of all Income Producing Assets (or any portion thereof) which constitutes
office space; (ii) $0.15 per rentable square foot of all Income Producing Assets
(or any portion thereof) which constitutes retail space and (iii) $0.15 per
rentable square foot of all Income Producing Assets (or any portion thereof)
which constitutes industrial space.
"Adjusted Unencumbered EBITDA" means, for any period, that portion of
Adjusted Consolidated EBITDA for such period generated by Unencumbered
Properties (following deductions for deemed capital expenditure reserves
applicable to such Unencumbered Properties as set forth in the definition of
Adjusted Consolidated EBITDA).
"Administrative Agent" or "Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
1
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto. Without limiting the generality
of the foregoing, a Person shall be deemed to be Controlled by another Person if
such other Person possesses, directly or indirectly, power to vote 10% or more
of the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.
"Agent-Related Persons" means the Administrative Agent, together with its
Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" means the aggregate Commitments of all the Lenders.
The Aggregate Commitments as of the Closing Date shall be $100,000,000.
"Agreement" means this Construction Facility Credit Agreement.
"Applicable Capitalization Rate" means (i) 8.50% for Income Producing
Assets primarily constituting office space; (ii) 8.25% for Income Producing
Assets primarily constituting retail space and (iii) 8.00% for Income Producing
Assets primarily constituting industrial space.
"Applicable Rate" means, from time to time, for the purposes of calculating
(a) the interest rate applicable to Eurodollar Rate Loans for the purposes of
Section 2.08 or (b) the interest rate applicable to Base Rate Loans for the
purposes of Section 2.08, the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 6.02(b):
Applicable Rate
Pricing Level Consolidated Leverage Ratio Eurodollar Rate Loans Base Rate Loans
------------- --------------------------- --------------------- ---------------
1 > or = 0.35:1 0.80% 0%
2 > 0.35:1 but < or = 0.45:1 0.90% 0%
3 > 0.45:1 but < or = 0.50:1 1.00% 0%
4 > 0.50:1 but < or = 0.55:1 1.15% 0%
5 > 0.55:1 1.30% 0%
Any increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant to
Section 6.02(b); provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then
2
Pricing Level 5 shall apply as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered (until such time
as such delinquent Compliance Certificate is delivered). The Applicable Rate on
the Closing Date shall be Pricing Level 1.
"Approved Fund" has the meaning specified in Section 10.07(h).
"Arranger" means a collective reference to Banc of America Securities LLC
in its capacity as sole lead arranger and sole book manager.
"Assignee Group" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit D.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease. Notwithstanding the foregoing,
Attributable Indebtedness shall not include the Attributable Indebtedness of
Investment Entities except to the extent any other Unconsolidated Entity or
Consolidated Entity is liable for the same (disregarding any liability with
respect to customary recourse carve-outs applicable to any non-recourse secured
Attributable Indebtedness and disregarding any general partnership liability of
the Designated Entities).
"Audited Financial Statements" means the audited consolidated balance
sheets of the Borrower and the Consolidated Entities for the calendar year ended
December 31, 2004, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such calendar year of such
Persons, including the notes thereto.
"Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination
of the Commitment of each Lender to make Loans pursuant to the terms hereof.
"Bank of America" means Bank of America, N.A. and its successors.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by the
Administrative Agent as its "prime rate." The "prime rate"
3
is a rate set by the Administrative Agent based upon various factors including
the Administrative Agent's costs and desired return, general economic conditions
and other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate. Any change in such
rate announced by the Administrative Agent shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrower Materials" has the meaning specified in Section 6.02.
"Borrowing" means a borrowing consisting of simultaneous Loans of the same
Type and, in the case of Eurodollar Rate Loans, having the same Interest Period
made by each of the Lenders pursuant to Section 2.01.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"Capital Lease Obligations" means, as to any Person, the obligations of
such Person under a lease that are required to be classified and accounted for
as capital lease obligations under GAAP and, for purposes of this definition,
the amount of such obligations at any date shall be the capitalized amount of
such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means any and all shares, interests or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent
equity ownership interests in a Person that is not a corporation, including,
without limitation, any and all member or other equivalent interests in any
limited liability company or partnership interests or other equivalents in any
kind of partnership, and any and all warrants or options to purchase any of the
foregoing.
"Cash Equivalents" means, as at any date, (a) securities issued or directly
and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than ninety
(90) days from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than ninety (90) days from the date of acquisition, (c) commercial
paper and variable or fixed rate notes issued by any Approved Bank (or by the
parent company thereof) or any variable rate notes issued by, or guaranteed by,
any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P
or P-1 (or the equivalent thereof) or better by Moody's and maturing within
ninety (90) days of the date of acquisition and (d) Investments, classified in
accordance with GAAP as current assets, in money market
4
investment programs registered under the Investment Company Act of 1940, as
amended, which are administered by reputable financial institutions having
capital of at least $500,000,000 and the portfolios of which are limited to
Investments of the character described in the foregoing subdivisions (a) through
(d).
"Change of Control" means, with respect to any Person, an event or series
of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire which are
granted by such Person (such right, an "option right"), whether such right
is exercisable immediately or only after the passage of time), directly or
indirectly, of 25% (or, in the case of Xxx Xxxxxxx, 40%) or more of the
equity securities of such Person entitled to vote for members of the board
of directors or equivalent governing body of such Person on a fully-diluted
basis (and taking into account all such securities that such person or
group has the right to acquire pursuant to any option right granted by such
Person); or
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
such Person cease to be composed of individuals (i) who were members of
that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority
of that board or equivalent governing body or (iii) whose election or
nomination to that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body (excluding, in the case of both clause (ii) and
clause (iii), any individual whose initial nomination for, or assumption of
office as, a member of that board or equivalent governing body occurs as a
result of an actual or threatened solicitation of proxies or consents for
the election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by or
on behalf of the board of directors).
"Closing Date" means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.
"Code" means the Internal Revenue Code of 1986, as amended.
"Combined Parties" means the Borrower, the Consolidated Entities and the
Unconsolidated Entities.
5
"Commitment" means, as to each Lender, its obligation to make Loans to the
Borrower pursuant to Section 2.01 in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Lender's name
on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit C.
"Consolidated EBITDA" means, for any period, for the Borrower and the
Consolidated Entities on a consolidated basis, an amount equal to Consolidated
Net Income for such period plus the following to the extent deducted in
calculating such Consolidated Net Income: (a) Interest Expense for such period,
(b) the provision for federal, state, local and foreign income taxes payable by
the Borrower and the Consolidated Entities for such period, (c) the amount of
depreciation and amortization expense deducted in determining such Consolidated
Net Income, and (d) proceeds attributable to minority interests.
"Consolidated Entities" means any Person (other than an Investment Entity)
in which the Borrower owns any Capital Stock, the accounts of which Person are
consolidated with those of the Borrower in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, as of any date of
determination, the ratio of (a) Adjusted Consolidated EBITDA for the quarterly
period to (b) Fixed Charges for such period.
"Consolidated Leverage Ratio" means, as of any date of determination, the
ratio of (a) Total Debt as of such date to (b) Total Assets as of such date.
"Consolidated Net Income" means, for any period, for the Borrower and the
Consolidated Entities on a consolidated basis determined in accordance with
GAAP, the net income of the Borrower and the Consolidated Entities (excluding
the effect of any extraordinary gains or losses or other non-cash gains or
losses outside the ordinary course of business or gains or losses on sales of
investment property (including any impairment charges, whether or not incurred
in connection with the sale of depreciated investment property or otherwise))
for that period; provided, that net income shall not, in any case, include any
income allocable to Capital Stock interests of any Loan Party (other than the
Borrower) or any Affiliate of the Borrower or any other Loan Party (whether by
virtue of the organizational documents of such entity or contractual
arrangement) held by third parties other than the Borrower and the Consolidated
Entities.
"Consolidated Parties" means a collective reference to the Borrower and the
Consolidated Entities, and "Consolidated Party" means any one of them.
"Consolidated Unencumbered Interest Coverage Ratio" means, as of any date
of determination, the ratio of (a) Adjusted Unencumbered EBITDA for the calendar
quarter ending on such date to (b) Interest Expense for Unsecured Debt for such
period.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
6
"Control" has the meaning specified in the definition of "Affiliate."
"CSC" means CSC Associates, L.P., a Georgia limited partnership, its
successors and assigns.
"CSC Note" means that certain promissory note in the original principal
amount of $150,000,000 issued by CSC and payable to Bank of America, N.A. as
Master Servicer for LaSalle Bank National Association, as Trustee for the
registered holders of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass Through Certificates, Series 2002-2, and any and all derivative or
replacement notes related thereto or refinancing the principal balance thereof
up to an aggregate principal amount of $175,000,000.
"Daily Undrawn Amount" means, for each day during the term hereof, an
amount equal to (a) the Aggregate Commitments existing as of the end of such
day, less (b) the aggregate Outstanding Amount as of the end of such day.
"Daily Unused Fee" means, for each day during the term hereof, an amount
equal to (a) the Daily Undrawn Amount for such day, multiplied by (b) a per diem
percentage rate (for a 360 day year) based on an annum percentage rate
calculated in accordance with the following:
Daily Unused Percentage Applicable per annum %
----------------------- ----------------------
> 50.0% 0.200%
< or = 50.0% 0.150%
"Daily Unused Percentage" means, for any day during the term hereof, a
percentage equal to (a) the Daily Undrawn Amount as of the end of such day,
divided by (b) the Aggregate Commitments as of the end of such day.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus (b)
the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in all
cases to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans required to be funded by it hereunder within one Business
Day of the date required to be funded by it hereunder, (b) has otherwise failed
to pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of
7
the date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Designated Entities" means a collective reference to (a) Wildwood
Associates, (b) Temco Associates or (c) any general partner of a Texas limited
partnership which would otherwise be included in the applicable calculation (so
long as in the case of clause (c) the general partner is not the Borrower);
provided, that (i) inclusion of Wildwood Associates and Temco Associates as
"Designated Entities" hereunder shall be subject to verification from time to
time by the Administrative Agent that the JV partners with respect to such
entities are liable for fifty percent (50.0%) of the total liabilities of such
entities and (ii) inclusion of any Texas limited partnerships as "Designated
Entities" hereunder shall be subject to verification by the Administrative Agent
that neither the Borrower nor any other Consolidated Entity (that is not such
Texas limited partnership or its general partner) is liable for any of the
liabilities of such Texas limited partnership.
"Disposition" or "Dispose" means the sale, transfer or other disposition
(including any sale and leaseback transaction) of any property by any Person,
including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims
associated therewith, provided that it shall not include any lease, license or
other occupancy agreement.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary that is organized under the laws
of any political subdivision of the United States.
"Eligible Assignee" has the meaning specified in Section 10.07(h).
"Eligible Costs" means, as of any date, all costs and expenses incurred by
the Borrower with respect to the construction of the Terminus Project in
accordance with GAAP (including all hard and soft costs), as of the end of the
immediately preceding month, which have been paid prior to the date of a
Borrowing or which will be paid in the month a Borrowing is made.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
8
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"Eurodollar Rate" means for any Interest Period with respect to a
Eurodollar Rate Loan, a rate per annum determined by Agent pursuant to the
following formula:
Eurodollar Rate = Eurodollar Base Rate
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period (rounded upwards, as
necessary, to the nearest 1/100 of 1%) the rate per annum equal to the British
Bankers Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
Agent from time to time) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for any reason,
then the "Eurodollar Base Rate" for such Interest Period (rounded upwards, as
necessary, to the nearest 1/100 of 1%) shall be the rate per annum determined by
Agent to be the rate at which deposits in Dollars for delivery on the first day
of such Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by Bank of America and
with a term equivalent to such Interest Period would be offered by Bank of
America's London Branch (or, if a quote is not available from Bank of America's
London Branch, then another major bank's London branch, as reasonably selected
by the Administrative Agent) to major banks in the London interbank eurodollar
market at their request at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period.
9
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System of the United States for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"). The Eurodollar Rate for each outstanding Eurodollar
Rate Loan shall be adjusted automatically as of the effective date of any change
in the Eurodollar Reserve Percentage.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based on
the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Extended Maturity Date" has the meaning specified in Section 2.14(b).
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means the letter agreement, dated January 10, 2006, among the
Borrower, the Administrative Agent and the Arranger.
"Fixed Charges" means, in the aggregate for the Combined Parties and for
the applicable period of calculation, the sum of (a) Interest Expense of the
Combined Parties, plus (b) the principal component of all payments made in
respect of Capital Lease Obligations, plus (c) any payments required to be made
(whether or not actually made) in respect of ground rental obligations under
ground leases, plus (d) regularly scheduled required principal payments on
Indebtedness for Money Borrowed (excluding any scheduled balloon, bullet, or
similar principal payment which repays such Indebtedness for Money Borrowed in
full and excluding payments made by CSC under the CSC Note) plus (e) rentals
payable under leases of real property during such period to the extent not
covered in clause (b), plus (f) any dividends paid or payable by Borrower or any
of its Consolidated Entities in respect of any class of preferred capital stock;
provided, however, that in calculating Fixed Charges of each Consolidated Entity
and Unconsolidated Entity, the amount of the items described in clauses (a),
(b), (c), (d), (e) and (f) above of such Consolidated Entity shall be reduced by
the share allocable to interests held by Persons other than the Borrower or
other Consolidated Entities, and as to such Unconsolidated Entity shall be
multiplied by the percentage of the Borrower's direct and indirect ownership
interest in such Unconsolidated Entity (except to the extent the Borrower or the
applicable
10
Consolidated Entity owner of the capital stock of the applicable Unconsolidated
Entity is liable, whether contractually or otherwise, for a greater portion of
such amount (disregarding any liability with respect to customary recourse
carve-outs applicable to any nonrecourse secured Indebtedness), in which case
such higher amount shall be used in the applicable calculations (except with
respect to the Designated Entities, for which only the percentage of the
Borrower's direct or indirect ownership interest shall be used)).
"Foreign Lender" has the meaning specified in Section 10.15(a)(i).
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"Fully Satisfied" means, with respect to the Obligations as of any date,
that, as of such date, (a) all principal of and interest accrued to such date
which constitute Obligations shall have been irrevocably paid in full in cash,
(b) all fees, expenses and other amounts then due and payable which constitute
Obligations shall have been irrevocably paid in cash, and (c) the Commitments
shall have been expired or terminated in full.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"GAAP" means generally accepted accounting principles in the United States
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 such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" means, as to any Person, any (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien (other than a Permitted Lien) on any assets of such Person securing
any Indebtedness or other obligation of any other Person, whether or not such
Indebtedness or other obligation is assumed
11
by such Person. Notwithstanding the foregoing, Guarantee shall not include
completion guarantees or the endorsement of instruments. The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Guarantors" means, collectively, each of those Persons identified as a
"Guarantor" on the signature pages hereto, and each Person that subsequently
becomes a Guarantor pursuant to Section 6.12, and "Guarantor" means any one of
them.
"Guaranty" means the Guaranty made by the Guarantors in favor of the
Administrative Agent and the Lenders pursuant to Article XI hereof.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Income Producing Assets" means all real property assets of the Borrower,
any Consolidated Entity or any Unconsolidated Entity (a) which are partially or
fully income producing for financial reporting purposes on the applicable
calculation date and have been continuously partially or fully income producing
for financial reporting purposes for the calendar quarter ending immediately
preceding the calculation date, (b) for which an unconditional base building
certificate of occupancy (or its equivalent) has been issued by the applicable
Governmental Authority, and (c) as to such assets which in the immediately
preceding reporting period were classified as Non-Income Producing Assets or
constituted the Terminus Project, which either (i) are leased to tenants in
occupancy and/or to parties not yet in occupancy but which have signed leases
under which the only condition to occupancy is completion of the applicable
space, and the leases for such tenants in occupancy or to be in occupancy
represent eighty percent (80%) or more of the rentable square footage of the
applicable real property asset; or (ii) have been a Non-Income Producing Asset
or constituted the Terminus Project for a period equal to or in excess of
eighteen (18) months following the issuance of an unconditional base building
certificate of occupancy (provided, that different phases of real property
developments shall be treated as different assets for purposes of this
determination); provided, however, that "Income Producing Assets" shall not
include (A) intra or inter-entity obligations between the Borrower and any of
the Consolidated Entities or (B) the CSC Note.
"Indebtedness" means, as to any Person at a particular time, without
duplication, total liabilities of such Person as determined by GAAP, plus all of
the following, in each case to the extent not otherwise included as total
liabilities in accordance with GAAP:
(a) all Indebtedness for Money Borrowed of such Person;
12
(b) all obligations under financing leases, all Capital Lease
Obligations (including all capitalized interest under any capital leases),
all Synthetic Lease Obligations and all Off-Balance Sheet Liabilities of
such Person;
(c) all direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), bankers' acceptances,
bank guaranties, surety bonds and similar instruments;
(d) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited in
recourse;
(e) all obligations of such Person to pay the deferred purchase price
of property or services to the extent constituting indebtedness pursuant to
GAAP (other than trade accounts payable in the ordinary course of business)
and all obligations under any repurchase, take-out commitments or forward
equity commitments (other than, with respect to the calculation of the
Indebtedness of the Borrower, any Consolidated Entity or any Unconsolidated
Entity, commitments to a Consolidated Entity, an Unconsolidated Entity or
an Investment Entity);
(f) net obligations of such Person under any Swap Contract;
(g) all Monetized Guarantees of such Person in respect of any of the
foregoing;
however, for purposes of this Agreement, (i) Indebtedness shall not include (A)
shareholders' and partners' and members' equity, (B) capital stock, (C) surplus,
(D) reserves for general contingencies and other cash reserves, (E) minority
interests in Consolidated Entities, and (F) deferred income which in accordance
with GAAP would be included in determining total liabilities as shown on the
liability side of a balance sheet of such Person and (ii) Indebtedness, as
calculated for the Borrower or any Loan Party shall not include Indebtedness of
Investment Entities, except, for clarification purposes, to the extent any other
Unconsolidated Entity or Consolidated Entity is liable for the same
(disregarding any liability with respect to customary recourse carve-outs
applicable to any nonrecourse secured Indebtedness and disregarding any general
partnership liability of the Designated Entities).
The amount of any net obligation under any Swap Contract on any date shall be
deemed to be the Swap Termination Value thereof as of such date. The amount of
any capital lease obligation or Synthetic Lease Obligation as of any date shall
be deemed to be the amount of Attributable Indebtedness in respect thereof as of
such date.
For purposes of clarification, notwithstanding any language to the contrary
contained in the foregoing, there shall be no double-counting of Indebtedness
(for example, in the case of a guaranty or letter of credit supporting other
Indebtedness).
"Indebtedness for Money Borrowed" means, with respect to any Person,
without duplication (a) all money borrowed by such Person and Indebtedness of
such Person represented
13
by notes payable by such Person and drafts accepted representing extensions of
credit to such Person, (b) all Indebtedness of such Person evidenced by bonds,
debentures, notes, or other similar instruments, (c) all Indebtedness of such
Person upon which interest charges are customarily paid, (d) all Indebtedness of
such Person issued or assumed as full or partial payment for property or
services (other than accrued employee compensation), whether or not any such
notes, drafts, obligations or Indebtedness would otherwise represent
"Indebtedness for Money Borrowed" and (e) all capitalized interest under any
capital leases and the principal balance outstanding with respect to any
Off-Balance Sheet Liabilities where such transaction is considered borrowed
money indebtedness for tax purposes but is classified as an operating lease in
accordance with GAAP. For purposes of this definition, (i) interest which is
accrued but not paid on the original due date or within any applicable cure or
grace period as provided by the underlying contract for such interest shall be
deemed Indebtedness for Money Borrowed and (ii) trade account payables arising
in the ordinary course of business and not delinquent by more than ninety (90)
days shall not be deemed Indebtedness for Money Borrowed. Indebtedness for Money
Borrowed with respect to the Borrower, the Consolidated Entities and/or the
Unconsolidated Entities shall not include any obligations of Investment Entities
except, for clarification purposes, to the extent any other Unconsolidated
Entity or Consolidated Entity is liable for the same (disregarding any liability
with respect to customary recourse carve-outs applicable to any nonrecourse
secured Indebtedness and disregarding any general partnership liability of the
Designated Entities).
"Indemnified Liabilities" has the meaning specified in Section 10.05.
"Indemnitees" has the meaning specified in Section 10.05.
"Initial Maturity Date" has the meaning specified in Section 2.14(a).
"Interest Capitalized" means, in respect of any period, interest
capitalized by the Borrower and its Consolidated Entities in such period
calculated in accordance with GAAP plus to the extent not already included
herein the Borrower's pro rata share of the interest capitalized of its
Unconsolidated Entities; provided, however, that Interest Capitalized shall not
include "interest capitalized" by CSC in respect of the CSC Note.
"Interest Expense" means, in respect of any period, an amount equal to the
sum of (a) the interest payable during such period with respect to Indebtedness
for Money Borrowed of the Borrower and its Consolidated Entities (and, when
specified in the applicable covenant, a pro rata share of the interest payable
for the Unconsolidated Entities), and (b) the interest component of capitalized
lease obligations of the Borrower and the Consolidated Entities, less any
Interest Capitalized; provided, however, that Interest Expense shall not include
"interest expense" of CSC in respect of the CSC Note.
"Interest Expense for Unsecured Debt" means for any period, Interest
Expense with respect to Unsecured Debt of the Borrower and the Consolidated
Entities.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates
14
that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate Loan, the fifth
(5th) day of each calendar month and the Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Loan Notice; provided
that:
(a) any Interest 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
Interest Period shall end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period;
(c) no Interest Period shall extend beyond the Maturity Date; and
(d) the Borrower may, in addition to the periods set forth above,
request and receive an Interest Period for a Eurodollar Rate Loan shorter
than one (1) month if and to the extent that the Administrative Agent has
pre-approved such shorter period (such approval to be withheld in the
absolute and sole discretion of the Administrative Agent) and no Lender
objects to the use of such shorter period prior to the establishment
thereof (such objections to be raised in the absolute and sole discretion
of the respective Lenders).
"Investment" means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that
constitute a business unit. For purposes of covenant compliance, the amount of
any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"Investment Entities" means, as of any date of determination, those Persons
in which the Borrower, any of the Consolidated Entities or any of the
Unconsolidated Entities directly or indirectly owns any Capital Stock which
satisfy each of the following criteria: (a) such Person is an unconsolidated
entity with respect to the Borrower for financial reporting purposes or is an
entity that is consolidated with the Borrower as a result of the pronouncement
entitled Financial Interpretation 46 "Consolidation of Variable Interest
Entities" by the Financial Accounting Standards Board on January 17, 2003 as
revised from time to time, (b) a party other than Borrower, a Consolidated
Entity or an Unconsolidated Entity has primary control over day-to-
15
day management of such Person (responsibilities under management agreements
shall not constitute control), and (c) none of the Borrower, any Consolidated
Entity or any Unconsolidated Entity is directly or contingently liable for
indebtedness of such Person, except for standard and customary recourse
carve-outs commonly included in non-recourse financings in the form of
guarantees or indemnities. For a list of the entities which are Investment
Entities of the Borrower as of the Closing Date, see Schedule 1.1 attached
hereto.
"IP Rights" has the meaning specified in Section 5.17.
"IRS" means the United States Internal Revenue Service.
"Joinder Agreement" means a Joinder Agreement substantially in the form of
Exhibit E hereto, executed and delivered by a new Guarantor in accordance with
the provisions of Section 6.12.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case to the extent from time to time in full force and effect or
otherwise having the force of law.
"Lender" has the meaning specified in the introductory paragraph hereto.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, and any financing lease having
substantially the same economic effect as any of the foregoing).
"Liquid Assets" means, as of any date of determination, the following
assets of the Combined Parties: (a) unrestricted cash and marketable securities;
and (b) notes receivable (related to loans that are not in default and otherwise
fully performing as of such date) secured by a mortgage instrument with a valid
and enforceable first priority mortgage lien on a fee or leasehold interest held
by the debtor in the applicable real estate assets, where the fair market value
of such real estate assets is greater than 110% of the amount of Indebtedness
secured thereby.
"Loan" has the meaning specified in Section 2.01.
"Loan Documents" means this Agreement, each Note, each Joinder Agreement
and the Fee Letter.
16
"Loan Notice" means a notice of (a) a Borrowing, (b) a conversion of Loans
from one Type to the other, or (c) a continuation of Eurodollar Rate Loans,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the
form of Exhibit A.
"Loan Parties" means, as of any date of determination, a collective
reference to the Borrower and each Guarantor existing as of such date.
"Material Adverse Effect" means (a) a material adverse effect upon, the
results of operations, business, properties, financial condition or business
prospects of the Combined Parties taken as a whole; (b) a material impairment of
the ability of the Loan Parties taken as a whole to perform their obligations
under any Loan Document to which it is a party; or (c) a material adverse effect
upon the legality, validity, binding effect or enforceability against any Loan
Party of any Loan Document to which it is a party.
"Maturity Date" means the later to occur of (a) the Initial Maturity Date;
and (b) to the extent maturity is extended pursuant to Section 2.14, the
Extended Maturity Date.
"Monetized Guarantee" means any Guarantee which (a) is a Guarantee of
Indebtedness for Money Borrowed; (b) is a Guarantee that has been reduced to
judgment or otherwise liquidated for a specified monetary amount; or (c) is a
Guarantee of performance of any obligation which obligation is past due beyond
any applicable grace or cure period and the liability under which can be
reasonably quantified in terms of the monetary liability of the applicable
obligor.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Non-Income Producing Asset" means any real property asset of the Borrower,
any Consolidated Entity, or any Unconsolidated Entity (other than the Terminus
Project) which does not qualify as an "Income Producing Asset" (following
application of subsection (c)(ii) and each other provision of the definition
thereof).
"Note" means a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit B.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including (a) interest and fees that accrue
under the Loan Documents after the commencement by or against any Loan Party or
any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding and (b) any Swap Contract entered
into in connection with the Loans by any Loan Party with respect to which a
Lender or any Affiliate of such Lender is a party.
17
"Off-Balance Sheet Liabilities" means, with respect to any Person as of any
date of determination thereof, without duplication and to the extent not
included as a liability on the consolidated balance sheet of such Person and its
consolidated Subsidiaries in accordance with GAAP: (a) with respect to any asset
securitization transaction (including any accounts receivable purchase facility)
(i) the unrecovered investment of purchasers or transferees of assets so
transferred and (ii) any other payment, recourse, repurchase, hold harmless,
indemnity or similar obligation of such Person or any of its Subsidiaries in
respect of assets transferred or payments made in respect thereof, other than
limited recourse provisions that are customary for transactions of such type and
that neither (x) have the effect of limiting the loss or credit risk of such
purchasers or transferees with respect to payment or performance by the obligors
of the assets so transferred nor (y) impair the characterization of the
transaction as a true sale under applicable Laws (including Debtor Relief Laws);
(b) the monetary obligations under any financing lease or so-called "synthetic,"
tax retention or off-balance sheet lease transaction which, upon the application
of any Debtor Relief Law to such Person or any of its Subsidiaries, would be
characterized as indebtedness; or (c) the monetary obligations under any sale
and leaseback transaction which does not create a liability on the consolidated
balance sheet of such Person and its Subsidiaries; or (d) any other monetary
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the consolidated balance sheet of such Person and its Subsidiaries
(for purposes of this clause (d), any transaction structured to provide tax
deductibility as interest expense of any dividend, coupon or other periodic
payment will be deemed to be the functional equivalent of a borrowing).
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Outstanding Amount" means, as of any date, the aggregate outstanding
principal amount of Loans, after giving effect to any borrowings and prepayments
or repayments of Loans occurring on such date.
"Participant" has the meaning specified in Section 10.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of
18
a multiple employer or other plan described in Section 4064(a) of ERISA, has
made contributions at any time during the immediately preceding five plan years.
"Permitted Liens" means, at any time, Liens in respect of property of the
Borrower, Consolidated Entities and/or Unconsolidated Entities constituting:
(a) Liens existing pursuant to any Loan Document;
(b) Liens (other than Liens imposed under ERISA) for taxes,
assessments (including private assessments and charges) or governmental
charges or levies not yet due or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person
in accordance with GAAP, or which have been insured over without
qualification, condition or assumption by title insurance or otherwise in a
manner acceptable to Agent in its sole discretion;
(c) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and suppliers and other Liens imposed by law or
pursuant to customary reservations or retentions of title arising in the
ordinary course of business, provided that such Liens secure only amounts
not yet due and payable or, if due and payable, no action has been taken to
enforce the same (other than filing of a Lien) and which are being
contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been established or which
have been bonded;
(d) zoning restrictions, easements, rights-of-way, restrictions and
other encumbrances affecting real property which, in the aggregate, do not
in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business
of the applicable Person;
(e) leases or subleases to third parties (including any Affiliates of
Borrower or any Combined Party);
(f) Liens securing judgments for the payment of money not constituting
an Event of Default hereunder or securing appeal or other surety bonds
related to such judgments;
(g) any interest of title of a lessor under, and Liens arising from
UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases permitted by this
Agreement; and
(h) Liens incurred in the ordinary course of business in connection
with workers compensation, unemployment insurance or other social security
obligations.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
19
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Platform" has the meaning specified in Section 6.02.
"Pro Rata Share" means, with respect to each Lender at any time, a fraction
(expressed as a percentage, carried out to the ninth decimal place), the
numerator of which is the amount of the Commitment of such Lender at such time
and the denominator of which is the amount of the Aggregate Commitments at such
time. The initial Pro Rata Share of each Lender is set forth opposite the name
of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable.
"Register" has the meaning specified in Section 10.07(c).
"REIT" means a Person qualifying for treatment as a "real estate investment
trust" under the Code.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Required Lenders" means, as of any date of determination, Lenders having
more than 50% of the Aggregate Commitments or, if the commitment of each Lender
to make Loans have been terminated pursuant to Section 8.02, Lenders holding in
the aggregate more than 50% of the Outstanding Amount; provided that the
Commitment of, and the portion of the Outstanding Amount held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination
of Required Lenders.
"Responsible Officer" means the chief executive officer, any vice chairman,
president, chief financial officer, chief investment officer, chief
administrative officer, general counsel or, solely with respect to the ability
to request advances of Loans and continuations and conversions of Loans and to
sign Compliance Certificates, any other Person who is authorized in writing by
any of the foregoing to make such requests. Any document delivered hereunder
that is signed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.
"Restricted Payment" means any cash dividend or other distribution with
respect to any Capital Stock (including preferred stock) or other equity
interest of the Borrower or any Consolidated Entity, or any payment, including
any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such Capital Stock
or other equity interest, other than any distribution or other payment solely in
Capital Stock of such Person.
"Restricted Purchase" means any payment on account of the purchase,
redemption, or other acquisition or retirement of any Capital Stock (including
preferred equity) of the Borrower.
20
"Revolving Credit Agreement" means that certain Amended and Restated Credit
Agreement dated as of March 7, 2006 among the Borrower, Bank of America, N.A.,
as administrative agent, and a syndicate of lenders.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Secured Debt" means, for any given calculation date, the total aggregate
principal amount of Indebtedness for Money Borrowed of the Borrower and the
Consolidated Entities, on a consolidated basis (and without duplication on
account of the guaranty obligations of the Borrower or any Consolidated Entity
relating to the Indebtedness for Money Borrowed of another Consolidated Entity),
that is secured in any manner by any Lien; provided, that obligations in respect
of Capitalized Leases shall not be deemed to be Secured Debt. For clarification
purposes, (i) any unsecured guaranty given by the Borrower or any Consolidated
Entity of secured obligations of a Person who is not a Consolidated Entity does
not constitute Secured Debt of the Person giving the guaranty, (ii) any
unsecured guaranty given by the Borrower or any Consolidated Entity of the
Secured Debt of another Consolidated Entity constitutes the Secured Debt of the
Person directly incurring the Secured Debt and shall not be calculated as part
of the obligations of the Person giving the guaranty, (iii) any unsecured
guaranty given by the Borrower or any Consolidated Entity of the unsecured
obligations of a Person who is not a Consolidated Entity does not constitute
Secured Debt of the Person giving the guaranty, (iv) any unsecured guaranty
given by the Borrower or any Consolidated Entity of the unsecured obligations of
another Consolidated Entity does not constitute the Secured Debt of the Person
directly incurring such obligations and shall not be calculated as part of the
obligations (secured or otherwise) of the Person giving the guaranty, (v) any
secured guaranty given by the Borrower or any Consolidated Entity of secured
obligations of a Person who is not a Consolidated Entity constitutes Secured
Debt of such Person giving the guaranty, (vi) any secured guaranty given by the
Borrower or any Consolidated Entity of the secured obligations of another
Consolidated Entity constitutes the Secured Debt of the Person directly
incurring the secured obligations and shall not be calculated as part of the
obligations (secured or otherwise) of the Person giving the guaranty, (vii) any
secured guaranty given by the Borrower or any Consolidated Entity of the
unsecured obligations of a Person who is not a Consolidated Entity constitutes
the Secured Debt of the Person giving the guaranty, and (viii) any secured
guaranty given by the Borrower or any Consolidated Entity of the unsecured
obligations of any Consolidated Entity constitutes the Secured Debt of the
Person giving the guaranty and shall not be calculated as part of the
obligations (secured or otherwise) of the Person directly incurring such
obligations.
"Shareholders' Equity" means, as of any date of determination, consolidated
shareholders' equity of the Borrower and its Consolidated Entities as of that
date determined in accordance with GAAP.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or
21
indirectly through one or more intermediaries, or both, by such Person. Unless
otherwise specified, all references herein to a "Subsidiary" or to
"Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement relating to the foregoing, and
(b) any and all transactions of any kind, and the related confirmations, which
are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any other master
agreement related to any of the foregoing (any such master agreement, together
with any related schedules, a "Master Agreement"), including any such
obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP.
"Terminus Project" means the project commonly known as "Terminus 100"
located at 0000 Xxxxxxxxx Xxxx in Atlanta, Georgia, which is currently being
constructed by the Borrower, which consists of a high rise office building and
ancillary retail containing approximately 651,000 square feet of office and
retail space, and parking associated with such office and retail; provided,
however the Terminus Project does not include the other land at 0000 Xxxxxxxxx
Xxxxxx and adjacent thereto owned by the Borrower or its Consolidated Entities,
the air rights above the parking structure which may be used for future
development, or the parking within the parking structure being developed which
will serve such potential future development above the parking structure. Such
building shall cease to constitute the "Terminus Project" and shall be
classified as an "Income Producing Asset" for purposes of all calculations
required hereunder as of the first calculation date for which (a) such building
is partially or fully income producing for financial reporting purposes on the
applicable calculation date and has been continuously partially or fully income
producing for financial
22
reporting purposes for the calendar quarter ending immediately preceding the
calculation date; (b) an unconditional base building certificate of occupancy
(or its equivalent) has been issued by the applicable Governmental Authority
with respect to such building; and (c) either (i) the leasable space contained
in such building has been leased to tenants in occupancy and/or to parties not
yet in occupancy but which have signed leases under which the only condition to
occupancy is completion of the applicable space, and the leases for such tenants
in occupancy or to be in occupancy represents eighty percent (80%) or more of
the rentable square footage contained or to be contained in such building; or
(ii) such building has been classified as the "Terminus Project" for purposes of
all calculations required hereunder for a period equal to or in excess of
eighteen (18) months following the issuance of an unconditional base building
certificate of occupancy.
"Terminus Project Budget" means the budget with respect to the construction
of the Terminus Project delivered by the Borrower to the Administrative Agent on
the Closing Date and thereafter as required by Section 6.02(f).
"Terminus Project Value" means the value of the Terminus Project at cost
reported to the date of calculation in accordance with GAAP; provided, that such
value shall be deemed equal to zero (0), as of the date on which the Terminus
Project is classified as an Income Producing Asset hereunder and for the
remainder of the term hereof (it being understood that at such time as the
Terminus Project becomes an Income Producing Asset, its value shall be
determined in accordance with the definition of "Value of Income Producing
Assets", including the proviso thereto).
"Threshold Amount" means $10,000,000.
"Total Assets" means, as of any calculation date, the sum of (a) the Value
of Income Producing Assets for all such assets of the Combined Parties, plus (b)
the Value of Liquid Assets of the Combined Parties, plus (c) the Value of
Non-Income Producing Assets of the Combined Parties, plus (d) the Terminus
Project Value; provided, however, that in calculating Total Assets, item (c)
shall be reduced to the extent necessary (with a corresponding reduction in the
sum of items (a), (b) and (c)) to establish that item (c) shall not exceed forty
percent (40%) of the sum of items (a), (b) and (c).
"Total Debt" means, as of any calculation date, for the Combined Parties
(reduced to the extent necessary to reflect the portion thereof not attributable
to Borrower's direct and indirect ownership interest), the sum of (without
duplication): (a) all outstanding Indebtedness for Money Borrowed (other than
the CSC Note); (b) all Capital Lease Obligations, and (c) all obligations
constituting Monetized Guarantees of such Persons; provided, however, that in
calculating the Total Debt of each Consolidated Entity and Unconsolidated
Entity, the amount of the items described in clauses (a), (b) and (c) above of
such Consolidated Entity and Unconsolidated Entity shall be multiplied by the
percentage of the Borrower's direct and indirect ownership interest in such
Consolidated Entity and Unconsolidated Entity. Total Debt shall not include any
such obligation of Investment Entities except, for clarification purposes, to
the extent any Consolidated Entity is liable for the same (disregarding any
Consolidated Entity's liability with respect to customary recourse carve-outs
applicable to any nonrecourse secured Indebtedness) and disregarding any general
partnership liability of the Designated Entities.
23
"Type" means, with respect to a Loan, its character as a Base Rate Loan or
a Eurodollar Rate Loan.
"Unconsolidated Entities" means, as of any date of determination, those
Persons in which the Borrower or any of the Consolidated Entities owns some
portion of Capital Stock and which are not consolidated with the Borrower on the
financial statements of the Borrower in accordance with GAAP. Unconsolidated
Entities shall not include Investment Entities.
"Unencumbered Properties" means all real property assets owned by the
Borrower or the Consolidated Entities that are not subject to any Liens other
than Permitted Liens and are located in the United States of America.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." mean the United States of America.
"Unsecured Debt" means, as of any date, the aggregate of all Indebtedness
for Money Borrowed of the Borrower and the Consolidated Entities that was
incurred, and continues to be outstanding, without granting a Lien (other than
Permitted Liens not described in clauses (a) or (f) of such definition) as
security for such Indebtedness for Money Borrowed. Unsecured Debt shall not
include any such obligations of Unconsolidated Entities or Investment Entities
except, for clarification purposes, to the extent any Consolidated Entity is
liable for the same (disregarding any liability with respect to customary
recourse carve-outs applicable to any nonrecourse secured obligations and
disregarding any general partnership liability of the Designated Entities). For
clarification purposes, (a) any unsecured guaranty given by the Borrower or any
Consolidated Entity of secured obligations of a Person who is not the Borrower
or a Consolidated Entity constitutes Unsecured Debt of the Borrower or such
Consolidated Entity giving the guaranty, (b) any unsecured guaranty given by the
Borrower or any Consolidated Entity of the secured obligations of the Borrower
or another Consolidated Entity constitutes the Secured Debt of the Borrower or
the Consolidated Entity directly incurring the secured obligations and shall not
be calculated as part of the obligations (either secured or unsecured) of the
Borrower or such Consolidated Entity giving the guaranty (except to the extent
that the relevant calculation does not otherwise account for the obligations of
the Borrower or the Consolidated Entity directly incurring the underlying
secured obligations, in which case it shall constitute the Unsecured Debt of the
Borrower or the Consolidated Entity giving the guaranty), (c) any unsecured
guaranty given by the Borrower or any Consolidated Entity of the unsecured
obligations of a Person who is not the Borrower or a Consolidated Entity
constitutes the Unsecured Debt of the Borrower or such Consolidated Entity
giving the guaranty, (d) any unsecured guaranty given by the Borrower or any
Consolidated Entity of the unsecured obligations of the Borrower or another
Consolidated Entity constitutes the Unsecured Debt of the Borrower or the
Consolidated Entity directly incurring such obligations and shall not be
calculated as part of the obligations (either secured or unsecured) of the
Borrower or such Consolidated Entity giving the guaranty (except to the extent
that the relevant calculation does not otherwise account for the obligations of
the Borrower or the Consolidated Entity directly
24
incurring the underlying unsecured obligations, in which case it shall
constitute the Unsecured Debt of the Borrower or the Consolidated Entity giving
the guaranty), (e) any secured guaranty given by the Borrower or any
Consolidated Entity of secured obligations of a Person who is not the Borrower
or a Consolidated Entity constitutes secured debt of the Borrower or such
Consolidated Entity giving the guaranty, (f) any secured guaranty given by the
Borrower or any Consolidated Entity of the secured obligations of the Borrower
or another Consolidated Entity constitutes the secured debt of the Borrower or
the Consolidated Entity directly incurring the secured obligations and shall not
be calculated as part of the obligations (either secured or unsecured) of the
Borrower or such Consolidated Entity giving the guaranty (except to the extent
that the relevant calculation does not otherwise account for the obligations of
the Borrower or the Consolidated Entity directly incurring the underlying
secured obligations, in which case it shall constitute the secured debt of the
Borrower or the Consolidated Entity giving the guaranty), (g) any secured
guaranty given by the Borrower or any Consolidated Entity of the unsecured
obligations of a Person who is not the Borrower or a Consolidated Entity
constitutes the secured debt of the Borrower or such Consolidated Entity giving
the guaranty, and (h) any secured guaranty given by the Borrower or any
Consolidated Entity of the unsecured obligations of the Borrower or another
Consolidated Entity constitutes the secured debt of the Borrower or such
Consolidated Entity giving the guaranty and shall not be calculated as part of
the obligations (either secured or unsecured) of the Borrower or the
Consolidated Entity directly incurring such obligations (except to the extent
that the relevant calculation does not otherwise account for the obligations of
the Borrower or such Consolidated Entity giving the guaranty, in which case it
shall constitute the Unsecured Debt of the Borrower or the Consolidated Entity
directly incurring the underlying unsecured obligations). For purposes of
calculating the financial covenants contained herein, obligations of the
Borrower or any Consolidated Entity pursuant to the terms of any letter of
credit shall be treated in the same manner as a guaranty.
"Unused Fee" has the meaning set forth in Section 2.09(a).
"Value of Income Producing Assets" means, as of any date, the aggregate
value of each Income Producing Asset existing as of such date, where the value
of each such Income Producing Asset equals: the product of (a) the Adjusted
Consolidated EBITDA for the most recent calendar quarter allocable to such
Income Producing Asset, (i) multiplied by four (4), (ii) then, divided by the
Applicable Capitalization Rate, multiplied by (b) (i) if such asset is owned by
the Borrower or any Consolidated Entity, 100% (adjusted, in the case of such an
asset owned by a Consolidated Entity, appropriately to reflect the relative
direct and indirect economic interest (calculated as a percentage) of the
Borrower in such Consolidated Entity determined in accordance with the
applicable provisions of the organizational documents of such Consolidated
Entity), and (ii) if such asset is owned by an Unconsolidated Entity, the
percentage of the Borrower's direct or indirect ownership in the Unconsolidated
Entity owning such asset; provided, however, that if any Income Producing Asset
has been an Income Producing Asset for a period of less than four (4) calendar
quarters, then such Income Producing Asset will be assigned a value which is the
greater of (i) the value of such asset determined in accordance with clauses (a)
and (b) above and (ii) the value of such asset determined in accordance with
clauses (a) and (b) of the definition of "Value of Non-Income Producing Assets"
or in accordance with the definition of "Terminus Project Value" as if such
asset were a Non-Income Producing Asset or the Terminus Project, as applicable.
25
"Value of Liquid Assets" means, as of any date, the sum of (a) the amount
of cash included in Liquid Assets, plus (b) an amount equal to (i) the market
value of any marketable securities included in Liquid Assets, less (ii) to the
extent not included in Total Debt, any margin indebtedness with respect thereto,
plus (c) the book value of notes receivable secured by a mortgage instrument
with a valid and enforceable first priority mortgage lien on a fee or leasehold
interest held by the debtor in the applicable real estate assets and included in
Liquid Assets (where the fair market value of such real estate assets is greater
than or equal to 110% of the amount of indebtedness secured thereby); provided,
that with respect to each asset the respective amounts used in calculating
clauses (a), (b) and (c) above shall be multiplied by (1) if such asset is owned
by the Borrower or any Consolidated Entity, 100% (adjusted, in the case of such
an asset owned by a Consolidated Entity, appropriately to reflect the relative
direct and indirect economic interest (calculated as a percentage) of the
Borrower in such Consolidated Entity determined in accordance with the
applicable provisions of the organizational documents of such Consolidated
Entity), and (2) if such asset is owned by an Unconsolidated Entity, the
percentage of the Borrower's direct or indirect ownership in the Unconsolidated
Entity owning such asset.
"Value of Non-Income Producing Assets" means on any calculation date, the
aggregate value of all Non-Income Producing Assets, where the value of each such
Non-Income Producing Asset is equal to the product of (a) the cost of such asset
reported to the date of calculation in accordance with GAAP, times (b) (i) if
such asset is owned by the Borrower or any Consolidated Entity, 100% (adjusted,
in the case of such an asset owned by a Consolidated Entity, appropriately to
reflect the relative direct and indirect economic interest (calculated as a
percentage) of the Borrower in such Consolidated Entity determined in accordance
with the applicable provisions of the organizational documents of such
Consolidated Entity), or (ii) if such asset is owned by an Unconsolidated
Entity, the percentage of the Borrower's direct or indirect ownership in the
Unconsolidated Entity owning such asset; provided, however, that the Wildwood,
North Point and Paulding undeveloped land held by the Borrower or its
Consolidated Entities shall be valued at a total of $119,000,000 for purposes of
this definition as of closing ($17,800,000 of such amount is attributable to the
Wildwood undeveloped land, $19,200,000 to the North Point undeveloped land and
$82,000,000 to the Paulding undeveloped land); provided further, that in the
event any parcels of such undeveloped land are sold, such aggregate value amount
shall be reduced according to the value attributed to the undeveloped land sold,
or, in the event that only a portion of any such undeveloped land is sold, to be
reduced pro rata according to square footage or acreage, as applicable), subject
to the right of the Administrative Agent to request the re-appraisal of one or
more of such properties in the event that the Administrative Agent reasonably
believes that the value thereof has been materially reduced for any reason.
1.02 OTHER INTERPRETIVE PROVISIONS.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
26
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and
words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical
or electronic form.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words
"to" and "until" each mean "to but excluding;" and the word "through" means
"to and including."
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS.
(a) All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted
pursuant to this Agreement shall be prepared in conformity with, GAAP (except as
provided in this Agreement with respect to Investment Entities) applied on a
consistent basis, as in effect from time to time, applied in a manner consistent
with that used in preparing the Audited Financial Statements, except as
otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either the
Borrower or the Required Lenders shall so request, the Administrative Agent, the
Lenders and the Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
1.04 ROUNDING.
Any financial ratios required to be maintained by the Borrower pursuant to
this Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of places
by which such ratio is expressed
27
herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS.
Unless otherwise expressly provided herein, (a) references to Organization
Documents, agreements (including the Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Loan Document; and (b) references to any
Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.
1.06 TIMES OF DAY.
Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 LOANS.
Subject to the terms and conditions set forth herein, each Lender severally
agrees to make loans (each such loan, a "Loan") to the Borrower from time to
time, on any Business Day during the Availability Period, in an aggregate amount
not to exceed at any time the amount of such Lender's Commitment; provided,
however, that after giving effect to any Borrowing, (a) the Outstanding Amount
shall not exceed the Aggregate Commitments, (b) the aggregate Unsecured Debt of
the Borrower and the Consolidated Entities (including any requested or pending
Borrowing) shall not exceed the amount permitted pursuant to Section 7.03(a)(ii)
hereof and (c) the Outstanding Amount shall be less than or equal to sixty
percent (60.0%) of all Eligible Costs. Within the limits of each Lender's
Commitment, and subject to the terms of this Section 2.01 and the other terms
and conditions hereof, the Borrower may borrow under this Section 2.01, prepay
under Section 2.05(a) and reborrow under this Section 2.01. Loans may be Base
Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Each Borrowing, each conversion of Loans from one Type to the other,
and each continuation of Eurodollar Rate Loans shall be made upon irrevocable
notice from the Borrower to the Administrative Agent, which may be given by
telephone (provided that such telephonic notice complies with the information
requirements of the form of Loan Notice attached hereto). Each such notice must
be received by the Administrative Agent not later than 1:00 p.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans, and (ii) on the requested date of any
Borrowing of Base Rate Loans. Each telephonic notice by the Borrower pursuant to
this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion
28
to or continuation of Eurodollar Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $100,000 in excess thereof. Each Borrowing of
or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof. Each Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a
Borrowing, a conversion of Loans from one Type to the other, or a continuation
of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion
or continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Loans to be borrowed, converted or continued, (iv) the Type
of Loans to be borrowed or to which existing Loans are to be converted, and (v)
if applicable, the duration of the Interest Period with respect thereto. If the
Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower
fails to give a timely notice requesting a conversion or continuation, then the
applicable Loans shall be made as, or converted to, Eurodollar Rate Loans with
an interest period of one month. Any such automatic conversion to Eurodollar
Rate Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans. If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans
in any such Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month. In connection with any
requested advance that constitutes a readvance of proceeds of the Loans that
have been previously prepaid by Borrower pursuant to Section 2.05(a), the
Borrower shall not be required to certify or otherwise submit with such Loan
Notice evidence or confirmation that the requested readvance is with respect to
costs and expenses incurred by the Borrower with respect to the Terminus Project
so long as the Borrower made such certification at the time such funds were
originally advanced.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Pro Rata Share of the
applicable Loans, and if notice of a conversion or continuation is not provided
by the Borrower by 1:00 p.m. three Business Days prior to the requested date of
any Borrowing of, conversion to or continuation of Eurodollar Rate Loans, the
Administrative Agent shall notify each Lender of the details of any automatic
conversion to Eurodollar Rate Loans described in the preceding subsection. In
the case of a Borrowing, each Lender shall make the amount of its Loan available
to the Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 12:00 p.m. on the Business Day specified in the
applicable Loan Notice for notices related to Eurodollar Rate Loans or notices
related to Base Rate Loans and given by the Borrower on or prior to 3:00 p.m. on
the day prior to the requested date for such Borrowing or 3:00 p.m. on the
Business Day specified in the applicable Loan Notice for notices related to Base
Rate Loans delivered after such time; provided, in each case, that nothing
contained in this sentence shall be deemed to alter the requirements contained
in the previous sentence for timely delivery of notices relating to Base Rate
Loans or Eurodollar Rate Loans. Upon satisfaction of the applicable conditions
set forth in Section 4.02 (and, if such Borrowing is the initial Borrowing,
Section 4.01), the Administrative Agent shall make all funds so received
available to the Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of the Borrower on the books of Bank of
America with the amount of such funds or (ii) wire transfer of such funds, in
each case in accordance with instructions provided to (and reasonably acceptable
to) the Administrative Agent by the Borrower.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the
29
existence of an Event of Default, no Loans may be requested as, converted to or
continued as Eurodollar Rate Loans without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. The determination of the
Eurodollar Rate by the Administrative Agent shall be conclusive in the absence
of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in
Bank of America's prime rate used in determining the Base Rate promptly
following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than five (5) Interest Periods in effect with respect to the
Loans. No more than two (2) Borrowings may be initiated in any given calendar
month.
2.03 INTENTIONALLY OMITTED.
2.04 INTENTIONALLY OMITTED.
2.05 PREPAYMENTS.
(a) Other than in connection with the termination of this Agreement
and all Commitments hereunder, the Borrower shall not be permitted to
prepay any Loans hereunder if, either before or after giving effect to the
proposed prepayment, there is principal indebtedness outstanding under the
Revolving Credit Agreement. To the extent there is no principal
indebtedness outstanding under the Revolving Credit Agreement both before
and after giving effect to any proposed prepayment hereunder, the Borrower
shall be permitted to prepay the Loans in accordance with the following
terms and conditions:
(i) The Borrower may, upon notice to the Administrative Agent, at
any time or from time to time (A) voluntarily prepay Base Rate Loans
in whole or in part without premium or penalty and (B) voluntarily
prepay Eurodollar Rate Loans in whole or in part on the last day of
the applicable Interest Period without premium or penalty; provided
that (1) such notice must be received by the Administrative Agent not
later than 1:00 p.m. (A) one (1) Business Day prior to any date of
prepayment of Eurodollar Rate Loans and (B) on the date of prepayment
of Base Rate Loans; (2) any prepayment of Eurodollar Rate Loans shall
be in a principal amount of $1,000,000 or a whole multiple of $100,000
in excess thereof; and (3) any prepayment of Base Rate Loans shall be
in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof or, in each case, if less, the entire principal amount
thereof then outstanding. Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Loans to be prepaid.
(ii) The Borrower may voluntarily prepay Eurodollar Rate Loans in
whole or in part on any date other than the last day of the Interest
Period
30
applicable thereto without premium; provided that the Borrower shall
deliver to the Administrative Agent a timely notice of prepayment in
accordance with clause (a) above and pay any "breakage" charges and
increased costs or charges incurred by the Lenders as the result of
such prepayment pursuant to Section 3.05.
In the case of any prepayment made or to be made in connection with subclauses
(i) or (ii) above: (A) the Administrative Agent will promptly notify each Lender
of its receipt of each such notice with respect thereto, and of the amount of
such Lender's Pro Rata Share of such proposed prepayment; (B) the Borrower shall
make such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein; (C) any prepayment of a
Eurodollar Rate Loan shall be accompanied by all accrued interest thereon,
together with any additional amounts required pursuant to Section 3.05; and (D)
each such prepayment shall be applied to the Loans of the Lenders in accordance
with their respective Pro Rata Shares. The failure of the Borrower to make a
prepayment hereunder following the delivery of a notice of a pending prepayment
pursuant to the provisions contained in this clause (a) shall not constitute a
Default or Event of Default hereunder; provided, however, that the
Administrative Agent shall not be required to accept any prepayment offered by
the Borrower hereunder unless timely notice thereof has been given in accordance
with (and to the extent required by) this clause (a) and Borrower's prepayment
is accompanied by any "breakage" charges and all other increased costs or
charges incurred by the Lenders as the result of such prepayment.
(b) If for any reason the Outstanding Amount at any time exceeds the
Aggregate Commitments then in effect or the aggregate Unsecured Debt of the
Borrower and the Consolidated Entities (including any requested or pending
Borrowing) exceeds the amount permitted pursuant to Section 7.03(a)(ii) hereof,
the Borrower shall immediately prepay Loans in an aggregate amount equal to such
excess.
2.06 TERMINATION OR REDUCTION OF COMMITMENTS.
(a) Voluntary Terminations or Reductions. The Borrower may, upon notice to
the Administrative Agent, terminate the Aggregate Commitments, or from time to
time permanently and irrevocably reduce the Aggregate Commitments; provided that
(i) any such notice shall be received by the Administrative Agent not later than
11:00 a.m. three (3) Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount of
$5,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the
Borrower shall not terminate or reduce the Aggregate Commitments if, after
giving effect thereto and to any concurrent prepayments hereunder, the
Outstanding Amount would exceed the Aggregate Commitments. Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Pro Rata Share. All fees accrued until the effective date of
any termination of the Aggregate Commitments shall be paid on the effective date
of such termination. Notwithstanding anything contained herein to the contrary,
Borrower shall not be permitted to request a reduction in the Aggregate
Commitments pursuant to the this Section 2.6 more than two (2) times during any
twelve (12) month period.
(b) General. The Administrative Agent will promptly notify the Lenders of
any such notice of termination or reduction of the Aggregate Commitments.
31
2.07 REPAYMENT OF LOANS.
The Borrower shall repay to the Lenders on the Maturity Date the aggregate
principal amount of Loans outstanding on such date in accordance with Section
2.14 hereof.
2.08 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan shall
bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate.
(b) (i) If any amount of principal of any Loan is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws (until such time as such payment
is made and all Events of Default existing under the Agreement are cured, at
which point the Default Rate shall no longer be applied).
(ii) If any amount (other than principal of any Loan) payable by
the Borrower under any Loan Document is not paid by the date on which
such failure to pay constitutes an Event of Default hereunder (whether
as a result of the stated maturity of any Obligations, by acceleration
or otherwise), then, unless otherwise agreed to by the Required
Lenders, such amount shall thereafter bear interest at a fluctuating
interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws (until such time as all
Events of Default existing under the Agreement are cured, at which
point the Default Rate shall no longer be applied).
(iii) Upon the request of the Required Lenders, while any Event
of Default exists, the Borrower shall pay interest on the principal
amount of all outstanding Obligations hereunder from the date of such
Event of Default at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by
applicable Laws (until such time as all Events of Default existing
under the Agreement are cured, at which point the Default Rate shall
no longer be applied).
(iv) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
32
(d) The parties hereto hereby agree and stipulate that the only charge
imposed upon the Borrower for the use of money in connection with this Agreement
is and shall be the interest specifically described in Sections 2.08(a) and (b).
Notwithstanding the foregoing, the parties hereto further agree and stipulate
that all amounts paid or due pursuant to Article III hereof and all agency fees,
syndication fees, arrangement fees, amendment fees, up-front fees, commitment
fees, facility fees, unused fee, closing fees, underwriting fees, default
charges, late charges, funding or "breakage" charges, increased cost charges,
attorneys' fees and reimbursement for costs and expenses paid by the
Administrative Agent or any Lender to third parties or for damages incurred by
the Administrative Agent or any Lender or any other similar amounts or charges
made to compensate the Administrative Agent or any such Lender for underwriting
or administrative services and costs or losses performed or incurred, and to be
performed or incurred by the Administrative Agent and/or the Lenders in
connection with this Agreement and shall under no circumstances be deemed to be
charges for the use of money. Any use by Borrower of certificates of deposit
issued by any Lender or other accounts maintained with any Lender has been and
shall be voluntary on the part of Borrower. All charges other than charges for
the use of money shall be fully earned and nonrefundable when due.
2.09 FEES. (a)Unused Fee. In consideration of the Commitments of the
Lenders hereunder, the Borrower shall pay to the Administrative Agent (for the
benefit of the Lenders) a daily fee in connection with the unused amount of the
Aggregate Commitments (the "Unused Fee"). The Unused Fee shall be payable as of
the first day of each calendar quarter and as of the Maturity Date in arrears in
an amount equal to the sum of the Daily Unused Fees accrued during the
applicable calendar quarter period (or portion thereof). All Unused Fees shall
be fully earned when paid and shall not be refundable for any reason whatsoever.
The Unused Fee shall commence to accrue on the Closing Date.
(b) Other Fees. The Borrower shall, without duplication, pay to the
Arranger and the Administrative Agent for their own respective accounts fees
described in Paragraphs 1-3 of the Fee Letter that relate to the Loans in the
amounts and at the times specified in the Fee Letter. Bank of America shall pay
to the Lenders the fees specified in Paragraph 2 of the Fee Letter that relate
to the Loans. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
2.10 COMPUTATION OF INTEREST AND FEES.
All computations of fees and interest shall be made on the basis of a
360-day year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year).
Interest shall accrue on each Loan for the day on which the Loan is made, and
shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, provided that any Loan that is repaid on the same
day on which it is made shall, subject to Section 2.12(a), bear interest for one
day.
2.11 EVIDENCE OF DEBT.
The Loans made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be
33
conclusive absent manifest error of the amount of the Loans made by the Lenders
to the Borrower and the interest and payments thereon. Any failure to so record
or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Borrower shall execute and
deliver to such Lender (through the Administrative Agent) a Note, which shall
evidence such Lender's Loans in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.
2.12 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent's Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to each
Lender its Pro Rata Share (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day,
and such extension of time shall be reflected in computing interest or fees, as
the case may be.
(c) Unless the Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such Lender
in immediately available funds, together with interest thereon in
respect of each day from and including the date such amount was made
available by the Administrative Agent to such Lender to the date such
amount is repaid to the Administrative Agent in immediately available
funds at the Federal Funds Rate from time to time in effect; and
34
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof
in immediately available funds, together with interest thereon for the
period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect, plus any administrative, processing or similar fees
customarily charged by the Administrative Agent in connection with the
foregoing. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included
in the applicable Borrowing. If such Lender does not pay such amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon the Borrower, and
the Borrower shall pay such amount to the Administrative Agent,
together with interest thereon (including any applicable "breakage"
charges related thereto) for the Compensation Period at a rate per
annum equal to the rate of interest applicable to the applicable
Borrowing. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its Commitment or to prejudice any rights
which the Administrative Agent or the Borrower may have against any
Lender as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for any
Loan to be made by such Lender as provided in the foregoing provisions of this
Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Borrowing set
forth in Article IV are not satisfied or waived in accordance with the terms
hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loans are several and
not joint. The failure of any Lender to make any Loan on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any
other Lender to so make its Loan or purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.13 SHARING OF PAYMENTS.
If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Loans made by it, any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated hereunder) thereof,
such Lender shall immediately (a) notify the Administrative Agent of such fact,
and (b) purchase from the other Lenders such participations in the Loans made by
them as
35
shall be necessary to cause such purchasing Lender to share the excess payment
in respect of such Loans, pro rata with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from the
purchasing Lender under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by the purchasing Lender in
its discretion), such purchase shall to that extent be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender's ratable share (according
to the proportion of (i) the amount of such paying Lender's required repayment
to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of
the total amount so recovered, without further interest thereon. The Borrower
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. The Administrative Agent will keep
records (which shall be conclusive and binding in the absence of manifest error)
of participations purchased under this Section and will in each case notify the
Lenders following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section shall from and after such purchase have
the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
2.14 MATURITY DATE.
(a) Initial Maturity Date. Subject to extension pursuant to the terms and
conditions set forth in clause (b) of this Section 2.14 and subject to the
provisions of clause (c) of this Section 2.14, the Borrower shall, on March 7,
2010 (the "Initial Maturity Date"), cause the Obligations (including, without
limitation, all outstanding principal and interest on the Loans and all fees,
costs and expenses due and owing under the Loan Documents) to be Fully
Satisfied.
(b) Extended Maturity Date Option. Not more than 180 days and not less than
60 days prior to the Initial Maturity Date, the Borrower may request in writing
that the Lenders extend the term of this Agreement for an additional twelve (12)
calendar month period (the end of such period being the "Extended Maturity
Date"). Such extension option shall be subject to the satisfaction of the
following requirements:
(i) at the Initial Maturity Date, there shall not exist any
Default or Event of Default by the Borrower or any other Loan Party;
and
(ii) the Borrower shall, at the Initial Maturity Date, deliver to
the Administrative Agent (for the pro rata benefit of the Lenders
based on their respective Commitments) an extension fee equal to
fifteen hundredths of one percent (0.15%) of the then existing
Aggregate Commitments (whether funded or unfunded).
(c) Satisfaction of Obligations Upon Acceleration. Notwithstanding anything
contained herein or in any other agreement to the contrary, to the extent any of
the Obligations
36
are accelerated pursuant to the terms hereof (including, without limitation,
Section 8.02 hereof), the Borrower shall, immediately upon the occurrence of
such acceleration, cause such accelerated Obligations to be Fully Satisfied.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by the Borrower to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its
overall assets, receipts, branch profits, net income, and/or franchise and
similar taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the Laws of which the
Administrative Agent or such Lender, as the case may be, is organized or
maintains a lending office, is doing business or has other contacts (all such
non-excluded taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by any Laws to deduct any Taxes
from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section), each of the
Administrative Agent and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions, (iii) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
Laws, and (iv) within 30 days after the date of such payment, the Borrower shall
furnish to the Administrative Agent (which shall forward the same to such
Lender) the original or a certified copy of a receipt evidencing payment
thereof. If the Lender receives any refund of taxes paid in accordance with the
previous sentence, the Lender shall promptly reimburse the Borrower for such
gross-up.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes or Other
Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
37
(d) The Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by the Administrative Agent and such Lender, (ii) amounts
payable under Section 3.01(c) and (iii) any liability (including additions to
tax, penalties, interest and expenses) arising therefrom or with respect
thereto, in each case whether or not such Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. Payment
under this subsection (d) shall be made within 30 days after the date the Lender
or the Administrative Agent makes a demand therefor.
3.02 ILLEGALITY.
If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to
determine or charge interest rates based upon the Eurodollar Rate, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
any obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice,
the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), convert all Eurodollar Rate Loans of such Lender to Base
Rate Loans, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day,
or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such conversion, the Borrower shall also pay
accrued interest on the amount so converted. Each Lender agrees to designate a
different Lending Office if such designation will avoid the need for such notice
and will not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES.
If the Required Lenders determine that for any reason adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
that the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender and will provide with such notification such
information and materials as Administrative Agent determines is reasonably
required to support such determination. Thereafter, the obligation of the
Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such
notice, and the Administrative Agent shall promptly notify the Borrower and each
Lender when the conditions for the obligation of the Lenders to make or maintain
Eurodollar Rate Loans is restored. Upon receipt of notice that the obligation of
Lenders to make or maintain Eurodollar Rate Loans is suspended, the Borrower may
revoke any pending request for a Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Borrowing of Base Rate Loans in the amount
specified therein.
38
3.04 INCREASED COST; REDUCED RETURN; CAPITAL ADEQUACY; RESERVES.
(a) If any Lender determines that as a result of the introduction of or any
change in or in the interpretation of any Law, or such Lender's compliance
therewith, there shall be any increase in the cost to such Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Loans or (as the case may
be) issuing or participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the foregoing
(excluding for purposes of this subsection (a) any such increased costs or
reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section
3.01 shall govern), (ii) changes in the basis of taxation of overall net income
or overall gross income by the United States or any foreign jurisdiction or any
political subdivision of either thereof under the Laws of which such Lender is
organized or has its Lending Office, and (iii) reserve requirements contemplated
by Section 3.04(c)), then from time to time within 15 days of demand of such
Lender (with a copy of such demand to the Administrative Agent), the Borrower
shall pay to such Lender such additional amounts as will compensate such Lender
for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, or
compliance by such Lender (or its Lending Office) therewith, has the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then from time to time within 15 days
of demand of such Lender (with a copy of such demand to the Administrative
Agent), the Borrower shall pay to such Lender such additional amounts as will
compensate such Lender for such reduction.
3.05 COMPENSATION FOR LOSSES.
Within 15 days of demand by any Lender (with a copy to the Administrative
Agent) from time to time, the Borrower shall promptly compensate such Lender for
and hold such Lender harmless from any loss, cost or expense incurred by it as a
result of:
(a) any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last
day of the Interest Period therefor as a result of a request by the Borrower
pursuant to Section 10.16;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also pay any
customary administrative fees charged by such Lender in connection with the
foregoing.
39
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit
or other borrowing in the London interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan was
in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the additional amount or
amounts to be paid to it hereunder, an explanation thereof and reasonable
supporting information or evidence with respect thereto shall be conclusive in
the absence of manifest error so long as such requests for compensation are made
within ninety (90) days of incurrence. Any Person seeking compensation under
this Article III shall, in connection with any such claim, provide both the
Administrative Agent and the Borrower with a copy of the certificate and
supporting information/evidence referenced in the previous sentence. In
determining the compensation amount claimed, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section 3.01 or
3.04 or a Lender's making a determination under Section 3.02, the Borrower may
replace such Lender in accordance with Section 10.16.
3.07 SURVIVAL.
All of the Borrower's obligations under this Article III shall survive for
a period of ninety (90) days following the date on which such obligations arise
and shall, to the extent such ninety (90) day period has not run prior to the
termination of the Aggregate Commitments and repayment of all other Obligations
hereunder, survive such termination of the Aggregate Commitments and repayment
of all other Obligations hereunder for the remainder of such ninety (90) day
period.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL BORROWING.
The occurrence of the Closing Date, the initial effectiveness of this
Agreement and obligation of each Lender to make its initial Borrowing hereunder
is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent:
40
(i) executed counterparts of this Agreement, sufficient in number
for distribution to the Administrative Agent, each Lender and the
Borrower;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note;
(iii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agent may reasonably
require evidencing the identity, authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible Officer
in connection with this Agreement and the other Loan Documents to
which such Loan Party is a party;
(iv) such documents and certifications as the Administrative
Agent may reasonably require to evidence that each Loan Party is duly
organized or formed, and is validly existing, in good standing and
qualified to engage in business in the jurisdiction of its
incorporation or organization;
(v) a favorable opinion of XxXxxxx Long & Xxxxxxxx, counsel to
the Loan Parties, addressed to the Administrative Agent and each
Lender, in form and substance satisfactory to the Administrative
Agent, covering enforceability of the Loan Documents and other matters
to be agreed upon;
(vi) a certificate signed by a Responsible Officer of the
Borrower certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been satisfied, (B) that there has been no event
or circumstance since the date of the Audited Financial Statements
that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect; and (C)
the calculation of the Consolidated Leverage Ratio as of December 31,
2005;
(vii) a duly completed Compliance Certificate as of September 30,
2005, signed by a Responsible Officer of the Borrower;
(viii) such other assurances, certificates, documents, consents
or opinions as the Administrative Agent or the Required Lenders
reasonably may require; and
(ix) a Loan Notice, duly executed by the Borrower requesting a
Borrowing on the Closing Date in an amount not to exceed sixty percent
(60%) of Eligible Costs as of the Closing Date.
(b) Any fees required to be paid to the Administrative Agent, the Arrangers
or any other Lender (whether pursuant to the Fee Letter or otherwise) on or
before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid
all Attorney Costs of the Administrative Agent to the extent invoiced prior to
or on the Closing Date, plus such additional amounts of Attorney Costs of the
Administrative Agent as shall
41
constitute its reasonable estimate of Attorney Costs incurred or to be incurred
by it through the closing proceedings (provided that such estimate shall not
thereafter preclude a final settling of accounts between the Borrower and the
Administrative Agent).
(d) The representations and warranties of the Loan Parties contained in
Article V or any other Loan Document, or which are contained in any other
document furnished at any time under this Agreement, shall be true and correct
in all material respects on and as of the Closing Date.
(e) No Default shall exist and be continuing as of the Closing Date.
(f) There shall not have occurred a material adverse change since September
30, 2005 in the business, assets, operations, condition (financial or otherwise)
or prospects of the Borrower and its Consolidated Entities taken as a whole, or
in the facts and information regarding such entities as represented to date.
(g) There shall not exist any action, suit, investigation, or proceeding,
pending or threatened, in any court or before any arbitrator or governmental
authority that purports to affect the Borrower, its Consolidated Entities or any
transaction contemplated hereby, or that could reasonably be expected to have a
Material Adverse Effect on the Borrower and its Consolidated Entities or any
transaction contemplated hereby or on the ability of any party to perform its
obligations under the documents to be executed in connection herewith or in
connection with any other Loan Document.
(h) The Borrower and its Consolidated Entities shall be in compliance with
all existing financial obligations and Contractual Obligations, the failure to
comply with could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received and approved the Terminus
Project Budget, leasing reports and a summary of all costs incurred through the
end of January, 2006, together with such other materials related to the
construction, ownership and/or future operation of the Terminus Project as may
be reasonably requested by the Administrative Agent (including, to the extent
required by the Administrative Agent and without limitation, plans,
specifications, schedules, surveys, site plans, permits, construction and
management contracts, architectural and engineering contracts and environmental
site assessments related to the Terminus Project or such construction, ownership
and/or operation).
(j) The Administrative Agent and Lenders shall have completed all due
diligence with respect to the Terminus Project, the Borrower, its Consolidated
Entities and its Unconsolidated Entities and the Properties owned thereby.
4.02 CONDITIONS TO ALL BORROWINGS.
The obligation of each Lender to honor any Loan Notice (other than a Loan
Notice requesting only a conversion of Loans to the other Type, or a
continuation of Eurodollar Rate Loans) is subject to the following conditions
precedent:
42
(a) The representations and warranties of the Loan Parties contained in
Article V or any other Loan Document, or which are contained in any document
furnished at any time under this Agreement, shall be true and correct in all
material respects on and as of the date of such Borrowing, except to the extent
of changes resulting from matters permitted under the Loan Documents or other
changes in the ordinary course of business not having a Material Adverse Effect,
and except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct as of
such earlier date, and except that for purposes of this Section 4.02, the
representations and warranties contained in subsections (a) and (b) of Section
5.05 shall be deemed to refer to the most recent statements furnished pursuant
to clauses (a) and (b), respectively, of Section 6.01.
(b) No Default shall exist, or would result from such proposed Borrowing.
(c) For any Loan Notice delivered on or after July 1, 2006, sixty percent
(60%) of the rentable square footage contained or to be contained in the
Terminus Project shall have been leased to parties that have signed leases
containing arms-length terms reasonable in the market.
(d) The Administrative Agent shall have received a Loan Notice in
accordance with the requirements hereof.
Each Loan Notice (other than a Loan Notice requesting only a conversion of
Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by
the Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a), (b) and (c) have been satisfied on and
as of the date of the applicable Borrowing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Loan Parties, jointly and severally, represent and warrant to the
Administrative Agent and the Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS.
The Borrower and each Consolidated Entity (a) is duly organized or formed,
validly existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own its assets and carry on its business and (ii) execute, deliver and perform
its obligations under the Loan Documents (if any) to which it is a party, (c) is
duly qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is in
compliance with all Laws; except in each case referred to in clause (b)(i), (c)
or (d), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION.
The execution, delivery and performance by each Loan Party of each Loan
Document to which such Person is party, have been duly authorized by all
necessary corporate or other
43
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien (other than a Permitted
Lien) under, (i) any Contractual Obligation to which such Person is a party or
(ii) any order, injunction, writ or decree of any Governmental Authority or any
arbitral award to which such Person or its property is subject; or (c) violate
any Law.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document except the filing of this Agreement with the Securities and Exchange
Commission.
5.04 BINDING EFFECT.
This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that
is party thereto. This Agreement constitutes, and each other Loan Document when
so delivered will constitute, a legal, valid and binding obligation of such Loan
Party, enforceable against each Loan Party that is party thereto in accordance
with its terms, except (i) that enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws (whether statutory,
regulatory or decisional) now or hereafter in effect relating to creditors'
rights generally and (ii) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to certain equitable defenses and
to the discretion of the court before which any proceeding therefor may be
brought, whether in a proceeding at law or in equity.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
The Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present in accordance with GAAP the
financial condition of the Borrower and the Consolidated Entities (including the
Consolidated Entities' interest in the Unconsolidated Entities) as of the date
thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (iii) show all material
indebtedness and other liabilities, direct or contingent, of the applicable
parties as of the date thereof, including liabilities for taxes, material
commitments and Indebtedness as required by GAAP.
(a) The unaudited consolidated balance sheets of the Borrower and the
Consolidated Parties (including the Consolidated Entities' interest in the
Unconsolidated Entities) dated September 30, 2005, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
calendar quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present in accordance with GAAP the
financial condition of the parties identified therein as of the date thereof and
their results of operations for the period covered thereby, subject, in the case
of clauses (i) and (ii), to the absence of footnotes
44
and to normal year-end audit adjustments. Schedule 5.05 sets forth, as of the
Closing Date, all material Indebtedness for Money Borrowed of the Borrower, the
Consolidated Entities and the Unconsolidated Entities, respectively, as of the
date of such financial statements. Without limiting the foregoing, such list
shall include all Indebtedness for Money Borrowed in excess of $10,000,000.
(b) Since the date of the Audited Financial Statements, there has been no
event or circumstance, either individually or in the aggregate, that has had or
could reasonably be expected to have a Material Adverse Effect.
5.06 LITIGATION.
Except as specifically disclosed in Schedule 5.06 (as amended by any
Compliance Certificate or Loan Notice containing supplemental information
thereto), there are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of the Loan Parties after due and diligent investigation,
threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against any Consolidated Party or against any of
their properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) either individually or in the aggregate, that are not covered by
insurance and, if determined adversely, could reasonably be expected to have a
Material Adverse Effect.
5.07 NO DEFAULT.
Neither the Borrower, nor any Consolidated Entity is in default under or
with respect to any Contractual Obligation that could, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. No
Default has occurred and is continuing or would result from the consummation of
the transactions contemplated by this Agreement or any other Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS.
The Borrower and each Consolidated Entity has good record and marketable
title in fee simple to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of its business, except for such
defects in title as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The property of the Borrower and the
Consolidated Entities is subject to no Liens, other than Liens permitted by
Section 7.01.
5.09 ENVIRONMENTAL COMPLIANCE.
The Borrower and each Consolidated Entity conduct in the ordinary course of
business in connection with the purchase of real estate a review of the effect
of existing Environmental Laws and claims alleging potential liability or
responsibility for violation of any Environmental Law on or with respect to such
properties, and as a result thereof the Loan Parties have reasonably concluded
that, except as specifically disclosed in Schedule 5.09 (as amended by any
Compliance Certificate or Loan Notice containing supplemental information
thereto), any
45
violation of such Environmental Laws and claims could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
5.10 INSURANCE.
The properties of the Borrower and each Consolidated Entity are insured
with financially sound and reputable insurance companies not the Borrower, any
Subsidiary of the Borrower, any Consolidated Entity, any Unconsolidated Entity
or any Investment Entity, in such amounts, with such deductibles and covering
such risks as are customarily carried by companies engaged in similar businesses
and owning similar properties in localities where the Borrower or the applicable
Consolidated Entity operates.
5.11 TAXES.
The Borrower and each Consolidated Entity have filed all Federal, state and
other material tax returns and reports required to be filed unless an extension
has been obtained, and have paid all Federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those which
are being contested in good faith by appropriate proceedings diligently
conducted and for which adequate reserves have been provided in accordance with
GAAP. To the best of Borrower's knowledge and belief, there is no proposed tax
assessment against the Borrower or any Consolidated Entity that would, if made,
have a Material Adverse Effect.
5.12 ERISA COMPLIANCE.
(a) Except as set forth on Schedule 5.12, each Plan is in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
Federal or state Laws. Each Plan that is intended to qualify under Section
401(a) of the Code has received a favorable determination letter from the IRS or
an application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Borrower, nothing has occurred
which would prevent, or cause the loss of, such qualification. The Borrower and
each ERISA Affiliate have made all required contributions to each Plan subject
to Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Loan Parties,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice
under Section
46
4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of
ERISA with respect to a Multiemployer Plan; and (v) neither the Borrower nor any
ERISA Affiliate has engaged in a transaction that could be subject to Sections
4069 or 4212(c) of ERISA.
5.13 CONSOLIDATED ENTITIES; REIT STATUS.
As of the Closing Date and as of the date of the last Compliance
Certificate delivered pursuant to the terms of this Agreement, the Borrower has
no Consolidated Entities other than those specifically disclosed in Part (a) of
Schedule 5.13 and has no equity investments in any other Unconsolidated Entity
or Investment Entity other than those specifically disclosed in Part (b) of
Schedule 5.13 (as amended by any Compliance Certificate containing supplemental
information thereto). The Borrower qualifies as a REIT.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) The Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any
Consolidated Entity (i) is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, or (ii) is or is required to be registered as an
"investment company" under the Investment Company Act of 1940.
5.15 DISCLOSURE.
Each Loan Party has disclosed to the Administrative Agent and the Lenders
all agreements, instruments and corporate or other restrictions to which it or
any of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. No report, financial statement, certificate or other
information furnished in writing by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder
(as modified or supplemented by other information so furnished) as of the date
thereof contains any material misstatement of material fact or omits to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made and taken as a whole, not misleading;
provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
5.16 COMPLIANCE WITH LAWS.
The Borrower and each Consolidated Entity is in compliance in all material
respects with the requirements of all Laws and all orders, writs, injunctions
and decrees applicable to it or to its properties, except in such instances in
which (a) such requirement of Law or order, writ,
47
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.17 INTELLECTUAL PROPERTY; LICENSES, ETC.
The Borrower and each Consolidated Entity owns, or possess the right to
use, all of the trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intellectual property rights
(collectively, "IP Rights") that are reasonably necessary for the operation of
their respective businesses, without conflict with the rights of any other
Person except where such failure could not reasonably be expected to have a
Material Adverse Effect. To the best knowledge of the Loan Parties, no slogan or
other advertising device, product, process, method, substance, part or other
material now employed, or now contemplated to be employed, by the Borrower or
any Consolidated Entity infringes upon any rights held by any other Person
except where such failure could not reasonably be expected to have a Material
Adverse Effect. Except as specifically disclosed in Schedule 5.17, (as amended
by any Compliance Certificate or Loan Notice containing supplemental information
thereto), no claim or litigation regarding any of the foregoing is pending or,
to the best knowledge of the Loan Parties, threatened, which, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.18 COMPLIANCE WITH ZONING AND OTHER REQUIREMENTS.
The Terminus Project complies with applicable Laws, zoning ordinances,
regulations and restrictive covenants applicable thereto, except in such
instances in which (a) the requirement of such Laws, zoning ordinances,
regulations or restrictive covenants is being contested in good faith by
appropriate proceedings or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. All use and other requirements of any Governmental
Authority having jurisdiction over the Terminus Project have been, or, during
the appropriate stage of construction of the Terminus Project, will be
satisfied, except where the failure to satisfy the same, either individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.19 PLANS AND SPECIFICATIONS.
To the Borrower's knowledge, the plans and specifications prepared for
Borrower are adequate in all material respects for the construction of the
Terminus Project except where the failure to be adequate, either individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect. The plans and specifications prepared for Borrower have been approved by
all Governmental Authorities having jurisdiction over the Terminus Project and
by the beneficiary of each restrictive covenant affecting the Terminus Project
whose approval is required, except where such failure to approve, either
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. To the best of Borrower's knowledge, the Terminus
Project, if constructed substantially in accordance with the plans and
specifications prepared for Borrower, will comply in all material respects with
all applicable Laws, including those Laws relating to access and facilities for
disabled persons, except where
48
the failure to satisfy the same, either individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
5.20 UTILITIES.
All utility services deemed necessary by the Borrower for the construction
of the Terminus Project and the operation thereof for their intended purposes
are available at the boundaries of the property on which the Terminus Project is
being constructed (or will be available upon the completion of work shown in the
Borrower's plans and specifications).
5.21 TAXPAYER IDENTIFICATION NUMBER. The Borrower's true and correct U.S.
taxpayer identification number is set forth on Schedule 10.02.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, each Loan Party
shall, and shall (except in the case of the covenants set forth in Sections
6.01, 6.02, 6.03 and 6.11) cause each Consolidated Entity to:
6.01 FINANCIAL STATEMENTS.
Deliver to the Administrative Agent, in form and detail reasonably
satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the end of
each calendar year of the Borrower (commencing with the calendar year ended
2005), a consolidated balance sheet of the Borrower and the Consolidated
Entities as at the end of such calendar year, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for such
calendar year, setting forth in each case in comparative form the figures for
the previous calendar year, all in reasonable detail and prepared in accordance
with GAAP, audited and accompanied by a report and opinion of an independent
certified public accountant or accounting firm of nationally recognized standing
reasonably acceptable to the Administrative Agent, which report and opinion
shall be prepared in accordance with generally accepted auditing standards and
shall not be subject to any "going concern" or like qualification, exception,
assumption or explanatory language or any qualification, exception, assumption
or explanatory language as to the scope of such audit; and
(b) as soon as available, but in any event within 45 days after the end of
each of the first three calendar quarters of each calendar year of the Borrower
(commencing with the calendar quarter ended March 31, 2006), a consolidated
balance sheet of the Borrower and the Consolidated Entities as at the end of
such calendar quarter, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such calendar quarter and
for the portion of the Borrower's calendar year then ended, setting forth in
each case in comparative form the figures for the corresponding calendar quarter
of the previous calendar year and the corresponding portion of the previous
calendar year, all in reasonable detail and certified by a Responsible Officer
of the Borrower as fairly presenting the financial condition,
49
results of operations, shareholders' equity and cash flows of the Borrower and
the Consolidated Entities in accordance with GAAP as of the date thereof,
subject only to normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section
6.02, the Borrower shall not be separately required to furnish such information
under clause (a) or (b) above, but the foregoing shall not be in derogation of
the obligation of the Borrower to furnish the information and materials
described in subsections (a) and (b) above at the times specified therein.
6.02 CERTIFICATES; OTHER INFORMATION.
Deliver to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to
in Section 6.01(a), a certificate of its independent certified public
accountants certifying such financial statements and stating that in making the
examination necessary therefor no knowledge was obtained of any Default or, if
any such Default shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to
in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a
Responsible Officer of the Borrower;
(c) promptly after any request by the Administrative Agent or any Lender,
copies of any detailed audit reports, management letters submitted to the board
of directors (or the audit committee of the board of directors) of the Borrower
by independent accountants in connection with the accounts or books of the
Borrower or any Consolidated Entity, or any audit of any of them;
(d) promptly after the same are available, copies of each annual report,
proxy or financial statement or other material report or communication sent to
the stockholders of the Borrower, and copies of all annual, regular, or material
periodic and special reports and registration statements which the Borrower may
file or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be delivered to
the Administrative Agent pursuant hereto;
(e) on a quarterly basis (but only until such time as the Terminus Project
becomes an Income Producing Asset), (i) during the development and construction
of the Terminus Project, leasing status reports with respect to the Terminus
Project and (ii) upon commencement of operation of the Terminus Project,
operating statements, including rent rolls;
(f) on a quarterly basis (but only until such time as the Terminus Project
becomes an Income Producing Asset), a copy of the current Terminus Project
Budget, certified by a Responsible Officer as being a complete and accurate
summary as of the end of the preceding quarter; and
50
(g) promptly, such additional data, certificates, reports, statements,
documents or other information regarding the business, assets, liabilities,
financial or corporate affairs, projected financial performance, operations or
other matters pertaining to the Borrower or any Consolidated Entity, or
compliance with the terms of the Loan Documents, as the Administrative Agent or
any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section
6.02(d) (to the extent any such documents are included in materials otherwise
filed with the SEC) may be delivered electronically and if so delivered, shall
be deemed to have been delivered on the date (i) on which the Borrower posts
such documents, or provides a link thereto on the Borrower's website on the
Internet at the website address listed on Schedule 10.02; or (ii) on which such
documents are posted on the Borrower's behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that the Borrower shall notify (which may be by
facsimile or electronic mail) the Administrative Agent and each Lender of the
posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance the Borrower shall
be required to provide paper copies of the Compliance Certificates required by
Section 6.02(b) to the Administrative Agent. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or the
Arranger will make available to the Lenders materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, "Borrower
Materials") by posting the Borrower Materials on IntraLinks or another similar
electronic system that is approved by the Borrower, such approval not to be
unreasonably withheld (the "Platform") and (b) certain of the Lenders may be
"public-side" Lenders (i.e., Lenders who notify the Borrower and the
Administrative Agent in writing in advance that they do not wish to receive
material non-public information with respect to the Borrower or its securities)
(each a "Public Lender"). The Borrower hereby agrees that (i) all Borrower
Materials that are to be made available to Public Lenders shall be clearly and
conspicuously marked "PUBLIC" which, at a minimum, shall mean that the word
"PUBLIC" shall appear prominently on the first page thereof; (ii) by marking
Borrower Materials "PUBLIC", the Borrower shall be deemed to have authorized the
Administrative Agent, the Arranger and the Lenders to treat such Borrower
Materials as not containing any material non-public information with respect to
the Borrower or its securities for purposes of United States Federal and state
securities laws (provided, however, that to the extent such Borrower Materials
constitute Information, they shall be treated as set forth in Section 10.08);
(iii) all Borrower Materials marked "PUBLIC" are permitted to be made available
through a portion of the Platform designated "Public Investor," and (iv) the
Administrative Agent and the Arranger shall treat any Borrower Materials that
are not marked "PUBLIC" as being suitable only for posting on a portion of the
Platform not designated "Public Investor." Notwithstanding the foregoing, the
Borrower shall be under no obligation to xxxx any Borrower Materials "PUBLIC."
51
6.03 NOTICES.
Promptly notify the Administrative Agent and each Lender after a
Responsible Officer becomes aware thereof:
(a) of the occurrence of any Default and the nature thereof;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including (i) breach or non-performance of,
or any default under, a Contractual Obligation of the Borrower or any
Consolidated Entity; (ii) any dispute, litigation, investigation, proceeding or
suspension between the Borrower or any Consolidated Entity and any Governmental
Authority; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Consolidated Entity,
including pursuant to any applicable Environmental Laws;
(c) of the occurrence of any ERISA Event; and
(d) of any material change in accounting policies or financial reporting
practices by the Borrower or any Consolidated Entity.
Each notice pursuant to this Section shall be accompanied by a statement of
a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower has taken and proposes
to take with respect thereto. Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all material provisions of this Agreement
and any other Loan Document that have been breached.
6.04 PAYMENT OF OBLIGATIONS.
Pay and discharge as the same shall become due and payable, (a) all
material tax liabilities, assessments and governmental charges or levies upon it
or its properties or assets, unless the same are being contested in good faith
by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Consolidated
Entity; and (b) all lawful material claims which, if unpaid, would by law become
a Lien (other than a Permitted Lien) upon its property, provided, however, such
lawful claims may be contested in good faith in appropriate proceedings and as
to which adequate reserves in accordance with GAAP shall have been established,
but only so long as enforcement of any such claim has been stayed and so long as
such proceedings could not subject any Lender to any civil or criminal penalty
or liability.
6.05 PRESERVATION OF EXISTENCE, ETC.
(a) Except to the extent failure to do the same is not likely to result in
a Material Adverse Effect: (i) preserve, renew and maintain in full force and
effect its legal existence and good standing under the Laws of the jurisdiction
of its organization except in a transaction permitted by Section 7.04 or 7.05;
(ii) take all reasonable action to maintain all rights, privileges, permits,
licenses and franchises necessary or desirable in the normal conduct of its
business; and (iii) preserve or renew all of its registered patents, trademarks,
trade names and service marks
52
and (b) cause the Borrower to, at all times during the term hereof, maintain its
status as an Internal Revenue Service-qualified REIT.
6.06 MAINTENANCE OF PROPERTIES.
Except to the extent failure to do the same is not likely to result in a
Material Adverse Effect: (a) maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good
working order and condition, ordinary wear and tear excepted; (b) make all
necessary repairs thereto and renewals and replacements thereof; and (c) use at
least the standard of care typical in the industry in the operation and
maintenance of its facilities.
6.07 MAINTENANCE OF INSURANCE.
Maintain with financially sound and reputable insurance companies (provided
that such companies shall not, in any case, be the Borrower, any Subsidiary of
the Borrower, any Consolidated Entity, any Unconsolidated Entity or any
Investment Entity), insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons and
providing for not less than 30 days' prior notice to the Administrative Agent of
termination, lapse or cancellation of such insurance.
6.08 COMPLIANCE WITH LAWS.
Comply in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its business or
property, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
6.09 BOOKS AND RECORDS.
(a) Maintain proper books of record and account, in which full, true and
correct entries in all material respects in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Borrower or such Consolidated Entity, as the case may
be; and (b) maintain such books of record and account in material conformity
with all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Consolidated Entity, as the case may be.
6.10 INSPECTION RIGHTS.
Permit representatives and independent contractors of the Administrative
Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with its directors,
officers, and independent public accountants, all at the expense of the Borrower
and at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower; provided,
however, that
53
neither the Administrative Agent nor any Lender shall take any action which
would result in the interference with any tenant's right to quiet enjoyment of
the property subject to any lease during the term thereof; provided, further,
that the Administrative Agent and each Lender agree to use reasonable efforts to
share information among one another and to coordinate such inspections to
minimize disruption for the Borrower; provided, further, however, that when an
Event of Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrower at any time during normal business
hours and without advance notice.
6.11 USE OF PROCEEDS; INCURRENCE OF BORROWINGS.
Except as otherwise provided in this Section, use the proceeds of the
Borrowings for the sole purpose of financing up to but not exceeding sixty
percent (60%) of Eligible Costs; provided, however that any proceeds of the
Borrowings which constitute readvances of the Loans prepaid by Borrower pursuant
to Section 2.05(a) of this Agreement may be used by Borrower for acquisitions,
development, renovation, working capital in the ordinary course of business, to
support letters of credit or for other general corporate purposes.
6.12 ADDITIONAL GUARANTORS.
Notify the Administrative Agent at the time that any Person becomes a
Domestic Subsidiary that constitutes a Consolidated Entity, and promptly
thereafter (and in any event within thirty (30) days), except as specifically
provided below, cause such Person to (a) become a Guarantor by executing and
delivering to the Administrative Agent a Joinder Agreement and such other
document as the Administrative Agent shall reasonably deem appropriate for such
purpose, and (b) deliver to the Administrative Agent documents of the types
referred to in clauses (iii) and (iv) of Section 4.01(a) and favorable opinions
of counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to in
clause (a)), all in form, content and scope reasonably satisfactory to the
Administrative Agent; provided, however, that (i) a Consolidated Entity shall
not be required to execute a Joinder Agreement and become a Guarantor hereunder
if (A) such Consolidated Entity is inactive, has aggregate assets with a book
value of less than $5,000,000 and has no operations or (B) such Consolidated
Entity is prohibited under the terms of its Organization Documents or the terms
of any Indebtedness from providing Guarantees of Indebtedness of any other
Person (ii) notwithstanding the foregoing, one or more Consolidated Entities
designated by the Borrower that would otherwise be exempt from the requirements
set forth in item (A) of subclause (i) above shall, nonetheless, be required to
execute a Joinder Agreement and become a Guarantor pursuant to the provisions of
this Section 6.12 so that the aggregate value of assets held by Consolidated
Entities that are not required to execute Joinder Agreements pursuant to the
terms of subclause (i)(A) above shall not exceed 10% of the total value of the
Unencumbered Properties (as reasonably determined by the Administrative Agent
using information provided to it by the Borrower pursuant to the terms of this
Agreement) and (iii) to the extent a Consolidated Entity that was previously
exempted from execution of a Joinder Agreement pursuant to subclause (i) above
no longer satisfies the criteria for exemption set forth therein, such
Consolidated Entity shall promptly fulfill the requirements of clauses (a) and
(b) above. It is understood and agreed that as of the Closing Date and pursuant
to clause (i) above, CP Venture Three LLC shall not be required to be a
Guarantor hereunder; provided, however, that if, after
54
the Closing Date, such entity is no longer prohibited under the terms of its
Organization Documents or the terms of any Indebtedness from providing
Guarantees of Indebtedness of any other Person, such entity shall promptly
fulfill the requirements of clauses (a) and (b) above.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, no Loan Party
shall, nor shall it permit any Consolidated Entity to, directly or indirectly:
7.01 LIENS.
Create, incur, assume or suffer to exist any Lien (other than a Permitted
Lien) upon (a) any of the Unencumbered Properties; provided, that (i) mortgage
Indebtedness with respect to such Unencumbered Properties (other than the
Terminus Project) may be incurred to the extent the underlying Indebtedness
would not cause Borrower to be in violation of any financial or other covenant
contained herein (including, without limitation, those contained in Sections
7.03 or 7.11 hereof) and (ii) the Borrower acknowledges that the incurrence of
any such mortgage Indebtedness will cause the applicable Unencumbered Property
to cease to qualify as such for purposes of this Agreement; or (b) any of its
other property, assets or revenues, whether now owned or hereafter acquired, if
the Indebtedness underlying such Lien would cause Borrower to be in violation of
Section 7.11(c) hereof. Notwithstanding the foregoing, the Borrower's ownership
interest in the Terminus Project shall not be subject to any Lien other than
Permitted Liens unless the existence of such Lien has been previously consented
to in writing by the Administrative Agent.
7.02 INVESTMENTS.
Make any loan, advance or otherwise acquire evidences of Indebtedness,
capital stock or other securities of any Person or otherwise make any
Investment, except:
(a) Investments in, loans and advances to, or other acquisitions of
evidences of Indebtedness or capital stock or other securities of the Borrower,
any Consolidated Entity or any Unconsolidated Entity, and
(b) Investments in, loans and advances to, or other acquisitions of
evidences of Indebtedness or capital stock or other securities of any Person if
the same relate to real estate, interests in real estate or Persons involved in
the ownership, investment, management, leasing, development or financing of real
estate to the extent such Investment is in compliance with the limitations on
assets that may be owned by real estate investment trusts and is consistent with
Borrower's business strategy;
provided that Borrower and its Consolidated Entities shall not make Investments
in or loans or advances to, or acquire the capital stock of any Persons that
would qualify as an Investment Entity if the aggregate amount thereof, together
with amounts committed to be contributed or advanced to any other then-existing
Investment Entities, exceeds $90,000,000.
55
Notwithstanding anything to the contrary contained in the foregoing, each of the
Borrower and its Consolidated Entities may make investments of its working
capital and other reserves in (i) cash, (ii) Cash Equivalents and (iii) money
market mutual funds and other investments approved from time to time by the
Administrative Agent in its discretion.
7.03 INDEBTEDNESS.
Create, incur, assume or suffer to exist any Indebtedness for Money
Borrowed:
(a) that is Unsecured Debt, except to the extent that:
(i) if such Indebtedness is new Indebtedness that did not exist
as of the Closing Date (other than Indebtedness evidenced by the
Revolving Credit Agreement), the Administrative Agent has received,
not less than ten (10) days prior to the closing of such Indebtedness,
written notice of the intention of such Loan Party to enter into such
Indebtedness, together with a pro forma Compliance Certificate showing
projected compliance by the Loan Parties with each of the financial
covenants set forth herein from the date of the incurrence of such
Indebtedness through the Extended Maturity Date and a summary of the
material terms and conditions of the loan documents with respect
thereto; and
(ii) the aggregate Unsecured Debt of the Loan Parties and CP
Venture Three LLC (including any requested or pending Borrowing) is
less than or equal to the sum of (A) the Value of Income Producing
Assets wholly owned by the Loan Parties and CP Venture Three LLC that
are Unencumbered Properties, divided by 1.67, plus (B) the Value of
Non-Income Producing Assets wholly owned by the Loan Parties and CP
Venture Three LLC that are Unencumbered Properties, divided by 2.00,
plus (C) the Value of Liquid Assets wholly owned by the Loan Parties
and CP Venture Three LLC and not encumbered (except for Permitted
Liens), divided by 2.00, plus (D) the Terminus Project Value until
such time as it becomes an Income Producing Asset, divided by 1.67;
provided, that to the extent the sum of the amounts calculated
pursuant to subclauses (B) and (C) above constitutes more than 40% of
the total of the amount calculated pursuant to subclauses (A), (B) and
(C) of this clause (a)(ii), such amount shall be reduced to the extent
required to cause the amount calculated pursuant to such subclauses
(B) and (C) to equal 40% of the total of the amount calculated
pursuant to subclauses (A), (B) and (C) of this clause (a)(ii); and
(b) that is Secured Debt that is recourse to the Loan Parties (not
including customary recourse carve-outs relating to nonrecourse Secured Debt)
except to the extent that such Secured Debt does not, as of any date of
calculation, exceed an aggregate amount equal to fifteen percent (15.0%) of
Total Assets as of such date and is not secured by any interest (direct or
indirect) in the Terminus Project.
7.04 FUNDAMENTAL CHANGES.
Merge, dissolve, liquidate, consolidate with or into another Person, except
that, so long as no Default or Event of Default exists or would result
therefrom:
56
(a) any Consolidated Entity of the Borrower may merge with the Borrower,
provided that the Borrower shall be the continuing or surviving Person, or any
one or more other Consolidated Entities, provided that when any Guarantor is
merging with another Consolidated Entity of the Borrower, a Guarantor shall be
the continuing or surviving Person or the surviving entity shall assume all
guarantee obligations of the Guarantor simultaneously with such merger; and
(b) any Person may merge or consolidate with or into the Borrower;
provided, that (i) such action is not hostile, (ii) the Borrower shall be the
continuing or surviving Person, (iii) the other entity or entities involved in
such merger or consolidation are engaged in a line of business in which the
Borrower is permitted to engage, and (iv) after giving effect to such merger or
consolidation, the Borrower shall be in compliance, on a pro forma basis, with
Sections 7.03 and 7.11.
7.05 DISPOSITIONS.
Make any Disposition or enter into any agreement to make any Disposition
(other than an agreement to Dispose of the Terminus Project), except:
(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property (other than the Terminus
Project, except that the Terminus Project (or an interest therein) may be
transferred to either (i) a wholly-owned Consolidated Entity of the Borrower or
(ii) as may be consented to in writing by the Required Lenders) to the extent
that (i) such property is exchanged for credit against the purchase price of
similar replacement property or (ii) the proceeds of such Disposition are
reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Consolidated Entity to the Borrower or
to a wholly-owned Consolidated Entity of the Borrower or other Person that will
be a Guarantor upon the completion of such Disposition; provided that if the
transferor of such property is a Guarantor, the transferee thereof must either
be the Borrower or a Guarantor;
(e) Any other Dispositions by the Borrower and/or the Consolidated Entities
(other than a Disposition of the Terminus Project, except that the Terminus
Project (or an interest therein) may be transferred to either (i) a wholly-owned
Consolidated Entity of the Borrower or (ii) as may be consented to in writing by
the Required Lenders); provided that, (i) to the extent any such Disposition
involves property with a value or purchase price in excess of $35,000,000,
neither the Borrower nor any Consolidated Entity shall Dispose of such property
unless the Borrower has, within twenty (20) days prior to such disposition,
delivered to the Administrative Agent a Compliance Certificate showing projected
compliance by the Loan Parties with each of the financial covenants set forth
herein; (ii) except to the extent the Administrative Agent has provided written
consent for such Disposition expressly noting the existence or projected
existence of such Event of Default, no Event of Default shall exist as of the
date of such Disposition or would result from such Disposition and (iii) to the
extent such action would
57
require that a Guarantor be released, the Administrative Agent has provided
written consent of such release (which consent will not be withheld or
unreasonably delayed to the extent a properly and fully completed Compliance
Certificate is provided by the Borrower pursuant to and in accordance with
subclause (i) above and such asset is the only asset of the applicable Guarantor
or such asset is the Capital Stock of such Guarantor).
7.06 RESTRICTED PAYMENTS.
Declare or make, directly or indirectly, any Restricted Payment or
Restricted Purchase, or incur any obligation (contingent or otherwise) to do so,
except that:
(a) the Borrower may, during any taxable year, declare or make Restricted
Payments if the Borrower's Consolidated Leverage Ratio, as of the end of the
preceding taxable year, is less than or equal to .55 to 1.00; provided, however,
that if the Borrower's Consolidated Leverage Ratio is greater than .55 to 1.00
as of the end of any taxable year, the Borrower may, during the next taxable
year, declare or make Restricted Payments in an amount not to exceed the greater
of (i) 95% of funds from operations for the taxable year, adjusted to include
gains (or losses) from sales of property, (ii) 110% of taxable income for the
taxable year or (iii) the minimum amount required to maintain REIT status;
(b) the Consolidated Entities may make Restricted Payments to the Borrower
and to any other Consolidated Entities;
(c) the Borrower and the Consolidated Entities may make cash distributions
to their respective shareholders or other owners for capital gains resulting
from certain assets sales to the extent necessary to avoid payment of taxes on
such asset sales imposed under Sections 857(b)(3) and 4981 of the Code;
(d) any Consolidated Entity (other than the Borrower) may make payments to
any partner, member or shareholder of such Person required to be made pursuant
to any contractual obligations of such Person or the Organization Documents of
such Person (other than distributions to the equity holders of the Borrower in
their capacity as such); and
(e) so long as there does not exist at such time and would not be caused
thereby, (i) an Event of Default under this Agreement, or (ii) any other Event
of Default which has not been cured or waived by the Required Lenders within a
period of ninety (90) days from the date that the Borrower knew or should have
known of such Event of Default, the Borrower may make Restricted Purchases.
7.07 INTENTIONALLY OMITTED.
7.08 TRANSACTIONS WITH AFFILIATES.
Enter into any material transaction of any kind with any Affiliate of the
Borrower, whether or not in the ordinary course of business, other than on fair
and reasonable terms substantially as favorable to the Borrower or such
Affiliate as would be obtainable by the Borrower or such Affiliate at the time
in a comparable arm's length transaction with a Person
58
other than an Affiliate except for agreements which are direct cost or direct
revenue pass-through in nature.
7.09 INTENTIONALLY OMITTED.
7.10 USE OF PROCEEDS.
Use the proceeds of any Borrowing, whether directly or indirectly, and
whether immediately, incidentally or ultimately, to purchase or carry margin
stock (within the meaning of Regulation U of the FRB) or to extend credit to
others for the purpose of purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose.
7.11 FINANCIAL COVENANTS.
(a) Shareholders' Equity. Permit Shareholders' Equity at any time to be
less than the sum of (a) $445,900,000, plus (b) an amount equal to seventy
percent (70.0%) of the amount of proceeds (net of transaction costs) received by
the Borrower or any wholly-owned Consolidated Entity (other than (i) issuances
to the Borrower or a wholly-owned Consolidated Entity or (ii) issuances the
proceeds of which are used to refinance an existing equity issue) from the
issuance of shares of capital stock, warrants, options or other equity
securities of any class or character following September 30, 2005.
(b) Consolidated Unencumbered Interest Coverage Ratio. Permit the
Consolidated Unencumbered Interest Coverage Ratio (as calculated as of the end
of each calendar quarter of the Borrower based on the information provided
pursuant to Section 6.01 hereof) to be less than 1.75 to 1.00.
(c) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio at
any time during the term hereof to be greater than .60 to 1.00.
(d) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed
Charge Coverage Ratio, as of the end of any calendar quarter of the Borrower
based on the information provided pursuant to Section 6.01 hereof, to be less
than 1.50 to 1.00.
7.12 PREPAYMENT OF OTHER INDEBTEDNESS, ETC.
If any Event of Default has occurred and is continuing or would be directly
or indirectly caused as a result thereof, after the issuance thereof, (a) amend
or modify any of the terms of any Indebtedness of such Person (other than
Indebtedness arising under the Loan Documents) if such amendment or modification
would add or change any terms in a manner adverse in any material respect to
such Person or to the Lenders, (b) shorten the final maturity or average life to
maturity thereof or require any payment thereon to be made sooner than
originally scheduled or increase the interest rate applicable thereto, or (c)
make (or give any notice with respect thereto) any voluntary or optional payment
or prepayment thereof, or make (or give any notice with respect thereto) any
redemption or acquisition for value or defeasance (including without limitation,
by way of depositing money or securities with the trustee with respect thereto
before due for the purpose of paying when due), refund, refinance or exchange
with respect thereto.
59
7.13 ORGANIZATION DOCUMENTS; SUBSIDIARIES.
Permit any Loan Party to (a) amend, modify, waive or change its
Organization Documents in a manner materially adverse to the Lenders or in a
manner that permits any Person (other than Xxx Xxxxxxx) to, at any time, own
more than twenty-five percent (25%) of the voting equity securities of the
Borrower, or (b) create, acquire or permit to exist or permit or cause any of
their Subsidiaries to create, acquire or permit to exist, any Foreign
Subsidiaries, except to the extent that the assets held in such Foreign
Subsidiaries constitute less than ten percent (10.0%) of Total Assets.
7.14 COVENANTS IN REVOLVING CREDIT AGREEMENT INCORPORATED BY REFERENCE.
Until this Agreement has expired or been terminated and all Loans or other
Obligations hereunder have been Fully Satisfied, (i) all covenants that are
added to the Revolving Credit Agreement after the date hereof and (ii) any
modifications after the date hereof to any covenant set forth in the Revolving
Credit Agreement that results in such covenant being more restrictive than the
corresponding covenant contained herein, then, in each case, such additional or
modified covenant shall be incorporated by reference into this Agreement mutatis
mutandis, but only for so long as such additional or more restrictive covenant
is included in the Revolving Credit Agreement or such covenant is more
restrictive.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT.
Any of the following shall constitute an Event of Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when
and as required to be paid herein, any amount of principal of any Loan at
maturity, or (ii) within five (5) Business Days after the same becomes due, any
interest on any Loan, or any fee due hereunder, or (iii) within ten (10)
Business Days after the same becomes due, any other amount payable hereunder or
under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05, 6.10,
6.11 or 6.12 or Article VII; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for thirty (30) days after receipt of notice by the Loan Parties; or
(d) Representations and Warranties. Any representation, warranty or
certification made or deemed made by or on behalf of the Borrower or any other
Loan Party herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith shall be incorrect or misleading in any
material respect when made or deemed made; or
60
(e) Cross-Default.
(i) Any Loan Party or any Consolidated Entity (A) fails to make
any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any
recourse Indebtedness for Money Borrowed or Monetized Guarantee (other
than Indebtedness hereunder and Indebtedness under Swap Contracts)
having an aggregate principal amount (excluding undrawn committed or
available amounts and including amounts owing to all creditors under
any combined or syndicated credit arrangement) of more than the
Threshold Amount, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness for Money
Borrowed or Monetized Guarantee or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
occurs and (C) all applicable grace and/or cure period with respect to
such Indebtedness for Money Borrowed has expired, the effect of which
default or other event is to cause, or to permit the holder or holders
of such Indebtedness for Money Borrowed or the beneficiary or
beneficiaries of such Monetized Guarantee (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness for
Money Borrowed to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an
offer to repurchase, prepay, defease or redeem such Indebtedness for
Money Borrowed to be made, prior to its stated maturity, or such
Monetized Guarantee to become payable or cash collateral in respect
thereof to be demanded; or
(ii) there occurs under any Swap Contract an Early Termination
Date (as defined in such Swap Contract) resulting from (A) any event
of default under such Swap Contract as to which any Loan Party or any
Consolidated Entity is the Defaulting Party (as defined in such Swap
Contract) or (B) any Termination Event (as so defined) under such Swap
Contract as to which any Loan Party or any Consolidated Entity is an
Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by any Loan Party or such Consolidated Entity
as a result thereof is greater than the Threshold Amount; or
(iii) (A) there occurs a default or event of default (following
all applicable cure and grace periods) at any time during the term
hereof under any single non-recourse Indebtedness for Money Borrowed
transaction of any Loan Party or any Consolidated Entity to the extent
that: (1) such Indebtedness for Money Borrowed transaction is secured
by a Lien on one or more assets of the Borrower or any Consolidated
Entity (other than such Person's interests in any Investment Entity);
and (2) the Borrower or any Consolidated Entity has invested net
equity (after distributions) of $40,000,000 or more in the assets
subject to such Lien; or
(B) the aggregate net investment of the Borrower and the
Consolidated Entities (after distributions and, as applicable, net of
any gains under GAAP) pursuant to (A) above that is subject to such
defaulted non-recourse
61
Indebtedness for Money Borrowed or write down (as applicable and, for
purposes of this subclause (B) only, irregardless of whether the net
investment meets the $40,000,000 thresholds noted in such provisions)
is, during the term of this Agreement, in excess of $100,000,000 (or,
if the term of this Agreement is extended to the Extended Maturity
Date, $125,000,000); or
(f) Insolvency Proceedings, Etc. Any Loan Party or any Consolidated Entity
institutes or consents to the institution of any proceeding against it under any
Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(g) Inability to Pay Debts; Attachment. Any Loan Party or any Consolidated
Entity admits in writing its inability or otherwise fails generally to pay its
debts as they become due; or
(h) Judgments. There is entered against any Loan Party or any Consolidated
Entity (i) a final judgment or order for the payment of money in an aggregate
amount exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of thirty (30) consecutive
days during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted
hereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect with respect to any Loan Party; or any Loan Party other than
the Administrative Agent or one of the Lenders contests in any manner the
validity or enforceability of any Loan Document; or any Loan Party denies that
it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or
62
(k) Change of Control. There occurs any Change of Control with respect to
the Borrower.
8.02 REMEDIES UPON EVENT OF DEFAULT.
If any Event of Default occurs and is continuing, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower; and
(c) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents or applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and payable
without further act of the Administrative Agent or any Lender.
8.03 APPLICATION OF FUNDS.
After the exercise of remedies provided for in Section 8.02 (or after the
Loans have automatically become immediately due and payable as set forth in the
proviso to Section 8.02), any amounts received on account of the Obligations
shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under Article III) payable to the Administrative Agent in its capacity
as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the
Lenders (including Attorney Costs and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans and other Obligations, ratably among the
Lenders in proportion to the respective amounts described in this clause Third
payable to them;
63
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans, ratably among the Lenders in proportion to the
respective amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
9.02 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties under this Agreement
or any other Loan Document by or through agents, employees or attorneys-in-fact
and shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENT.
No Agent-Related Person shall (a) be liable for any action taken or omitted
to be taken by any of them under or in connection with this Agreement or any
other Loan Document or the transactions contemplated hereby (except for its own
gross negligence or willful misconduct in connection with its duties expressly
set forth herein), or (b) be responsible in any manner to any Lender or
participant for any recital, statement, representation or warranty made by any
Loan Party or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document,
64
or the validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document, or for any failure of any Loan Party
or any other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
or participant to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any Loan
Party or any Affiliate thereof.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to any Loan Party),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent shall be fully justified in failing or refusing to take
any action under any Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions specified in
Section 4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
9.05 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Administrative Agent for
the account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or the Borrower referring to this Agreement,
describing such Default and stating that such notice is a "notice of default."
The Administrative Agent will notify the Lenders of its receipt of any such
notice. The Administrative Agent shall take such action with respect to such
Default as may be directed by the Required Lenders in accordance with Article
VIII; provided, however, that unless and until the Administrative Agent has
received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable or in the best interest of the
Lenders.
65
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE AGENT.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower and the other Loan Parties hereunder. Each
Lender also represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower and the other Loan
Parties. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent herein, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of any
of the Loan Parties or any of their respective Affiliates which may come into
the possession of any Agent-Related Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT.
Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand each Agent-Related Person (to the extent not
reimbursed by or on behalf of any Loan Party and without limiting the obligation
of any Loan Party to do so), pro rata, and hold harmless each Agent-Related
Person from and against any and all Indemnified Liabilities incurred by it;
provided, however, that no Lender shall be liable for the payment to any
Agent-Related Person of any portion of such Indemnified Liabilities to the
extent determined in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from such Agent-Related Person's own gross
negligence or willful misconduct; provided, however, that no action taken in
accordance with the directions of the Required Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive termination of the Aggregate
66
Commitments, the payment of all other Obligations and the resignation of the
Administrative Agent.
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Loan Parties and their respective Affiliates
as though Bank of America were not the Administrative Agent hereunder and
without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, Bank of America or its Affiliates may receive
information regarding any Loan Party or its Affiliates (including information
that may be subject to confidentiality obligations in favor of such Loan Party
or such Affiliate) and acknowledge that the Administrative Agent shall be under
no obligation to provide such information to them. With respect to its Loans,
Bank of America shall have the same rights and powers under this Agreement as
any other Lender and may exercise such rights and powers as though it were not
the Administrative Agent, and the terms "Lender" and "Lenders" include Bank of
America in its individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may be removed at the written direction of the
Required Lenders to the extent the Administrative Agent is shown to be grossly
negligent in the performance of its material obligations and/or duties hereunder
or to have engaged in willful misconduct in the performance of such obligations
and/or duties. The Administrative Agent may resign as Administrative Agent upon
30 days' notice to the Lenders and the Borrower. If the Administrative Agent
resigns or is otherwise removed under this Agreement, the Required Lenders shall
appoint from among the Lenders a successor administrative agent for the Lenders,
which successor administrative agent shall be consented to by the Borrower at
all times other than during the existence of an Event of Default (which consent
of the Borrower shall not be unreasonably withheld or delayed). If no successor
administrative agent is appointed prior to the effective date of the resignation
or removal of the Administrative Agent, the Administrative Agent may appoint,
after consulting with the Lenders and the Borrower, a successor administrative
agent from among the Lenders (and, in the case of a removal of the
Administrative Agent, with the consent of the Borrower, such consent not to be
unreasonably withheld). Upon the acceptance of its appointment as successor
administrative agent hereunder, the Person acting as such successor
administrative agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term "Administrative Agent" shall mean
such successor administrative agent, and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated
without any other or further act or deed on the part of such retiring
Administrative Agent or any other Lender. After any retiring or removed
Administrative Agent's resignation or removal (as applicable) hereunder as
Administrative Agent, the provisions of this Article IX and Sections 10.04 and
10.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring or removed Administrative Agent's
notice of resignation or its removal by the Lenders, the retiring/removed
67
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.
9.10 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether
the Administrative Agent shall have made any demand on the Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans and all other
Obligations that are owing and unpaid and to file such other documents as
may be necessary or advisable in order to have the claims of the Lenders
and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders and the Administrative Agent under Sections 2.09
and 10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
9.11 GUARANTY MATTERS.
The Lenders irrevocably authorize the Administrative Agent, at its option
and in its discretion to release any Guarantor from its obligations under the
Guaranty if:
(a) (i) such Person is the subject of or enters into a Disposition
pursuant to Section 7.05(e) hereof, (ii) the Administrative Agent receives
a Compliance Certificate with respect to such Disposition, (iii) such
Compliance Certificate is properly and fully completed pursuant to and in
accordance with Section 7.05(e)(i) and (iv) the asset subject
68
to such Disposition is the only asset of the applicable Guarantor or is the
Capital Stock of such Guarantor;
(b)(i) such Person enters into mortgage Indebtedness that is permitted
by Section 7.01(a) hereof and the terms of such mortgage Indebtedness
prohibit such Person from being a Guarantor hereunder, (ii) the
Administrative Agent receives a Compliance Certificate with respect to such
mortgage Indebtedness demonstrating compliance with Section 7.01(a)(i)
hereof and (iii) the asset being subject to such mortgage Indebtedness is
the only asset of the applicable Guarantor;
(c) such Person otherwise ceases to be a Consolidated Entity as a
result of a transaction permitted hereunder; or
(d) such Guarantor, following any transaction not prohibited by the
terms of this Agreement, ceases to hold any material assets.
Upon request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent's authority to release any Guarantor
from its obligations under the Guaranty pursuant to this Section 9.11. The
Administrative Agent shall, at the request of the Borrower, consent to the
release of any Guarantor hereunder or otherwise provide evidence of such release
reasonably acceptable to the Borrower to the extent such release is permitted
pursuant to clauses (a), (b) or (c) above.
9.12 OTHER AGENTS; ARRANGERS AND MANAGERS.
None of the Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a "syndication agent," "documentation
agent," "managing agent," "co-agent," "book manager," "lead manager,"
"arranger," "lead arranger" or "co-arranger" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than,
in the case of such Lenders, those applicable to all Lenders as such. Without
limiting the foregoing, none of the Lenders or other Persons so identified shall
have or be deemed to have any fiduciary relationship with any Lender. Each
Lender acknowledges that it has not relied, and will not rely, on any of the
Lenders or other Persons so identified in deciding to enter into this Agreement
or in taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
10.01 AMENDMENTS, ETC.
No amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Borrower or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such amendment, waiver or consent shall:
69
(a) waive any condition set forth in Section 4.01(a) without the written
consent of each Lender;
(b) except as permitted by Section 2.14 hereof, extend or increase the
Commitment of any Lender (or reinstate any Commitment of any Lender terminated
pursuant to Section 8.02) without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment or mandatory prepayment of principal, interest or fees due to
the Lenders (or any of them) or any scheduled or mandatory reduction of the
Aggregate Commitments hereunder or under any other Loan Document without the
written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan or (subject to clause (iv) of the second proviso to this Section 10.01)
any fees payable hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby; provided, however, that only
the consent of the Required Lenders shall be necessary to amend the definition
of "Default Rate" or to waive any obligation of the Borrower to pay interest at
the Default Rate;
(e) change Section 2.13 or Section 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender;
(g) except as expressly provided in this Agreement or the other Loan
Documents, release any Guarantor from the Guaranty without the written consent
of each Lender;
(h) waive any Event of Default based on a failure to pay principal,
interest or fees due hereunder (as referenced in Section 8.01(a)) without the
written consent of each Lender; or
(i) permit the Borrower to assign any of its obligations hereunder, except
in accordance with Section 10.07(a) hereof without the written consent of each
Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under
this Agreement or any other Loan Document; and (ii) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased or extended without the consent of such Lender.
70
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission). All such written notices shall be mailed certified or
registered mail, faxed or delivered to the applicable address, facsimile number
or (subject to subsection (c) below) electronic mail address, and all notices
and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:
(i) if to the Borrower, any Guarantor or the Administrative
Agent, to the address, facsimile number, electronic mail address or
telephone number specified for such Person on Schedule 10.02 or to
such other address, facsimile number, electronic mail address or
telephone number as shall be designated by such party in a notice to
the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Borrower and the
Administrative Agent.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by facsimile shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b). Notwithstanding the foregoing, notices relating to Defaults,
Events of Default or the exercise of remedies hereunder shall only be delivered
by hand (and signed for by a Person at the offices of or the mail facilities
used by the Borrower), overnight courier service or certified or registered
mail.
(b) Electronic Communications. Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided that the foregoing shall not
apply to notices to any Lender pursuant to Article II if such Lender has
notified the Administrative Agent that it is incapable of receiving notices
under such Article by electronic communication. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
71
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
"Agent Parties") have any liability to the Borrower, any Lender or any other
Person for losses, claims, damages, liabilities or expenses of any kind (whether
in tort, contract or otherwise) arising out of the Borrower's or the
Administrative Agent's transmission of Borrower Materials through the Internet,
except to the extent that such losses, claims, damages, liabilities or expenses
are determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Agent Party; provided, however, that in no event shall any Agent Party have
any liability to the Borrower, any Lender or any other Person for indirect,
special, incidental, consequential or punitive damages (as opposed to direct or
actual damages).
(d) Effectiveness of Facsimile Documents and Signatures. Loan Documents may
be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(e) Reliance by Administrative Agent and Lenders. The Administrative Agent
and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Loan Notices) purportedly given by or on behalf of the Borrower even
if (i) such notices were not made in a manner specified herein, were incomplete
or were not preceded or followed by any other form of notice specified herein,
or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrower shall indemnify each Agent-Related Person and
each Lender from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the
Borrower. All telephonic notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES.
No failure by any Lender or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.04 ATTORNEY COSTS, EXPENSES AND TAXES.
The Borrower agrees (a) to pay or reimburse the Administrative Agent for
all reasonable costs and expenses incurred in connection with the preparation,
negotiation and execution of this Agreement and the other Loan Documents and any
amendment, waiver, consent or other
72
modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (b) to pay or reimburse the
Administrative Agent and each Lender for all reasonable costs and expenses
incurred in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or the other Loan
Documents in connection with an Event of Default (including all such reasonable
costs and expenses incurred during any "workout" or restructuring in respect of
the Obligations and during any legal proceeding, including any proceeding under
any Debtor Relief Law), including all Attorney Costs. The foregoing costs and
expenses shall include all search, filing, recording, title insurance and
appraisal charges and fees and taxes related thereto, and other out-of-pocket
expenses incurred by the Administrative Agent and the cost of independent public
accountants and other outside experts retained by the Administrative Agent or
any Lender in connection with an Event of Default. All amounts due under this
Section 10.04 shall be payable within ten Business Days after demand therefor.
The agreements in this Section shall survive the termination of the Aggregate
Commitments and repayment of all other Obligations.
10.05 INDEMNIFICATION BY THE BORROWER.
Whether or not the transactions contemplated hereby are consummated, the
Borrower shall indemnify and hold harmless each Agent-Related Person, each
Lender and their respective Affiliates, directors, officers, employees, counsel,
agents and attorneys-in-fact (collectively the "Indemnitees") from and against
any and all liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time be
imposed on, incurred by or asserted against any such Indemnitee in any way
relating to or arising out of or in connection with (a) the execution, delivery,
enforcement, performance or administration of any Loan Document or any other
agreement, letter or instrument delivered in connection with the transactions
contemplated thereby or the consummation of the transactions contemplated
thereby, (b) any Commitment or Loan or the use or proposed use of the proceeds
therefrom, or (c) any actual or alleged presence or release of Hazardous
Materials on or from any property currently or formerly owned or operated by the
Borrower, any Consolidated Entity or any other Loan Party, or any Environmental
Liability related in any way to the Borrower, any Consolidated Entity or any
other Loan Party, or (d) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee. No Indemnitee
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, nor shall
any Indemnitee have any liability for any indirect or consequential damages
relating to this Agreement or any other Loan Document or arising out of its
activities in connection herewith or therewith (whether before or
73
after the Closing Date). All amounts due under this Section 10.05 shall be
payable within ten Business Days after demand therefor. The agreements in this
Section shall survive the resignation of the Administrative Agent, the
replacement of any Lender, the termination of the Aggregate Commitments and the
repayment, satisfaction or discharge of all the other Obligations.
10.06 PAYMENTS SET ASIDE.
To the extent that any payment by or on behalf of the Borrower is made to
the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to
time in effect.
10.07 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section, or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this Section
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); provided that any such assignment shall be subject to the
following conditions:
(i) Minimum Amounts.
74
(A) in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the
time owing to it or in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund, no minimum amount need
be assigned; and
(B) in any case not described in subsection (b)(i)(A) of
this Section, the aggregate amount of the Commitment (which for
this purpose includes Loans outstanding thereunder) or, if the
Commitment is not then in effect, the principal outstanding
balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be
less than $10,000,000 unless each of the Administrative Agent
and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent
not to be unreasonably withheld or delayed); provided, however,
that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a
single assignee (or to an assignee and members of its Assignee
Group) will be treated as a single assignment for purposes of
determining whether such minimum amount has been met.
(ii) Proportionate Amounts. Each partial assignment shall be made
as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement with respect to the Loans
or the Commitment assigned;
(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of
this Section and, in addition:
(A) the consent of the Borrower (such consent not to be
unreasonably withheld or delayed) shall be required unless (1) an
Event of Default has occurred and is continuing at the time of
such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund (unless the addition of
such Lender, Affiliate of Lender or Approved Fund will, as of the
effective date of such assignment, make the Borrower liable for
payment of additional amounts under Article III hereof that are
not otherwise payable to the assignor); and
(B) the consent of the Administrative Agent (such consent
not to be unreasonably withheld or delayed) shall be required if
such assignment is to a Person that is not a Lender, an Affiliate
of such Lender or an Approved Fund with respect to such Lender.
(iv) Assignment and Assumption. The parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee in the
amount, if any, required as set forth in Schedule 10.07; provided,
however, that the Administrative Agent
75
may, in its sole discretion, elect to waive such processing and
recordation fee in the case of any assignment. The assignee, if it is
not a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
(v) No Assignment to Borrower. No such assignment shall be made
to the Borrower or any of the Borrower's Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall
be made to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, 10.04 and 10.05
with respect to facts and circumstances occurring prior to the effective date of
such assignment). Upon request and return of a Note being replaced, cancelled or
marked replaced, the Borrower (at its expense) shall execute and deliver a Note
to the assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (d)
of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower,
at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations
76
under this Agreement. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification that would (i)
postpone any date upon which any payment of money is scheduled to be paid to
such Participant, (ii) reduce the principal, interest, fees or other amounts
payable to such Participant, or (iii) release any Guarantor from the Guaranty to
which it is a party. Subject to subsection (e) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 3.01,
3.04 and 3.05 to the same extent (and subject to the same conditions and
limitations) as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.09 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.13 as
though it were a Lender.
(e) Limitations Upon Participant Rights. Except to the extent the sale of a
participation to a particular Participant has been approved in writing by the
Borrower, a Participant shall be entitled to receive payments under or pursuant
to Section 3.01 or 3.04 only to the extent that the applicable Lender (taking
into account the particular circumstances surrounding the Loans made by such
Lender and the applicability of tax withholding and similar laws and regulations
with respect to such Lender) is or would, upon such Lender's request or demand
for payment pursuant to Section 3.01 or 3.04, be entitled to any such payments.
Any claim for compensation made by a Participant of a Lender shall be deemed a
claim made by the applicable Lender for purposes of initiating the Borrower's
rights under Sections 3.06(b) and 10.16 of this Agreement. Subject to the
preceding provisions of this clause (e), a Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 10.15 as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable Law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York Electronic Signatures and Records Act, or
any other similar state Laws based on the Uniform Electronic Transactions Act.
(h) Defined Terms. As used herein, the following terms have the following
meanings:
77
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent (such approval not to be
unreasonably withheld or delayed), and (ii) unless an Event of Default has
occurred and is continuing, the Borrower (such approval not to be
unreasonably withheld or delayed); provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include the Borrower or any of the
Borrower's Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its
business.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
10.08 CONFIDENTIALITY.
Each of the Administrative Agent and the Lenders for themselves, their
Affiliates and Agent Related Persons, agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its Affiliates' respective partners, directors,
officers, employees, agents, advisors and representatives who need to know the
Information in connection with the transactions contemplated by the Agreement
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential) and who will use such Information only in
connection with the transactions contemplated by the Agreement; (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it; (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, provided that prior to making any such
disclosure (other than to a banking regulator or auditor), such Person shall
endeavor in the ordinary course of business to promptly notify the Borrower in
writing so that the Borrower may seek an appropriate protective order
(notwithstanding the foregoing, should such Person fail to notify Borrower, such
person shall have no liability to Borrower or any other Credit Party); (d) to
any other party to this Agreement; (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder; (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any Eligible
Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any direct or indirect contractual counterparty or prospective counterparty (or
such contractual counterparty's or prospective counterparty's professional
advisor) to any credit derivative transaction relating to obligations of the
Loan Parties; (g) with the consent of the Borrower; (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than the Borrower; or (i) to the
National Association of Insurance Commissioners or any other similar
organization having jurisdiction over such Lender. In addition, the
Administrative Agent and the Lenders may disclose the existence of this
Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the
Administrative Agent and the Lenders in connection with the administration and
management of this Agreement, the other Loan Documents, the
78
Commitments, and the Borrowings. For the purposes of this Section, "Information"
means all information received from the Borrower or any of its Consolidated
Entities relating to the Borrower or any Combined Entity or Investment Entity or
any of their respective businesses, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis
as described above prior to disclosure by the Borrower or any Combined Entity or
Investment Entity; provided that, in the case of information received from the
Borrower or any Combined Party after the date hereof, except as expressly noted
thereon, all financial information or other information relating to any proposed
transactions of the Borrower, any Combined Party, any Investment Entity or any
of the Borrower's Affiliates shall be considered confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
10.09 SET-OFF.
In addition to any rights and remedies of the Lenders provided by law, upon
the occurrence and during the continuance of any Event of Default after
obtaining the prior written consent of the Administrative Agent, each Lender is
authorized at any time and from time to time, without prior notice to the
Borrower or any other Loan Party, any such notice being waived by the Borrower
(on its own behalf and on behalf of each Loan Party) to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of the respective Loan Parties, and each Loan Party hereby grants a
security interest in all such deposits and indebtedness to the Administrative
Agent for the benefit of the Administrative Agent and the Lenders, against any
and all Obligations owing to such Lender hereunder or under any other Loan
Document, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any other Loan Document and although such Obligations may be contingent or
unmatured or denominated in a currency different from that of the applicable
deposit or indebtedness. Each Lender agrees promptly to notify the Borrower and
the Administrative Agent after any such set-off and application made by such
Lender; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application.
10.10 INTEREST RATE LIMITATION.
Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the
"Maximum Rate"). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the
79
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or
unequal parts the total amount of interest throughout the contemplated term of
the Obligations hereunder.
10.11 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
10.12 INTEGRATION.
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or remedies in
favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was
drafted with the joint participation of the respective parties thereto and shall
be construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Borrowing (unless such notice has been received
from the Borrower in writing), and shall continue in full force and effect as
long as any Loan or any other Obligation hereunder shall remain unpaid or
unsatisfied.
10.14 SEVERABILITY.
If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
10.15 TAX FORMS.
(a) (i) Each Lender that is not a "United States person" within the meaning
of Section 7701(a)(30) of the Code (a "Foreign Lender") shall deliver to the
Administrative Agent, prior to receipt of any payment subject to withholding
under the Code (or upon accepting an
80
assignment of an interest herein), two duly signed completed copies of either
IRS Form W-8BEN or any successor thereto (relating to such Foreign Lender and
entitling it to an exemption from, or reduction of, withholding tax on all
payments to be made to such Foreign Lender by the Borrower pursuant to this
Agreement) or IRS Form W-8ECI or any successor thereto (relating to all payments
to be made to such Foreign Lender by the Borrower pursuant to this Agreement) or
such other evidence satisfactory to the Borrower and the Administrative Agent
that such Foreign Lender is entitled to an exemption from, or reduction of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of the Code.
Thereafter and from time to time, each such Foreign Lender shall (A) promptly
submit to the Administrative Agent such additional duly completed and signed
copies of one of such forms (or such successor forms as shall be adopted from
time to time by the relevant United States taxing authorities) as may then be
available under then current United States laws and regulations to avoid, or
such evidence as is satisfactory to the Borrower and the Administrative Agent of
any available exemption from or reduction of, United States withholding taxes in
respect of all payments to be made to such Foreign Lender by the Borrower
pursuant to this Agreement, (B) promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (C) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws that the Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases
to act for its own account with respect to any portion of any sums
paid or payable to such Lender under any of the Loan Documents (for
example, in the case of a typical participation by such Lender), shall
deliver to the Administrative Agent on the date when such Foreign
Lender ceases to act for its own account with respect to any portion
of any such sums paid or payable, and at such other times as may be
necessary in the determination of the Administrative Agent (in the
reasonable exercise of its discretion), (A) two duly signed completed
copies of the forms or statements required to be provided by such
Lender as set forth above, to establish the portion of any such sums
paid or payable with respect to which such Lender acts for its own
account that is not subject to U.S. withholding tax, and (B) two duly
signed completed copies of IRS Form W-8IMY (or any successor thereto),
together with any information such Lender chooses to transmit with
such form, and any other certificate or statement of exemption
required under the Code, to establish that such Lender is not acting
for its own account with respect to a portion of any such sums payable
to such Lender.
(iii) The Borrower shall not be required to pay any additional
amount to any Foreign Lender under Section 3.01 (A) with respect to
any Taxes required to be deducted or withheld on the basis of the
information, certificates or statements of exemption such Lender
transmits with an IRS Form W-8IMY pursuant to this Section 10.15(a) or
(B) if such Lender shall have failed to satisfy the foregoing
provisions of this Section 10.15(a); provided that if such Lender
shall have satisfied the requirement of this Section 10.15(a) on the
date such Lender became a Lender or ceased to act for its own account
with respect to any
81
payment under any of the Loan Documents, nothing in this Section
10.15(a) shall relieve the Borrower of its obligation to pay any
amounts pursuant to Section 3.01 in the event that, as a result of any
change in any applicable law, treaty or governmental rule, regulation
or order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly entitled to
deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account
of which such Lender receives any sums payable under any of the Loan
Documents is not subject to withholding or is subject to withholding
at a reduced rate.
(iv) The Administrative Agent may, without reduction, withhold
any Taxes required to be deducted and withheld from any payment under
any of the Loan Documents with respect to which the Borrower is not
required to pay additional amounts under this Section 10.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two duly signed completed copies of
IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
(c) If any Governmental Authority asserts that the Administrative Agent did
not properly withhold or backup withhold, as the case may be, any tax or other
amount from payments made to or for the account of any Lender, such Lender shall
indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses (including
Attorney Costs) of the Administrative Agent. The obligation of the Lenders under
this Section shall survive the termination of the Aggregate Commitments,
repayment of all other Obligations hereunder and the resignation of the
Administrative Agent.
10.16 REPLACEMENT OF LENDERS.
Under any circumstances set forth herein providing that the Borrower shall
have the right to replace a Lender as a party to this Agreement, the Borrower
may, upon notice to such Lender and the Administrative Agent, replace such
Lender by causing such Lender to assign its Commitment (with the assignment fee
to be paid by the Borrower in such instance) pursuant to Section 10.07(b) to one
or more other Lenders or Eligible Assignees procured by the Borrower; provided,
however, that if the Borrower elects to exercise such right with respect to any
Lender pursuant to Section 3.06(b), it shall be obligated to replace all Lenders
that have made similar requests for compensation pursuant to Section 3.01 or
3.04. Upon the making of any such assignment, the Borrower shall pay in full all
interest, fees and other amounts owing to such Lender through the date of
replacement (including any amounts payable pursuant to Section 3.05).
82
10.17 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF GEORGIA APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXXXXXX
SITTING IN XXXXXX COUNTY OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
BORROWER, THE GUARANTORS, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH OF THE BORROWER, THE GUARANTORS, THE ADMINISTRATIVE AGENT AND
EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY CREDIT DOCUMENT OR OTHER DOCUMENT RELATED
THERETO. EACH OF THE BORROWER, THE GUARANTORS, THE ADMINISTRATIVE AGENT AND EACH
LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
10.18 WAIVER OF RIGHT TO TRIAL BY JURY.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.19 NO ADVISORY OR FIDUCIARY RESPONSIBILITY. In connection with all
aspects of each transaction contemplated hereby, the Borrower and each other
Loan Party acknowledges and agrees, and acknowledges its Affiliates'
understanding, that: (i) the credit facility provided for hereunder and any
related arranging or other services in connection therewith (including in
connection with any amendment, waiver or other modification hereof or of any
other Loan
83
Document) are an arm's-length commercial transaction between the Borrower, each
other Loan Party and their respective Affiliates, on the one hand, and the
Administrative Agent and the Arranger, on the other hand, and the Borrower and
each other Loan Party is capable of evaluating and understanding and understands
and accepts the terms, risks and conditions of the transactions contemplated
hereby and by the other Loan Documents (including any amendment, waiver or other
modification hereof or thereof); (ii) in connection with the process leading to
such transaction, the Administrative Agent and the Arranger each is and has been
acting solely as a principal and is not the financial advisor, agent or
fiduciary, for the Borrower, any other Loan Party or any of their respective
Affiliates, stockholders, creditors (other than acting as Administrative Agent
for the Lenders hereunder) or employees or any other Person; (iii) neither the
Administrative Agent nor the Arranger has assumed or will assume an advisory,
agency or fiduciary responsibility in favor of the Borrower or any other Loan
Party with respect to any of the transactions contemplated hereby or the process
leading thereto, including with respect to any amendment, waiver or other
modification hereof or of any other Loan Document (irrespective of whether the
Administrative Agent or the Arranger has advised or is currently advising the
Borrower, any other Loan Party or any of their respective Affiliates on other
matters) and neither the Administrative Agent nor the Arranger has any
obligation to the Borrower, any other Loan Party or any of their respective
Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan Documents; (iv) the
Administrative Agent and the Arranger and their respective Affiliates may be
engaged in a broad range of transactions that involve interests that differ from
those of the Borrower, the other Loan Parties and their respective Affiliates,
and neither the Administrative Agent nor the Arranger has any obligation to
disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Administrative Agent and the Arranger have not
provided and will not provide any legal, accounting, regulatory or tax advice
with respect to any of the transactions contemplated hereby (including any
amendment, waiver or other modification hereof or of any other Loan Document)
and each of the Borrower and the other Loan Parties has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate.
Each of the Borrower and the other Loan Parties hereby waives and releases, to
the fullest extent permitted by law, any claims that it may have against the
Administrative Agent and the Arranger with respect to any breach or alleged
breach of agency or fiduciary duty.
10.20 USA PATRIOT ACT NOTICE.
Each Lender and the Administrative Agent (for itself and not on behalf of
any Lender) hereby notifies Borrower that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Act"), it is required to obtain, verify and record information that
identifies Borrower, which information includes the name and address of Borrower
and other information that will allow such Lender or the Administrative Agent,
as applicable, to identify Borrower in accordance with the Act.
10.21 ATTORNEYS' FEES.
As used in this Agreement and in the other Loan Documents, "reasonable"
attorneys' fees of the Administrative Agent's, any Lender's or any other
Person's counsel shall mean the actual fees of such Person's counsel billed at
standard hourly rates of such counsel, rather than a percentage of principal and
interest as provided in O.C.G.A. section 13-1-11(a)(2).
84
ARTICLE XI
GUARANTY
11.01 THE GUARANTY.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Swap Contract with respect
to the Loans, and the Administrative Agent as hereinafter provided, as primary
obligor and not as surety, the prompt payment of the Obligations in full when
due after the expiration of all applicable grace or cure periods (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms thereof.
The Guarantors hereby further agree that if any of the Obligations are not paid
in full when due after the expiration of all applicable grace or cure periods
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever
(except for such notices as may be specifically required by the terms of the
Loan Documents), and that in the case of any extension of time of payment or
renewal of any of the Obligations, the same will be promptly paid in full when
due after the expiration of all applicable grace or cure periods (whether at
extended maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) in accordance with the terms of such
extension or renewal.
Notwithstanding any provision to the contrary contained herein or in any
other of the Loan Documents or Swap Contracts entered into in connection with
the Loans, the obligations of each Guarantor under this Agreement and the other
Loan Documents shall be limited to an aggregate amount equal to the largest
amount that would not render such obligations subject to avoidance under the
Debtor Relief Laws or any comparable provisions of any applicable state law.
11.02 OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors under Section 11.01 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Loan Documents or Swap
Contracts entered into in connection with the Loans, or any other agreement or
instrument referred to therein, or any substitution, release, impairment or
exchange of any other guarantee of or security for any of the Obligations, and,
to the fullest extent permitted by applicable law, irrespective of any other
circumstance (other than payment) whatsoever which might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor, it being the
intent of this Section 11.02 that the obligations of the Guarantors hereunder
shall be absolute and unconditional under any and all circumstances. Each
Guarantor agrees that such Guarantor shall have no right of subrogation,
indemnity, reimbursement or contribution against the Borrower or any other
Guarantor for amounts paid under this Article XI until such time as the
Obligations have been Fully Satisfied. Without limiting the generality of the
foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder which shall remain absolute and
unconditional as described above:
85
(a) at any time or from time to time, without notice to any Guarantor, the
time for any performance of or compliance with any of the Obligations shall be
extended, or such performance or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of any of the Loan
Documents, any Swap Contract entered into in connection with the Loans between
any Consolidated Party and any Lender, or any Affiliate of a Lender, or any
other agreement or instrument referred to in the Loan Documents or such Swap
Contracts shall be done or omitted;
(c) the maturity of any of the Obligations shall be accelerated, or any of
the Obligations shall be modified, supplemented or amended in any respect, or
any right under any of the Loan Documents, any Swap Contract entered into in
connection with the Loans between any Consolidated Party and any Lender, or any
Affiliate of a Lender, or any other agreement or instrument referred to in the
Loan Documents or such Swap Contracts shall be waived or any other guarantee of
any of the Obligations or any security therefor shall be released, impaired or
exchanged in whole or in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the Administrative Agent or any
Lender or Lenders as security for any of the Obligations shall fail to attach or
be perfected; or
(e) any of the Obligations shall be determined to be void or voidable
(including, without limitation, for the benefit of any creditor of any
Guarantor) or shall be subordinated to the claims of any Person (including,
without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever except as required by the Loan Documents, and any requirement that
the Administrative Agent or any Lender exhaust any right, power or remedy or
proceed against any Person under any of the Loan Documents, any Swap Contract
entered into in connection with the Loans between any Consolidated Party and any
Lender, or any Affiliate of a Lender, or any other agreement or instrument
referred to in the Loan Documents or such Swap Contracts, or against any other
Person under any other guarantee of, or security for, any of the Obligations.
11.03 REINSTATEMENT.
The obligations of the Guarantors under this Article XI shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Lender
within fifteen (15) days of demand for all reasonable costs and expenses
(including, without limitation, fees and expenses of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
86
11.04 CERTAIN ADDITIONAL WAIVERS.
Each Guarantor further agrees that such Guarantor shall have no right of
recourse to security for the Obligations, except through the exercise of rights
of subrogation pursuant to Section 11.02 and through the exercise of rights of
contribution pursuant to Section 11.06.
11.05 REMEDIES.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, the Obligations may be declared to be forthwith due
and payable as provided in Section 8.02 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section
8.02) for purposes of Section 11.01 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing the Obligations
from becoming automatically due and payable) as against any other Person and
that, in the event of such declaration (or the Obligations being deemed to have
become automatically due and payable), the Obligations (whether or not due and
payable by any other Person) shall forthwith become due and payable by the
Guarantors for purposes of Section 11.01. The Guarantors acknowledge and agree
that to the extent their obligations hereunder become secured, the Lenders may
exercise their remedies thereunder in accordance with the terms of the
applicable security documents.
11.06 RIGHTS OF CONTRIBUTION.
The Guarantors hereby agree as among themselves that, in connection with
payments made hereunder, each Guarantor shall have a right of contribution from
each other Guarantor in accordance with applicable Law. Such contribution rights
shall be subordinate and subject in right of payment to the Obligations until
such time as the Obligations have been Fully Satisfied, and none of the
Guarantors shall exercise any such contribution rights until the Obligations
have been Fully Satisfied.
11.07 GUARANTEE OF PAYMENT; CONTINUING GUARANTEE.
The guarantee in this Article XI is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Obligations
whenever arising.
87
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
BORROWER: COUSINS PROPERTIES INCORPORATED, a
Georgia corporation
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
GUARANTORS: CARRIAGE AVENUE, LLC,
a Delaware limited liability company
By: Cousins Properties Incorporated,
as managing member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
COUSINS TEXAS LLC, a Georgia limited
liability company
By: Cousins Properties Incorporated,
as managing member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
[signature pages continued]
CREC PROPERTY HOLDINGS LLC, Delaware
limited liability company
By: Cousins Real Estate Corporation,
a Georgia corporation, its
Manager and sole member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
COUSINS AIRCRAFT ASSOCIATES, LLC
COUSINS WATERVIEW LLC
COUSINS WATERVIEW GP LLC,
each a Georgia limited liability company
By: Cousins Properties Incorporated,
as sole member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
[signature pages continued]
CEDAR GROVE LAKES, LLC
NEW LAND REALTY, LLC
PINE MOUNTAIN VENTURES, LLC,
each a Georgia limited liability company
By: Cousins Real Estate Corporation,
as sole member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
COUSINS AUSTIN GP, INC.
COUSINS AUSTIN, INC.
COUSINS PROPERTIES SERVICES, INC.
COUSINS REAL ESTATE CORPORATION
COUSINS TEXAS GP INC.
CREC ALABAMA INC.
CS TEXAS INC.,
each a Georgia corporation
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
[signature pages continued]
COUSINS/XXXXXX, LLC, a Georgia limited
liability company
By: Cousins, Inc., as managing member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
COUSINS, INC., an Alabama corporation
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
COUSINS PROPERTIES SERVICES LP,
a Texas limited partnership
By: Cousins Properties Services, Inc.,
as general partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
COUSINS PROPERTIES TEXAS LP,
a Texas limited partnership
By: Cousins Texas GP Inc.,
as general partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
[signature pages continued]
COUSINS PROPERTIES WATERVIEW LP,
a Texas limited partnership
By: Cousins Waterview GP LLC,
as general partner
By: Cousins Properties Incorporated,
as sole member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name:Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
[signature pages continued]
3280 PEACHTREE I LLC,
a Georgia limited liability company
By: Cousins Properties Incorporated,
a Georgia Corporation, Its
Manager and sole Member:
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
3280 PEACHTREE II LLC,
a Georgia limited liability company
By: Cousins Properties Incorporated,
a Georgia Corporation, Its
Manager and sole Member:
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
COUSINS KING MILL, LLC,
a Georgia limited liability company
By: Cousins Properties Incorporated,
a Georgia corporation, its
sole member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
[signature pages continued]
COUSINS SAN XXXX MARKET CENTER LLC,
Georgia limited liability company
By: Cousins Properties Incorporated, a
Georgia corporation, its Manager and
sole member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
COUSINS LA FRONTERA GP, LLC, a Georgia
limited liability company
By: Cousins Properties Incorporated, a
Georgia corporation, its Manager and
sole member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
COUSINS LA FRONTERA INVESTOR, LLC, a
Georgia limited liability company
By: Cousins Properties Incorporated, a
Georgia corporation, its Manager and
sole member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
[signature pages continued]
COUSINS LA FRONTERA LP, a Texas limited
partnership
By: Cousins La Frontera GP, LLC, a
Georgia limited liability company,
its General Partner
By: Cousins Properties Incorporated, a
Georgia corporation, its Manager and
sole member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
AVENUE XXXX XXX LLC, a Georgia limited
liability company
By: Cousins Properties Incorporated, a
Georgia corporation, its Manager and
sole member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
COUSINS CONDOMINIUM DEVELOPMENT, LLC, a
Georgia limited liability
company
By: Cousins Real Estate Corporation, a
Georgia corporation, its Manager and
sole member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
[signature pages continued]
KING MILL PROJECT I LLC, a Georgia
limited liability company
By: C/W King Mill I, LLC, a Georgia
limited liability company, its sole
member
By: Cousins Properties Incorporated, a
Georgia corporation, its managing
member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
COUSINS PROPERTIES PALISADES GP,LLC, a
Georgia limited liability company
By: Cousins Properties Incorporated, a
Georgia Corporation, its Manager
and Sole Member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
COUSINS PROPERTIES PALISADES, LP, a
Texas limited partnership
By: Cousins Properties Palisades GP,
LLC, a Georgia limited liability
company, its General Partner
By: Cousins Properties Incorporated, a
Georgia Corporation, its Manager
and Sole Member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
[signature pages continued]
COUSINS PROPERTIES PALISADES INVESTOR,
LLC, a Georgia limited liability company
By: Cousins Properties Incorporated, a
Georgia Corporation, its Manager
and Sole Member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
COUSINS JEFFERSON MILL, LLC a Georgia
limited liability company
By: Cousins Properties Incorporated, a
Georgia Corporation, its Manager
and Sole Member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
C/W KING MILL I, LLC, a Georgia limited
liability company
By: Cousins Properties Incorporated, a
Georgia Corporation, its managing
member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
[signature pages continued]
LENDERS/AGENTS:
BANK OF AMERICA, N.A.,
individually in its capacity as a Lender
and as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
[signature pages continued]
COMMERZBANK AG NEW YORK AND GRAND CAYMAN
BRANCHES
individually in its capacity as
a Lender and as Syndication Agent
By: /s/ Xxxxx Xxxxxxx/Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx/Xxxxxxx Xxxxx
Title: Vice President/
Assistant Vice President
[signature pages continued]
PNC BANK, NA
individually in its capacity as a Lender
and as Documentation Agent
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President
[signature pages continued]
XXXXX FARGO BANK, NATIONAL ASSOCIATION
individually in its capacity as a Lender
and as Documentation Agent
By: /s/ X. Xxxxxxx Xxxxxx
------------------------------------
Name: X. Xxxxxxx Xxxxxx
Title: Senior Vice President
[signature pages continued]
WACHOVIA BANK, NATIONAL ASSOCIATION
individually in its capacity as a Lender
and as Managing Agent
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
[signature pages continued]
EMIGRANT BANK
individually in its capacity as a Lender
By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Senior EVP
[signature pages continued]
THE NORTHERN TRUST COMPANY
individually in its capacity as a Lender
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
[signature pages continued]
U.S. BANK, NATIONAL ASSOCIATION
individually in its capacity as a Lender
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
[signature pages continued]
BRANCH BANKING AND TRUST COMPANY
individually in its capacity as a Lender
By: /s/ XxXxx X. Xxxxxxx
------------------------------------
Name: XxXxx X. Xxxxxxx
Title: Vice President
EXHIBIT A
FORM OF LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Construction Facility Credit Agreement,
dated as of March 7, 2006 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Cousins Properties
Incorporated, a Georgia corporation (the "Borrower"), the Lenders from time to
time party thereto, the Guarantors from time to time party thereto and Bank of
America, N.A., as Administrative Agent.
The undersigned hereby requests (select one):
[ ] A Borrowing [ ] A conversion or continuation of Loans
1. On______________________(a Business Day).
2. In the amount of $____________________.
3. Comprised of__________________________.
[Type of Loan requested]
4. For Eurodollar Rate Loans: with an Interest Period of_____months.
The Borrowing, if any, requested herein complies with clauses (a), (b) and
(c) of the proviso to the first sentence of Section 2.01 of the Agreement. The
supplemental information (if any) attached hereto is hereby added to Schedule(s)
5.06, 5.09 and 5.17 (as applicable) of the Agreement.
After giving effect to the Borrowing requested herein, if any, the
Outstanding Amount is less than or equal to sixty percent (60.0%) of all
Eligible Costs, as shown on Schedule 1 attached hereto. The information set
forth on Schedule 1 attached hereto is accurate on and as of the date of this
Loan Notice and correctly and fairly details, as of such date, all Eligible
Costs incurred to date, the Outstanding Amount and the Eligible Costs to be paid
in the current month.
COUSINS PROPERTIES INCORPORATED
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
A-1
Form of Loan Notice
SCHEDULE 1 TO LOAN NOTICE
Construction Facility Draw Request
Date:_____________
A GAAP Cost end of prior month Summary report attached
B 60% of GAAP Cost end of prior month $ - Maximum Borrowings end of prior month
C Borrowings outstanding end of prior month detail attached
D additional borrowing current month $ - C-D
E Current month Vendor payments see attached list
F Total Current month draw -
A-2
Form of Loan Notice
EXHIBIT B
FORM OF NOTE
___________________
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to
pay to the order of _____________________ or registered assigns (the "Lender"),
in accordance with the provisions of the Agreement (as hereinafter defined), the
principal amount of each Loan from time to time made by the Lender to the
Borrower under that certain Construction Facility Credit Agreement, dated as of
March 7, 2006 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among the Borrower, the Lenders
from time to time party thereto, the Guarantors from time to time party thereto,
and Bank of America, N.A., as Administrative Agent.
The Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the Agreement. All
payments of principal and interest shall be made to the Administrative Agent for
the account of the Lender in Dollars in immediately available funds at the
Administrative Agent's Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid as provided in the
Agreement, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the per annum rate set forth in
the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms
and conditions provided therein. Upon the occurrence and continuation of one or
more of the Events of Default specified in the Agreement, all amounts then
remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of its
Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
B-1
Form of Note
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF GEORGIA.
COUSINS PROPERTIES INCORPORATED
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
B-2
Form of Note
LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
PRINCIPAL OR OUTSTANDING
END OF INTEREST PRINCIPAL
TYPE OF AMOUNT OF INTEREST PAID THIS BALANCE NOTATION
DATE LOAN MADE LOAN MADE PERIOD DATE THIS DATE MADE BY
---- --------- --------- -------- ------------ ----------- --------
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
____ _________ _________ ________ ____________ ___________ ________
B-3
Form of Note
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date:___________,
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Construction Facility Credit Agreement,
dated as of March 7, 2006 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Cousins Properties
Incorporated, a Georgia corporation (the "Borrower"), the Lenders from time to
time party thereto, the Guarantors from time to time party thereto and Bank of
America, N.A., as Administrative Agent.
The undersigned Responsible Officer hereby certifies as of the date hereof
that he/she is the ___________________ of the Borrower, and that, as such,
he/she is authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of the Borrower, and that:
[Use following paragraph 1 for calendar YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 6.01(a) of the Agreement for the calendar year of
the Borrower ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.
[Use following paragraph 1 for calendar QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 6.01(b) of the Agreement for the calendar quarter of the
Borrower ended as of the above date. Such financial statements fairly present
the financial condition, results of operations and cash flows of the Borrower
and the Consolidated Entities in accordance with GAAP as at such date and for
such period, subject only to normal year-end audit adjustments and the absence
of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Borrower during the accounting period covered by the attached financial
statements.
3. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the activities of the Borrower during such calendar period
and such review has been undertaken with a view to determining whether during
such calendar period the Borrower performed and observed all its Obligations
under the Loan Documents, and
C-1
Form of Compliance Certificate
[SELECT ONE:]
[TO THE BEST KNOWLEDGE OF THE UNDERSIGNED DURING SUCH CALENDAR PERIOD, THE
BORROWER PERFORMED AND OBSERVED EACH COVENANT AND CONDITION OF THE LOAN
DOCUMENTS APPLICABLE TO IT.]
--OR--
[THE FOLLOWING COVENANTS OR CONDITIONS HAVE NOT BEEN PERFORMED OR OBSERVED
AND THE FOLLOWING IS A LIST OF EACH SUCH DEFAULT AND ITS NATURE AND STATUS:]
4. The representations and warranties of the Loan Parties contained in
Article V or any other Loan Document, or which are contained in any document
furnished at any time under this Agreement, are true and correct in all material
respects on and as of the date hereof, except to the extent of changes resulting
from matters permitted under the Loan Documents or other changes in the ordinary
course of business not having a Material Adverse Effect, and except to the
extent that such representations and warranties specifically refer to an earlier
date, in which case they shall be true and correct as of such earlier date, and
except that for purposes of this Compliance Certificate, (a) the representations
and warranties contained in subsections (a) and (b) of Section 5.05 of the
Agreement shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Agreement,
including the statements in connection with which this Compliance Certificate is
delivered; (b) Schedule(s) 5.06, 5.09, 5.13 and 5.17 (as applicable) of the
Agreement are deemed to include any supplemental information thereto provided in
any Compliance Certificate or Loan Notice delivered prior to the date hereof and
the supplemental information (if any) attached hereto.
5. The financial covenant analyses and information set forth on Schedule 2
and Schedule 3 attached hereto are true and accurate on and as of the date of
this Certificate.
6. Schedule 4 attached hereto sets forth (i) a calculation of the
Borrower's Consolidated Leverage Ratio as of the end of the preceding taxable
year and (ii) all Restricted Payments made by the Borrower during the current
taxable year pursuant to Section 7.06(a) of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of______________________, __________________
COUSINS PROPERTIES INCORPORATED
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-2
Form of Compliance Certificate
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 2
C-3
Form of Compliance Certificate
EXHIBIT D
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[the] [each](1) Assignor identified in item 1 below ([the] [each, an]
"Assignor") and [the] [each](2) Assignee identified in item 2 below ([the]
[each, an] "Assignee"). [It is understood and agreed that the rights and
obligations of [the Assignors] [the Assignees](3) hereunder are several and not
joint.(4) Capitalized terms used but not defined herein shall have the meanings
given to them in the Credit Agreement identified below (the "Credit Agreement"),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to
and incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For an agreed consideration, [the] [each] Assignor hereby irrevocably sells
and assigns to [the Assignee] [the respective Assignees], and [the] [each]
Assignee hereby irrevocably purchases and assumes from [the Assignor] [the
respective Assignors], subject to and in accordance with the Standard Terms and
Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor's] [the
respective Assignor's] rights and obligations in [its capacity as a Lender]
[their respective capacities as Lenders] under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of [the Assignor] [the respective Assignors]
under the respective facilities identified below and (ii) to the extent
permitted to be assigned under applicable law, all claims, suits, causes of
action and any other right of [the Assignor (in its capacity as a Lender)] [the
respective Assignors (in their respective capacities as Lenders)] against any
Person, whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of
the foregoing, including, but not limited to, contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned by [the] [any] Assignor to
[the] [any] Assignee pursuant to clauses (i) and (ii) above being referred to
herein collectively as, [the] [an] "Assigned Interest"). Each such sale and
assignment is without recourse to [the] [any] Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty
by [the] [any] Assignor.
----------
(1) For bracketed language here and elsewhere in this form relating to the
Assignor(s), if the assignment if from a single Assignor, choose the first
bracketed language. If the assignment is from multiple Assignors, choose
the second bracketed language.
(2) For bracketed language here and elsewhere in this form relating to the
Assignee(s), if the assignment is to a single Assignee, choose the first
bracketed language. If the assignment is to multiple Assignees, choose the
second bracketed language.
(3) Select as appropriate.
(4) Include bracketed language if there are either multiple Assignors or
multiple Assignees.
D-1
1. Assignor[s]: ______________________________
2. Assignee[s]: ______________________________ [for each Assignee,
indicate [Affiliate] [Approved Fund] of [identify
Lender]]
3. Borrower: Cousins Properties Incorporated
4. Administrative Agent: Bank of America, N.A., as the administrative agent
under the Credit Agreement
5. Credit Agreement: The Construction Facility Credit Agreement, dated as of
March 7, 2006, among Cousins Properties Incorporated,
the Lenders parties thereto, the Guarantors parties
thereto and Bank of America, N.A., as Administrative
Agent
6. Assigned Interest[s]:
Aggregate
Amount of Amount of Percentage
Commitment/ Commitment/ Assigned of
Facility Loans for Loans Commitment/ CUSIP
Assignor[s](5) Assignee[s](6) Assigned all Lenders* Assigned* Loans(7) Number
-------------- -------------- --------- ------------ ----------- ----------- ----------
_________(8) $__________ $__________ _________%
_________ $__________ $__________ _________%
[7. Trade Date: __________________](9)
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
------------------------------------
Title:
---------------------------------
----------
(5) List each Assignor, as appropriate.
(6) List each Assignee, as appropriate.
(7) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
(8) Fill in the appropriate terminology for the types of facilities under the
Credit Agreement that are being assigned under this Assignment.
(9) To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
D-2
ASSIGNEE
[NAME OF ASSIGNEE]
By:
------------------------------------
Title:
---------------------------------
[Consented to and] Accepted:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
---------------------------------
Title:
------------------------------
[Consented to:(10)
COUSINS PROPERTIES INCORPORATED
By:
---------------------------------
Title: ]
------------------------------
----------
(10) To be added only if the consent of the Borrower is required by the terms of
the Credit Agreement.
D-3
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. [The] [Each] Assignor (a) represents and warrants that
(i) it is the legal and beneficial owner of [the] [the relevant] Assigned
Interest, (ii) [the] [such] Assigned Interest is free and clear of any lien,
encumbrance or other adverse claim and (iii) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b)
assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2. Assignee. [The] [Each] Assignee (a) represents and warrants that
(i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all the requirements of an Eligible Assignee under the
Credit Agreement (subject to such consents, if any, as may be required under
Section 10.07(b)(iii) of the Credit Agreement), (iii) from and after the
Effective Date, it shall be bound by the provisions of the Credit Agreement as a
Lender thereunder and, to the extent of [the] [the relevant] Assigned Interest,
shall have the obligations of a Lender thereunder, (iv) it is sophisticated with
respect to decisions to acquire assets of the type represented by [the] [such]
Assigned Interest and either it, or the Person exercising discretion in making
its decision to acquired [the] [such] Assigned Interest, is experienced in
acquiring assets of such type, (v) it has received a copy of the Credit
Agreement, and has received or has been accorded the opportunity to receive
copies of the most recent financial statements delivered pursuant to Section
6.01 thereof, as applicable, and such other documents and information as it
deems appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase [the] [such] Assigned Interest,
(vi) it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Assignor and Assumption and to purchase [the] [such] Assigned Interest and (vii)
if it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by [the] [such] Assignee; and (b) agrees that (i) it will,
independently and without reliance upon the Administrative Agent, [the] [any]
Assignor or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the
D-4
Loan Documents, and (ii) it will perform in accordance with their terms all of
the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative
Agent shall make all payments in respect of [the] [each] Assigned interest
(including payments of principal, interest, fees and other amounts) to [the]
[the relevant] Assignor for amounts which have accrued to but excluding the
Effective Date and to [the] [the relevant] Assignee for amounts which have
accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of Georgia.
D-5
EXHIBIT E
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT (the "Agreement"), dated as of _____________,
20__, is by and between _____________________, a ___________________ (the
"Consolidated Entity"), and BANK OF AMERICA, N.A., in its capacity as
Administrative Agent under that certain Construction Facility Credit Agreement
(as it may be amended, modified, restated or supplemented from time to time, the
"Credit Agreement"), dated as of March 7, 2006, by and among Cousins Properties
Incorporated, a Georgia corporation (the "Borrower"), the Guarantors, the
Lenders and Bank of America, N.A., as Administrative Agent. All of the defined
terms in the Credit Agreement are incorporated herein by reference.
The Loan Parties are required by Section 6.12 of the Credit Agreement
to cause the Consolidated Entity to become a "Guarantor".
1. Accordingly, the Consolidated Entity hereby acknowledges, agrees
and confirms with the Administrative Agent, for the benefit of the Lenders, that
the Consolidated Entity, by its execution of this Agreement, will be deemed to
be a party to the Credit Agreement and a "Guarantor" for all purposes of the
Credit Agreement, and shall have all of the obligations of a Guarantor
thereunder as if it had executed the Credit Agreement. The Consolidated Entity
hereby ratifies, as of the date hereof, and agrees to be bound by, all of the
terms, provisions and conditions applicable to the Guarantors contained in the
Credit Agreement. Without limiting the generality of the foregoing terms of this
paragraph 1, the Consolidated Entity hereby jointly and severally together with
the other Guarantors, guarantees to each Lender and the Administrative Agent, as
provided in Article XI of the Credit Agreement, the prompt payment and
performance of the Obligations in full when due (whether at stated maturity, as
a mandatory prepayment, by acceleration or otherwise) strictly in accordance
with the terms thereof.
2. The address of the Consolidated Entity for purposes of all notices
and other communications is ____________________, ____________________________,
Attention of ______________ (Facsimile No. ____________).
3. The Consolidated Entity hereby waives acceptance by the
Administrative Agent and the Lenders of the guaranty by the Consolidated Entity
under Section 4 of the Credit Agreement upon the execution of this Agreement by
the Consolidated Entity.
4. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute one contract.
5. This Agreement shall be governed by and construed and interpreted
in accordance with the laws of the State of Georgia.
D-6
IN WITNESS WHEREOF, the Consolidated Entity has caused this Joinder
Agreement to be duly executed by its authorized officers, and the Administrative
Agent, for the benefit of the Lenders, has caused the same to be accepted by its
authorized officer, as of the day and year first above written.
[CONSOLIDATED ENTITY]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Acknowledged and accepted:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
D-7
