Exhibit 10.1
UNSECURED REVOLVING CREDIT AGREEMENT
DATED AS OF JANUARY 6, 1998
AMONG
GREAT LAKES REIT, L.P., AS BORROWER
AND
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
AND
THE FIRST NATIONAL BANK OF CHICAGO
AS LENDERS
AND
THE FIRST NATIONAL BANK OF CHICAGO
AS DOCUMENTATION AGENT
AND
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
AS ADMINISTRATIVE AGENT
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS..................................1
1.1 Definitions.....................................................1
1.2 Financial Standards.............................................5
ARTICLE II THE FACILITY.....................................................5
2.1 The Facility....................................................5
2.2 Principal Payments..............................................5
2.3 Requests for Advances: Responsibility for Advances..............5
2.4 Evidence of Credit Extensions...................................5
2.5 Ratable Loans...................................................5
2.6 Unused Commitment Fee...........................................5
2.7 Other Fees......................................................5
2.8 Minimum Amount of Each Advance..................................5
2.9 Interest........................................................5
2.10 Selection of Rate Options and LIBOR Interest Periods...........5
2.11 Method of Payment..............................................5
2.12 Default........................................................5
2.13 Lending Installations..........................................5
2.14 Non-Receipt of Funds by Administrative Agent...................5
2.15 Application of Moneys Received.................................5
2.16Voluntary Reduction of Aggregate Commitment Amount..............5
ARTICLE III INTENTIONALLY DELETED...........................................5
ARTICLE IV CHANGE IN CIRCUMSTANCES..........................................5
4.1 Yield Protection................................................5
4.2 Changes in Capital Adequacy Regulations.........................5
4.3 Availability of LIBOR Advances..................................5
4.4 Funding Indemnification.........................................5
4.5 Lender Statements; Survival of Indemnity........................5
ARTICLE V CONDITIONS PRECEDENT..............................................5
5.1 Conditions Precedent to Closing.................................5
5.2 Conditions Precedent to Subsequent Advances.....................5
ARTICLE VI REPRESENTATIONS AND WARRANTIES...................................5
6.1 Existence.......................................................5
6.2 Corporate/Partnership Powers....................................5
6.3 Power of Officers...............................................5
6.4 Government and Other Approvals..................................5
6.5 Solvency........................................................5
6.6 Compliance With Laws and Agreements.............................5
6.7 Enforceability of Agreement.....................................5
6.8 Title to Property...............................................5
6.9 Litigation......................................................5
6.10 Events of Default..............................................5
6.11 Investment Company Act of 1940.................................5
6.12 Public Utility Holding Company Act.............................5
6.13 Regulation U...................................................5
6.14 No Material Adverse Financial Change...........................5
6.15 Financial Information..........................................5
6.16 Factual Information............................................5
6.17 ERISA..........................................................5
6.18 Taxes..........................................................5
6.19 Environmental Matters..........................................5
6.20 Insurance......................................................5
6.21 No Brokers.....................................................5
6.22 No Violation of Usury Laws.....................................5
6.23 Not a Foreign Person...........................................5
6.24 No Trade Name..................................................5
6.25 Subsidiaries...................................................5
6.26 Properties.....................................................5
6.27 Relationship of the Borrower...................................5
6.28 No Side Deals..................................................5
ARTICLE VII FINANCIAL COVENANTS.............................................5
7.1 Minimum Consolidated Net Worth..................................5
7.2 Maximum Consolidated Leverage Ratio.............................5
7.3 Minimum Consolidated Interest Coverage Ratio....................5
7.4 Minimum Fixed Charge Coverage Ratio.............................5
7.5 Maximum Unencumbered Asset Coverage Ratio.......................5
7.6 Minimum Unencumbered Asset NOI to Unsecured Interest............5
7.7 Maximum Secured Debt to Gross Asset Value.......................5
7.8 Maximum Dividend Payout Ratio...................................5
ARTICLE VIII AFFIRMATIVE COVENANTS..........................................5
8.1 Notices.........................................................5
8.2 Financial Statements, Reports. Etc..............................5
8.3 Existence and Conduct of Operations.............................5
8.4 Maintenance of Properties.......................................5
8.5 Insurance.......................................................5
8.6 Payment of Obligations..........................................5
8.7 Compliance with Laws............................................5
8.8 Adequate Books..................................................5
8.9 ERISA...........................................................5
8.10 Maintenance of Status..........................................5
8.11 Use of Proceeds................................................5
8.12 Pre-Acquisition Environmental Investigations...................5
8.13 New Subsidiaries...............................................5
8.14 Distributions..................................................5
ARTICLE IX NEGATIVE COVENANTS...............................................5
9.1 Change in Business..............................................5
9.3 Change of Borrower Ownership....................................5
9.4 Use of Proceeds.................................................5
9.5 Transfers of Unencumbered Assets................................5
9.6 Liens...........................................................5
9.7 Regulation U....................................................5
9.8 Mergers and Dispositions........................................5
9.9 Negative Pledge.................................................5
9.10 Consolidated Secured Recourse Debt.............................5
ARTICLE X DEFAULTS..........................................................5
10.1 Nonpayment of Principal........................................5
10.2 Certain Covenants..............................................5
10.3 Nonpayment of Interest and Other Obligations...................5
10.4 Cross Default..................................................5
10.5 Loan Documents.................................................5
10.6 Representation or Warranty.....................................5
10.7 Covenants, Agreements and Other Conditions.....................5
10.8 No Longer General Partner......................................5
10.9 Material Adverse Financial Change..............................5
10.10 Bankruptcy....................................................5
10.11 Legal Proceedings.............................................5
10.12 ERISA.........................................................5
10.13 Failure to Satisfy Judgments..................................5
10.14 Environmental Remediation.....................................5
ARTICLE XI ACCELERATION, WAIVERS AMENDMENTS AND REMEDIES....................5
11.1 Acceleration...................................................5
11.2 Preservation of Rights; Amendments.............................5
ARTICLE XII THE ADMINISTRATIVE AGENT........................................5
12.1 Appointment....................................................5
12.2 Powers.........................................................5
12.3 General Immunity...............................................5
12.4 No Responsibility for Loans, Recitals, etc.....................5
12.5 Action on Instructions of Lenders..............................5
12.6 Employment of Administrative Agents and Counsel................5
12.7 Reliance on Documents..........................................5
12.8 Administrative Agent's Reimbursement and Indemnification.......5
12.9 Rights as a Lender.............................................5
12.10 Commitment as a Lender........................................5
12.11 Lender Credit Decision........................................5
12.12 Successor Administrative Agent................................5
12.13 Notice of Defaults............................................5
12.14 Requests for Approval.........................................5
12.15 Copies of Documents...........................................5
12.16 Defaulting Lenders............................................5
12.17 Withholding Tax...............................................5
12.18 Borrower's Default; Enforcement...............................5
12.19 Workout.......................................................5
12.20 Bankruptcy of Borrower........................................5
12.21 Relationship of Parties.......................................5
12.22 Counsel.......................................................5
ARTICLE XIII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS..............5
13.1 Successors and Assigns.........................................5
13.2 Participations.................................................5
13.3 Assignments....................................................5
13.4 Dissemination of Information...................................5
13.5 Tax Treatment..................................................5
ARTICLE XIV GENERAL PROVISIONS..............................................5
14.1 Survival of Representations....................................5
14.2 Governmental Regulation........................................5
14.3 Taxes..........................................................5
14.4 Headings.......................................................5
14.5 No Third Party Beneficiaries...................................5
14.6 Expenses: Indemnification......................................5
14.7 Severability of Provisions.....................................5
14.8 Nonliability of the Lenders....................................5
14.9 Choice of Law..................................................5
14.10 Consent to Jurisdiction.......................................5
14.11 Waiver of Jury Trial..........................................5
14.12 Successors and Assigns........................................5
14.13 Entire Agreement; Modification of Agreement...................5
14.14 Dealings with the Borrower....................................5
14.16 Counterparts..................................................5
14.17 Discretion....................................................5
ARTICLE XV NOTICES..........................................................5
15.1 Giving Notice..................................................5
15.2 Change of Address..............................................5
UNSECURED REVOLVING CREDIT AGREEMENT
THIS UNSECURED REVOLVING CREDIT AGREEMENT is entered into as of January 6,
1998, by and among the following:
GREAT LAKES REIT, L.P., a Delaware limited partnership having its principal
place of business at 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx 00000
("Borrower"), the sole general partner of which is Great Lakes REIT, Inc., a
Maryland corporation;
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("BOFA"), a national
banking association organized under the laws of the United States of America,
having its principal place of business at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000;
THE FIRST NATIONAL BANK OF CHICAGO ("First Chicago"), a national bank
organized under the laws of the United States of America, having its principal
place of business at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000;
First Chicago, as documentation agent ("Documentation Agent");
BOFA, as administrative agent (the "Agent") for the Lenders (as defined
below).
RECITALS
A. Borrower is primarily engaged in the business of acquiring,
developing, owning and operating suburban office and light industrial
properties.
B. The Borrower has requested that the Lenders make loans available to the
Borrower in the maximum aggregate principal amount of $35,000,000 outstanding
from time to time pursuant to the terms of this Agreement (the "Facility"), and
that the Administrative Agent act as administrative agent for the Lenders and
that the Documentation Agent act as documentation agent for the Lenders. The
Agent and the Lenders have agreed to do so.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions. As used in this Agreement, the following terms
have the respective meanings set forth below:
"Adjusted Base Rate" means a floating interest rate equal to the Base Rate
changing when and as the Base Rate changes.
"Adjusted EBITDA" means, for any quarter, the sum of (i) EBITDA (calculated
by annualizing actual EBITDA for such quarter), reduced by a capital reserve
equal to the product of $1.25 and the aggregate amount of Leased Space at the
Projects for such period, plus (ii) EBITDA for any Projects acquired or sold
during such quarter (calculated on an annualized basis), reduced by a capital
reserve
equal to the product of $1.25 and the weighted average amount of Leased Space at
the Projects during such quarter.
"Adjusted LIBOR Rate" means, with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, the sum of (i) the quotient of (a) the LIBOR
Rate applicable to such LIBOR Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such LIBOR Interest
Period, plus (ii) one and one tenths percent (1.10%).
"Administrative Agent" means BOFA, acting as administrative agent for the
Lenders in connection with the transactions contemplated by this Agreement, and
its successors in such capacity.
"Advance" means a Loan to the Borrower hereunder by one or more of the
Lenders pursuant to Section 2.l(a) hereof, including the initial Advance and all
subsequent Advances, whether such Advances are, from time to time, Base Rate
Advances or LIBOR Advances.
"Affiliate" means any Person directly or indirectly controlling, controlled
by or under direct or indirect common control with any other Person. A Person
shall be deemed to control another Person if the controlling Person owns ten
percent (10%) or more of any class of voting securities of the controlled Person
or possesses, directly or indirectly, the power to direct or cause the direction
of the management or policies of the controlled Person, whether through
ownership of stock, by contract or otherwise.
"Aggregate Commitment" means, as of any date, the sum of all of the
Lenders' then-current Commitments, provided that the Aggregate Commitment shall
not at any time exceed an amount equal to the lesser of (i) $35,000,000 and (ii)
the maximum amount that permits compliance with Article VII hereof.
"Agreement" means this Unsecured Revolving Credit Agreement and all
amendments, modifications and supplements hereto.
"Agreement Execution Date" shall mean January 6, 1998, the date on which
all of the parties hereto have executed and delivered this Agreement.
"Allocated Facility Amount" means, at any time, the sum of all then
outstanding Advances.
"Applicable Laws" is defined in Section 6.26(b) hereof.
"Base Rate" means a rate per annum equal to the rate of interest announced
by BOFA from time to time as its reference rate, changing when and as such
reference rate changes.
"Base Rate Advance" means an Advance that bears interest at the Adjusted
Base Rate.
"BOFA" means Bank of America National Trust and Savings Association.
"Borrower" means Great Lakes REIT, L.P., together with its permitted
successors and assigns.
"Borrowing Date" means a Business Day on which an Advance is made to the
Borrower.
"Borrowing Notice" is defined in Section 2.10(a) hereof.
"Business Day" means a day, other than a Saturday, Sunday or holiday, on
which banks are open for business in Chicago, Illinois and, where such term is
used in reference to the selection or determination of the Adjusted LIBOR Rate,
in London, England.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent equity ownership interests in a Person which is not a
corporation and any and all warrants or options to purchase any of the
foregoing.
"Cash Equivalents" shall mean (i) short-term obligations of, or fully
guaranteed by, the United States of America, (ii) commercial paper rated A-1 or
better by S&P's or P-1 or better by Xxxxx'x, (iii) certificates of deposit
issued by and time deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000, or (iv) shares of any
money market mutual fund rated at least AAA or the equivalent by S&P or at least
Aaa or the equivalent by Xxxxx'x.
"Code" means the Internal Revenue Code of 1986 as amended from time to
time, or any replacement or successor statute, and the regulations promulgated
thereunder from time to time.
"Commitment" means the obligation of each Lender, subject to the terms and
conditions of this Agreement and in reliance upon the representations and
warranties herein, to make Advances not exceeding in the aggregate the amount
set forth opposite its signature below, or the amount stated in any subsequent
amendment hereto.
"Consolidated Operating Partnership" means the Borrower, the General
Partner and any other subsidiary partnerships or entities of either of them
which are required under GAAP to be consolidated with the Borrower and the
General Partner for financial reporting purposes.
"Consolidated Secured Debt" means, as of any date of determination, (i) the
aggregate principal amount of all Indebtedness of the Consolidated Operating
Partnership, plus the allocable percentage of all Indebtedness of any Investment
Affiliate, whether recourse or non-recourse, equal to the applicable economic
interest in such Investment Affiliate held by any entity in the Consolidated
Operating Partnership, all of which Indebtedness is outstanding at such date and
secured by a Lien on any asset or Capital Stock, including without limitation
loans secured by mortgages, stock, or partnership interests, plus (ii) the
aggregate principal amount of all Indebtedness of any Investment Affiliate which
Indebtedness is outstanding at such date and not secured by a Lien or any asset
or Capital Stock but only to the extent same is recourse to the Borrower or any
other entity in the Consolidated Operating Partnership.
"Consolidated Net Worth" means, as of any date of determination, the
stockholders' equity as shown on the balance sheet of the General Partner as of
that date.
"Consolidated Total Indebtedness" means, as of any date of determination,
(i) all Indebtedness of the Consolidated Operating Partnership outstanding at
such date, determined in accordance with GAAP, after eliminating intercompany
items, plus (ii) the allocable percentage of any Indebtedness of any Investment
Affiliate outstanding at such date, equal to the applicable economic interest in
such Investment Affiliate held by any entity in the Consolidated Operating
Partnership, in the aggregate, without duplication.
"Consolidated Unsecured Debt" means, as of any date of determination, the
aggregate principal amount of all Indebtedness of the Consolidated Operating
Partnership, plus the allocable percentage of all Indebtedness of any Investment
Affiliate equal to the applicable economic interest in such Investment Affiliate
held by any entity in the Consolidated Operating Partnership, all of which
Indebtedness is outstanding at such date, but excluding that portion of the
Consolidated Secured Debt described under clause (i) of such definition.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with all or any of the entities in the Consolidated Operating
Partnership, are treated as a single employer under Sections 414(b) or 414(c) of
the Code.
"Credit Parties" means, collectively, Borrower and each Guarantor.
"Debt Service" means for any period, (a) Interest Expense for such period
plus (b) the aggregate amount of regularly scheduled principal payments of
Indebtedness (excluding optional prepayments and balloon principal payments due
on maturity in respect of any Indebtedness) required to be made during such
period by the Borrower, or any entity in the Consolidated Operating Partnership
(and, if such period is less than a full fiscal year, annualized by calculating
all of the payments required to be made during the entire fiscal year in which
such period falls), plus (c) a percentage of all such regularly scheduled
principal payments required to be made during such period by any Investment
Affiliate on Indebtedness (excluding optional prepayments and balloon principal
payments due on maturity in respect of any Indebtedness) taken into account in
calculating Interest Expense, equal to the allocable economic interest in such
Investment Affiliate held by the Borrower and any entity in the Consolidated
Operating Partnership, in the aggregate, without duplication (and, if such
period is less than a full fiscal year, annualized by calculating all of the
payments required to be made during the entire fiscal year in which such period
falls), plus (d) Senior Preferred Stock Expense for such period.
"Default" means an event which, with notice or lapse of time or both, would
become an Event of Default.
"Default Rate" means with respect to any Advance, a rate equal to the
interest rate applicable to such Advance plus three percent (3%) per annum.
"Defaulting Lender" means any Lender which fails or refuses to perform its
obligations under this Agreement within the time period specified for
performance of such obligation, or, if no time frame is specified, if such
failure or refusal continues for a period of five Business Days after written
notice from the Administrative Agent; provided that if such Lender cures such
failure or refusal, such Lender shall cease to be a Defaulting Lender.
"Documentation Agent" means First Chicago, acting as documentation agent
for the Lenders in connection with the transactions contemplated by this
Agreement, and its successors in such capacity.
"Dollars" and "$" mean United States Dollars.
"EBITDA" means, as to any period, net income, adjusted by excluding gains
and losses from property sales, debt restructurings and property write-downs
(and reduced to eliminate any income from Investment Affiliates), as reported by
the Consolidated Operating Partnership in accordance
with GAAP, plus Interest Expense, depreciation, amortization and income tax (if
any) expense plus a percentage of such income (adjusted as described above) of
any Investment Affiliate equal to the allocable economic interest in such
Investment Affiliate held by any entity in the Consolidated Operating
Partnership, in the aggregate (provided that no item of income or expense shall
be included more than once in such calculation even if it falls within more than
one of the foregoing categories). For purposes of this definition, items of
income and expense from any Properties acquired or sold during the period in
question shall be excluded.
"Effective Date" means each Borrowing Date and, if no Borrowing Date has
occurred in the preceding calendar month, the first Business Day of each
calendar month.
"Eligible Joint Ventures" means those joint ventures (i) in which any
entity in the Consolidated Operating Partnership either is the managing or
co-managing general partner or equivalent, or has an equity interest equal or
greater than fifty percent (50%), and (ii) in which such entity has the ability,
in its sole discretion, to sell, encumber or otherwise transfer any interest in
the assets of such joint venture, and (iii) for which no restrictions exist on
the upstreaming of Net Operating Income, and (iv) which have agreed to maintain
no Indebtedness.
"Eligible Land" means any Land for which all permits and other approvals
required of any applicable governmental authority or otherwise for the
development thereof have been received.
"Environmental Laws" means any and all Federal, state, local or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees,
requirements of any governmental authority having jurisdiction over the
Borrower, its Subsidiaries or Investment Affiliates, or their respective assets,
and regulating or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any time
hereafter be in effect, in each case to the extent the foregoing are applicable
to the operations of the Borrower, any Investment Affiliate, or any Subsidiary
or any of their respective Properties or other Assets.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and regulations promulgated thereunder from time to time.
"Event of Default" means any event set forth in Article X hereof.
"Existing Facility" means that certain existing credit facility in the
maximum principal amount of $75,000,000 from Bank of Boston and certain other
lenders to Borrower, as same may be amended or supplemented from time to time.
"Facility" means the unsecured revolving credit facility described in
Section 2.1.
"Facility Fee" and "Facility Fee Rate" are defined in Section 2.7(b).
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum 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 for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Fixed Charges" means, for any quarter, the sum of dividends payable on any
preferred stock of the General Partner and any Subsidiary of the Borrower,
calculated on an annualized basis, and Debt Service.
"Funded Percentage" means, with respect to any Lender at any time, a
percentage equal to a fraction the numerator of which is the amount of the
Aggregate Commitment actually disbursed and outstanding to Borrower by such
Lender at such time, and the denominator of which is the total amount of the
Aggregate Commitment disbursed and outstanding to Borrower by all of the Lenders
at such time.
"Funds From Operations" shall mean GAAP net income of the Consolidated
Operating Partnership, plus a percentage of GAAP net income of any Investment
Affiliate equal to the allocable economic interest in such Investment Affiliate
held by any entity in the Consolidated Operating Partnership, in the aggregate,
all of which income shall be adjusted by (i) excluding gains and losses from
property sales, debt restructurings and property write-downs and adjusted for
the non-cash effect of straight-lining of rents, (ii) straight-lining various
ordinary operating expenses which are payable less frequently than monthly
(e.g., real estate taxes) and (iii) adding back depreciation, amortization and
all non-cash items. In calculating Funds From Operations, no deduction shall be
made from net income for closing costs and other one-time charges associated
with the formation and capitalization of such Person.
"GAAP" means generally accepted accounting principles in the United States
of America consistent with those utilized in preparing the audited financial
statements of the Borrower required hereunder and applied consistently from
period to period.
"General Partner" means Great Lakes REIT, Inc., a Maryland corporation
whose common stock is listed on the New York Stock Exchange and is qualified as
a real estate investment trust. General Partner is the sole general partner of
Borrower;
"Gross Asset Value" means, for any Person for any quarter, the sum of (i)
total unrestricted cash and Cash Equivalents, provided that in no event shall
the amounts be added to Gross Asset Value in violation of the restrictions set
forth in Section 8.3 hereof, plus (ii) Real Estate Asset Value, plus (iii)
Eligible Land, valued at the lesser of cost or market value, provided that in no
event shall the aggregate amount added to Gross Asset Value pursuant to this
clause (iii) exceed ten percent (10%) of the Gross Asset Value, plus (iv) an
amount equal to fifty percent (50%) of the cost of all 50% Preleased Assets
Under Development and one hundred percent (100%) of the cost of all 75%
Preleased Assets Under Development, provided, however, that in no event shall
the aggregate amount added to Gross Asset Value pursuant to this clause (iv)
exceed fifteen percent (15%) of the Gross Asset Value, and further provided that
the aggregate amount added to Gross Asset Value pursuant to clauses (iii) and
(iv) shall in no event exceed $50,000,000.
"Gross Revenues" means total revenues, calculated in accordance with GAAP.
"Guarantee Obligation" means as to any Person (the "guaranteeing person"),
any obligation (determined without duplication) of the guaranteeing person (or
any other Person [including, without limitation, any bank under any letter of
credit] if the guaranteeing person has issued a reimbursement, counter indemnity
or similar obligation in favor of such other Person) guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or
indirectly, including, without limitation, any obligation of the guaranteeing
person, whether or not contingent, (i) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv) otherwise
to assure or hold harmless the owner of any such primary obligation against loss
in respect thereof; provided, however, that the term Guarantee Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the maximum stated amount of the
primary obligation relating to such Guarantee Obligation (or, if less, the
maximum stated liability set forth in the instrument embodying such Guarantee
Obligation), provided, that in the absence of any such stated amount or stated
liability, the amount of such Guarantee Obligation shall be such guaranteeing
person's maximum reasonably anticipated liability in respect thereof as
reasonably determined by the Borrower in good faith, subject to the
Administrative Agent's approval, which approval shall not be unreasonably
withheld.
"Guarantor" means, collectively, the General Partner, each Subsidiary
listed on Schedule 1 attached hereto, and each other Person that executes and
delivers the Guaranty.
"Guaranty" means the Guaranty executed and delivered in the form attached
hereto as Exhibit A.
"Hedging Agreements" means interest rate protection agreements, foreign
currency exchange agreements, commodity purchase or option agreements or other
interest, exchange rate or commodity price hedging agreements.
"Indebtedness" of any Person at any date means without duplication (i)
all indebtedness of such Person for borrowed money, (ii) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade liabilities and other accounts payable, and accrued expenses
incurred in the ordinary course of business and payable in accordance with
customary practices), to the extent such obligations constitute indebtedness for
the purposes of GAAP, (iii) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (iv) all obligations
of such Person under financing leases and capital leases, (v) all obligations of
such Person in respect of acceptances issued or created for the account of such
Person, (vi) all Guarantee Obligations of such Person (excluding in any
calculation of consolidated indebtedness of the Borrower, Guarantee Obligations
of the Borrower in respect of primary obligations of any Subsidiary), (vii) all
reimbursement obligations of such Person for letters of credit and other
contingent liabilities, (viii) all liabilities secured by any Lien (other than
Liens for taxes not yet due and payable) on any property owned by such Person
even though such Person has not assumed or otherwise become liable for the
payment thereof, (ix) any repurchase obligation or liability of such Person or
any of its Subsidiaries with respect to accounts or notes receivable sold by
such Person or any of its Subsidiaries, (x) Senior Preferred Stock, (xi) such
Person's allocable percentage of debt of any Investment Affiliates equal to the
greater of (a) the percentages of the principal amount of such debt(s) for which
such Person is liable and (b) the applicable economic interest in such
Investment Affiliate(s) held by such Person, in the aggregate, (xii) all
obligations to make advances and contributions to Investment Affiliates, and
(xiii) to the extent not included in Interest Expense all obligations to make
payments under any Hedging Agreements.
"Insolvency" means insolvency as defined in the United States Bankruptcy
Code, as amended. "Insolvent" when used with respect to a Person, shall refer to
a Person who satisfies the definition of Insolvency.
"Interest Expense" means, for any period, the sum (calculated on an
annualized basis) of (i) all interest expense of the Consolidated Operating
Partnership determined in accordance with GAAP, plus (ii) capitalized interest
not covered by an interest reserve from a loan facility, plus (iii) the
allocable portion (based on liability) of any accrued or paid interest incurred
on any obligation for which any entity in the Consolidated Operating Partnership
is wholly or partially liable under repayment, interest carry, or performance
guarantees, or other relevant liabilities, plus (iv) the allocable percentage of
any accrued or paid interest incurred on any Indebtedness of any Investment
Affiliate, whether recourse or non-recourse, equal to the applicable economic
interest in such Investment Affiliate held by any entity in the Consolidated
Operating Partnership, in the aggregate, provided that no expense shall be
included more than once in such calculation even if it falls within more than
one of the foregoing categories.
"Interest Period" means a LIBOR Interest Period.
"Investment Affiliate" means any Person in which any entity in the
Consolidated Operating Partnership, directly or indirectly, has an ownership
interest but which is not a member of the Consolidated Operating Partnership.
"Land" means any parcel of real property wholly-owned in fee simple of
record by any entity in the Consolidated Operating Partnership or any Investment
Affiliate (provided, however, that any such parcel of an Investment Affiliate
shall be included only to the extent of the allocable economic interest in such
Investment Affiliate held by any entity in the Consolidated Operating
Partnership, in the aggregate), which parcel is not improved.
"Leased Space" means, as of any date of determination, the total rentable
area, then leased, subleased, licensed or otherwise occupied under any written
agreement at market rates (determined as of the time such agreement was entered
into), in all of the Projects.
"Lenders" means, collectively, BOFA and the other Persons executing this
Agreement in such capacity, or any Person which subsequently executes and
delivers any amendment hereto in such capacity and each of their respective
permitted successors and assigns. Where reference is made to "the Lenders" in
any Loan Document it shall be read to mean "all of the Lenders"
"Lending Installation" means any U.S. office of any Lender authorized to
make loans similar to the Advances described herein.
"LIBOR Advance" means an Advance that bears interest at the Adjusted LIBOR
Rate.
"LIBOR Interest Period" means, with respect to a LIBOR Advance, a period of
30, 60, 90 or 180 days (to the extent that periods in excess of three months are
generally available from the Lenders), as selected in advance by the Borrower.
"LIBOR Rate" means, with respect to a LIBOR Advance for the relevant LIBOR
Interest Period, the per annum rate of interest, rounded upward, if necessary,
to the nearest 1/16th of one percent (0.0625%), determined by the Administrative
Agent to be the rate at which deposits in immediately available funds in U.S.
Dollars would be offered by BOFA's London branch to first-class banks in
the London interbank eurodollar market at approximately 11:00 a.m. London time
two Business Days prior to the first day of such LIBOR Interest Period, in the
approximate amount of the relevant LIBOR Advance and having a maturity
approximately equal to such LIBOR Interest Period.
"Lien" means any mortgage, pledge, hypothecation, deposit arrangement,
preference, priority, security interest, collateral assignment, statutory or
consensual lien, charge, restriction or encumbrance of any kind (including,
without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof, any filing or agreement to file a financing
statement as debtor under the Uniform Commercial Code on any property leased to
any Person under a lease which is not in the nature of a conditional sale or
title retention agreement, or any subordination agreement in favor of another
Person). For purposes of this Agreement, a Lien on the Capital Stock of any
Person shall be deemed to constitute a Lien on the assets of said Person.
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance.
"Loan Documents" means this Agreement, the Notes, the Guaranty and any and
all other agreements or instruments required and/or provided to Lenders
hereunder or thereunder, as any of the foregoing may be amended from time to
time.
"Majority Lenders" means Lenders in the aggregate having in excess of 50%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding in excess of 50% of the aggregate unpaid
principal amount of the outstanding Advances.
"Margin Stock" has the meaning ascribed to it in Regulation U of the Board
of Governors of the Federal Reserve System.
"Material Adverse Effect" means, with respect to any matter, that such
matter constitutes a Material Adverse Financial Change or (x) materially and
adversely affects the business, properties, condition or results of operations
of the Consolidated Operating Partnership taken as a whole, or (y) constitutes a
nonfrivolous challenge to the validity or enforceability of any material
provision of any Loan Document against any obligor party thereto.
"Material Adverse Financial Change" shall be deemed to have occurred if a
material adverse financial change has occurred which could reasonably be
expected to materially impair Borrower's or any Guarantor's ability to perform
its obligations under any of the Loan Documents.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
radon, polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" means July 6, 1998 or such earlier date on which the
principal balance of the Facility and all other sums due in connection with the
Facility shall be due as a result of the acceleration of the Facility.
"Monetary Default" means any Default involving Borrower's failure to pay
any of the Obligations when due.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Operating Income" means, as to any Property for any fiscal period, an
amount equal to (a) rents and other revenues received in the ordinary course
from such Property (including proceeds of rent loss insurance), less (b) all
expenses paid or accrued related to the ownership, operation or maintenance of
such Property, excluding capital expenditures, but including, without
limitation, taxes, assessments and the like, insurance, utilities, payroll
costs, maintenance, repair and landscaping expenses, management fees, leasing
commissions and on-site marketing expenses.
"Non-Use Fee" is defined in Section 2.7 hereof.
"Note" means the promissory note payable to the order of each Lender in the
amount of such Lender's maximum Commitment in the form attached hereto as
Exhibit B (collectively, the "Notes").
"Obligations" means the Advances and all accrued and unpaid fees and all
other obligations of Borrower to the Administrative Agent or any or all of the
Lenders arising under this Agreement or any of the other Loan Documents.
"Partial Advance" is defined in Section 2.3 hereof.
"Participants" is defined in Section 13.2.1 hereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Percentage" means, with respect to each Lender, the applicable percentage
of the then-current Aggregate Commitment represented by such Lender's
then-current Commitment.
"Permitted Liens" are defined in Section 9.6 hereof.
"Person" means an individual, a corporation, a limited or general
partnership, an association, a joint venture or any other entity or
organization, including a governmental or political subdivision or an agent or
instrumentality thereof.
"Plan" means an employee benefit plan as defined in Section 3(3) of ERISA,
whether or not terminated, as to which the Borrower or any member of the
Controlled Group may have any liability.
"Preleased Assets Under Development" means as of any date of determination,
any Project which (i) is under construction and then treated as an asset under
development under GAAP, and (ii) has, as of such date, at least fifty percent
(50%) of its projected total rentable area leased at market rates to third party
tenants similar to those at Borrower's other properties, both such land and
improvements under construction to be valued for purposes of this Agreement at
then-current book value, as determined in accordance with GAAP; provided,
however, in no event shall Preleased Assets Under Development include any
Project after the date on which a certificate of occupancy or comparable
authorization has been issued for such Project by the applicable governmental
authority. Preleased Assets Under Development shall be comprised of two groups:
"75% Preleased Assets Under Development" which shall mean, collectively, any
Preleased Assets Under Development that has, as of such date, at least seventy
five percent (75%) of its projected total rentable area so leased; and "50%
Preleased Assets Under Development" which shall mean, collectively, any
Preleased Asset Under Development that has, as of such date, less than seventy
five
percent (75%) but at least fifty percent (50%) of its projected total rentable
area so leased.
"Project" means any parcel of real property wholly-owned in fee simple of
record by any entity in the Consolidated Operating Partnership or any Investment
Affiliate (provided, however, that any such parcel of an Investment Affiliate
shall be included only to the extent of the allocable economic interest in such
Investment Affiliate held by any entity in the Consolidated Operating
Partnership, in the aggregate), together with all improvements thereon, which is
fully improved for use and operated as a office or light industrial property,
and with respect to which a certificate of occupancy or comparable authorization
has been issued by the applicable governmental authority.
"Property" means each parcel of real property wholly-owned in fee simple of
record by any entity in the Consolidated Operating Partnership or any Investment
Affiliate, together with all improvements, if any, thereon, provided, however,
that any such parcel of an Investment Affiliate shall be included only to the
extent of the allocable economic interest in such Investment Affiliate held by
any entity in the Consolidated Operating Partnership, in the aggregate.
"Purchasers" is defined in Section 13.3.1 hereof.
"Qualified Officer" means, with respect to any entity, the chief financial
officer, chief accounting officer or controller of such entity if it is a
corporation or of such entity's general partner if it is a partnership or such
other appropriate individual approved by the Bank.
"Rate Option" means the Adjusted Base Rate or the Adjusted LIBOR Rate. The
Rate Option in effect on any date shall always be the Adjusted Corporate Base
Rate unless the Borrower has properly selected the Adjusted LIBOR Rate pursuant
to Section 2.10 hereof.
"Real Estate Asset Value" means, for any Person for any quarter, the sum of
(i) the quotient of (x) EBITDA for such Person during such quarter (which EBITDA
shall be calculated by annualizing actual EBITDA for such quarter, but shall
exclude EBITDA, if any, attributable to Preleased Assets Under Development),
divided by (y) a capitalization rate equal to 10.25%, plus (ii) the gross
acquisition cost paid for any Property acquired during such quarter, less
customary brokerage fees and other closing costs incurred by such Person in
connection with such acquisition.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided that a failure to meet the minimum
funding standard of Section 412 of the Code and of Section 302 of ERISA shall be
a Reportable Event regardless of the issuance of any such waivers in accordance
with either Section 4043(a) of ERISA or Section 412(d) of the Code.
"Reserve Requirement" means, with respect to a LIBOR Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Senior Preferred Stock" means the stated value of any preferred stock
issued by the General Partner which is not typical preferred stock but instead
is both (i) redeemable by the holders thereof on any fixed date or upon the
occurrence of any event and (ii) as to payment of dividends or amounts on
liquidation, either guaranteed by any direct or indirect Subsidiary of the
General Partner or secured by any property of the General Partner or any direct
or indirect Subsidiary of the General Partner.
"Senior Preferred Stock Expense" means, for any period for any Person, the
aggregate dividend payments due to the holders of Senior Preferred Stock of such
Person, whether payable in cash or in kind, and whether or not actually paid
during such period, in each case on an annualized basis (if such period is less
than a full fiscal year).
"Solvent" means, as to any Person on a particular date, that such Person
(a) has capital sufficient to carry on its existing business and transactions
and all business and transactions in which it is about to engage, (b) owns
property having a value, both at fair valuation and at present fair salable
value, greater than the amount required to pay its probable liabilities
(including, without limitation, contingencies), (c) does not intend to or
believe that it will incur debts or liabilities beyond its ability to pay the
same as they mature and (d) is not Insolvent.
"Subordinated Debt" means Indebtedness of the Consolidated Operating
Partnership is contractually subordinated in right of payment and otherwise to
the Indebtedness under the Loan Documents, on terms acceptable to the Majority
Lenders.
"Subsidiary" means as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person, and provided such corporation, partnership or other entity is
consolidated with such Person for financial reporting purposes under GAAP.
"Transferee" is defined in Section 13.4 hereof.
"Unencumbered Asset" means those Properties held by any entity in the
Consolidated Operating Partnership or any Eligible Joint Venture which, as of
any date of determination, (a) is not subject to any Liens other than Permitted
Liens (excluding Liens described in Schedule 9.6 attached hereto), (b) is not
subject to any agreement (including any agreement governing Indebtedness
incurred in order to finance or refinance the acquisition of such asset) which
prohibits or limits the ability of any entity in the Consolidated Operating
Partnership or Eligible Joint Venture, as the case may be, to create, incur,
assume or suffer to exist any Lien upon any assets or Capital Stock of such
entity in the Consolidated Operating Partnership or Eligible Joint Venture, (c)
is not subject to any agreement (including any agreement governing Indebtedness
incurred in order to finance or refinance the acquisition of such asset) which
(i) entitles any Person to the benefit of any Lien (other than Permitted Liens
excluding Liens described in Schedule 9.6 attached hereto) on any assets or
Capital Stock of any entity in the Consolidated Operating Partnership or
Eligible Joint Venture or (ii) would entitle any Person to the benefit of any
Lien (other than Permitted Liens excluding Liens described in Schedule 9.6
attached hereto) on such assets or Capital Stock upon the occurrence of
any contingency (including, without limitation, pursuant to an "equal and
ratable" clause), (d) is not the subject of any material
architectural/engineering issue or any material Environmental Law issue, as
evidenced by a certification of Borrower, and (e) is in material compliance with
the applicable representations and warranties in Article VI below; provided that
any Property which would, as of the date of determination, individually account
for more than fifteen percent (15%) of the Value of Unencumbered Assets shall be
excluded herefrom. Notwithstanding anything to the contrary contained in this
Agreement, if the Administrative Agent reasonably determines that any Property
theretofore identified by Borrower as an Unencumbered Asset may be the subject
of a material architectural/engineering issue or a material Environmental Law
issue, the Administrative Agent may (i) require Borrower to furnish a current
detailed environmental assessment or architectural/engineering assessment, as
the case may be, and, if applicable, a written estimate of any remediation costs
from a qualified architect, engineer or contractor acceptable to the
Administrative Agent, in which event Borrower shall promptly obtain and furnish
the same at its own expense, and (ii) exclude any such Property from the
Unencumbered Asset at its election. No Property of any entity in the
Consolidated Operating Partnership or any Investment Affiliate shall be deemed
to be unencumbered unless both such Property and all Capital Stock of such
entity or Investment Affiliate, as the case may be, is unencumbered and such
entity (and any other intervening Subsidiary between the Borrower and such
entity) or Investment Affiliate, as the case may be, has no Indebtedness for
borrowed money (other than Indebtedness due to the Borrower). As of the
Agreement Execution Date, the parties hereto agree that those Properties
described on Schedule 2 attached hereto shall constitute all of the Unencumbered
Assets as of such date.
"Unencumbered NOI" means, for any period, Net Operating Income for all
Unencumbered Assets during such period.
"Value of Unencumbered Assets" means, as of any date, the sum of (i) the
quotient of (a) the Unencumbered NOI for the immediately preceding full fiscal
quarter from each Property which is an Unencumbered Asset as of such date (as
such Unencumbered NOI is annualized), divided by (b) a capitalization rate of
10.25%, plus (ii) the gross acquisition cost paid for any Property that is an
Unencumbered Asset and is acquired during such quarter, less customary brokerage
fees and other closing costs incurred by the Consolidated Operating Partnership
in connection with such acquisition; provided, however, that in no event shall
the aggregate amount added to the Value of Unencumbered Assets on account of
Eligible Joint Ventures exceed ten percent (10%) of the Value of Unencumbered
Assets. For purposes of this definition, Net Operating Income from any
Unencumbered Assets acquired or sold during the period in question shall be
excluded.
The foregoing definitions shall be equally applicable to both the singular
and the plural forms of the defined terms.
1.2 Financial Standards. All financial and accounting terms used and
not otherwise defined herein shall be construed in accordance with GAAP. All
financial and accounting computations and determinations required of a Person
under this Agreement shall be made, and all financial information required under
this Agreement shall be prepared, in accordance with GAAP, except as otherwise
expressly provided herein.
ARTICLE II
THE FACILITY
2.1 The Facility.
(a) Subject to the terms and conditions of this Agreement and
in reliance upon the representations and warranties of Borrower contained
herein, Lenders agree to make Advances through the Administrative Agent to
Borrower from time to time prior to the Maturity Date, provided that the making
of any such Advance will not cause the then Allocated Facility Amount to exceed
the then-current Aggregate Commitment. The Advances may be ratable Base Rate
Advances or ratable LIBOR Advances. Except as provided in Section 12.16 hereof,
each Lender shall be required to fund only its Percentage of each such Advance
and no Lender will be required to fund any amounts which when aggregated with
such Lender's Percentage of all other Advances then outstanding would exceed
such Lender's then-current Commitment. This facility ("Facility") is a revolving
credit facility and, subject to the provisions of this Agreement, Borrower may
request Advances hereunder, repay such Advances and reborrow Advances at any
time prior to the Maturity Date.
(b) The Facility created by this Agreement, and that
Commitment of each Lender to lend hereunder, shall terminate on the Maturity
Date, unless sooner terminated in accordance with the terms of this Agreement.
(c) In no event shall the Aggregate Commitment exceed Thirty Five Million
Dollars ($35,000,000).
2.2 Principal Payments. Any outstanding Advances and all other unpaid
Obligations shall be paid in full by the Borrower on the Maturity Date.
2.3 Requests for Advances: Responsibility for Advances. Ratable
Advances funded by the Lenders shall be made available to Borrower by
Administrative Agent in accordance with Section 2.1(a) and Section 2.10(a)
hereof. The obligation of each Lender to fund its Percentage of each ratable
Advance shall be several, and not joint or joint and several.
2.4 Evidence of Credit Extensions. The Advances of each Lender
outstanding at any time shall be evidenced by the Notes. Each Note executed by
the Borrower shall be in a maximum principal amount equal to each Lender's
Percentage of the Aggregate Commitment. Each Lender shall record Advances and
principal payments thereof on the schedule attached to its Note or, at its
option, in its records, and each Lender's record thereof shall be conclusive
absent Borrower furnishing to such Lender conclusive and irrefutable evidence of
an error made by such Lender with respect to that Lender's records.
Notwithstanding the foregoing, the failure to make, or an error in making, a
notation with respect to any Advance shall not limit or otherwise affect the
obligations of Borrower hereunder or under the Notes to pay the amount actually
owed by Borrower to Lenders.
2.5 Ratable Loans. Each Advance hereunder shall consist of Loans made
from the several Lenders ratably in proportion to their Percentages. The ratable
Advances may be Base Rate Advances, LIBOR Advances or a combination thereof
selected by the Borrower in accordance with Sections 2.9 and 2.10.
2.6 Unused Commitment Fee. The Borrower agrees to pay to the
Administrative Agent
for the account of each Lender a commitment fee (the "Non-Use Fee"), payable
quarterly in arrears on the first day of each calendar quarter hereafter
beginning on January 1, 1998, calculated for each calendar quarter from the
Agreement Execution Date to and including the Maturity Date, on the weighted
average during such quarter of the daily unborrowed portion of such Lender's
Commitment (which is equal to the difference between (a) such Lender's
Commitment on such day and (b) the then outstanding Loans owed to such Lender).
If such weighted average is less than or equal to 33% of such Lender's portion
of the Aggregate Commitment, the Non-Use Fee for such quarter shall be
calculated at the rate of 0.15% per annum of such average. If such weighted
average is greater than 33% but not more than 66% of such Lender's portion of
the Aggregate Commitment, the Non-Use Fee for such quarter shall be calculated
at the increased rate of 0.20% per annum on such average, and if such weighted
average is greater than 66% of such Lender's portion of the Aggregate
Commitment, the Non-Use Fee for such quarter shall be calculated at the
increased rate of 0.25% per annum on such average. Notwithstanding the
foregoing, all Non-Use Fees shall be calculated and payable on the effective
date of any termination of the obligations of the Lenders to make Loans
hereunder with respect to any partial calendar quarter. The Non-Use Fee shall be
calculated for actual days elapsed on the basis of a 360-day year. [For purposes
of illustration only and not in limitation of the foregoing: If, during the
entire month of April, 1998, the unborrowed portion of the Loan is 70%, and on
May 1 through May 20, such unborrowed portion is 50% and on May 21 through June
30, such unborrowed portion is 30%, then the quarterly Non-Use Fee payable on
July 1, 1998 would be calculated as follows: [.0025 x (30)360) x (.7 x
$35,000,000)] + [.0020 x (20)360) x (.5 x $35,000,000)] + [.0015 x (41)360) x
(.3 x $35,000,000)] = $8,842.35.
2.7 Other Fees.
(a) The Borrower shall pay all fees payable to the
Administrative Agent pursuant to the Borrower's letter agreement with the
Administrative Agent and Documentation Agent.
(b) The Borrower shall pay to the Administrative Agent for the
account of the Lenders (i) a one-time arrangement fee ("Facility Fee") in the
amount of $17,500, to be shared among the Lenders based on their respective
Percentages; and (ii) a one-time agency fee ("Agency Fee") in the amount of
$5,000 to be retained in full by Administrative Agent. The Facility Fee and
Agency Fee shall each be paid by Borrower on the Agreement Execution Date.
2.8 Minimum Amount of Each Advance. Each LIBOR Advance shall be in the
minimum amount of $1,000,000 (and in multiples of $100,000 if in excess
thereof), and each Base Rate Advance shall be in the minimum amount of $250,000
(and in multiples of $100,000 if in excess thereof), provided, however, that any
Base Rate Advance may be in the amount of the unused Aggregate Commitment.
2.9 Interest.
(a) The outstanding principal balance under the Notes shall
bear interest from time to time at a rate per annum equal to:
(i) the Adjusted Base Rate; or
(ii) at the election of Borrower with respect to
all or portions of the Obligations, the Adjusted LIBOR Rate.
(b) All interest shall be calculated for actual days elapsed
on the basis of a 360 day year. Interest accrued on each Advance shall be
payable in arrears on the first day of each calendar month, commencing with the
first such date to occur after the date hereof, and the Maturity Date. Interest
shall not be payable for the day of any payment on the amount paid if payment is
received by Administrative Agent prior to noon (Chicago time). If any payment of
principal or interest under the Notes shall become due on a day that is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a payment of principal, such extension of time shall be
included in computing interest due in connection with such payment.
2.10 Selection of Rate Options and LIBOR Interest Periods.
(a) Borrower, from time to time, may select the Rate Option
and, in the case of each LIBOR Advance, the commencement date (which shall be a
Business Day) and the length of the LIBOR Interest Period applicable to each
LIBOR Advance. Borrower shall give Administrative Agent irrevocable notice (a
"Borrowing Notice") not later than 11:00 a.m. (Chicago time) (i) at least one
Business Day prior to a Base Rate Advance, and (ii) at least three (3) Business
Days prior to a ratable LIBOR Advance, specifying:
(i) the Borrowing Date, which shall be a
Business Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the type of Advance selected, and
(iv) in the case of each LIBOR Advance, the LIBOR
Interest Period applicable thereto.
The Borrower shall also deliver together with each Borrowing Notice the
compliance certificate required in Section 5.2, if required, and otherwise
comply with the conditions set forth in Section 5.2 for Advances. Administrative
Agent shall use reasonable efforts to provide each Lender by facsimile with a
copy of each Borrowing Notice and compliance certificate on the same Business
Day it is received.
Not later than noon (Chicago time) on each Borrowing Date, each Lender
shall make available its Loan or Loans, in funds immediately available in
Chicago to the Administrative Agent. Administrative Agent will promptly make the
funds so received from the Lenders available to the Borrower.
(b) Administrative Agent shall, as soon as practicable after
receipt of a Borrowing Notice requesting a LIBOR Advance, determine the Adjusted
LIBOR Rate applicable to the requested ratable LIBOR Advance and inform Borrower
and Lenders of the same. Each determination of the Adjusted LIBOR Rate by
Administrative Agent shall be conclusive and binding upon Borrower in the
absence of manifest error.
(c) If Borrower shall prepay a LIBOR Advance other than on the
last day of the LIBOR Interest Period applicable thereto, Borrower shall be
responsible to pay all amounts due to Lenders as required by Section 4.4 hereof.
(d) As of the end of each LIBOR Interest Period selected for a
ratable LIBOR Advance, the interest rate on the LIBOR Advance will become the
Adjusted Base Rate, unless
Borrower has once again selected a LIBOR Interest Period in accordance with the
timing and procedures set forth in Section 2.10(g).
(e) The right of Borrower to select the Adjusted LIBOR Rate
for an Advance pursuant to this Agreement is subject to the availability to
Lenders of a similar option. If Administrative Agent determines that (i)
deposits of Dollars in an amount approximately equal to the LIBOR Advance for
which the Borrower wishes to select the Adjusted LIBOR Rate are not generally
available at such time in the London interbank eurodollar market, or (ii) the
rate at which the deposits described in subsection (i) herein are being offered
will not adequately and fairly reflect the costs to Lenders of maintaining an
Adjusted LIBOR Rate on an Advance or of funding the same in such market for such
LIBOR Interest Period, or (iii) reasonable means do not exist for determining an
Adjusted LIBOR Rate, or (iv) the Adjusted LIBOR Rate would be in excess of the
maximum interest rate which Borrower may by law pay, then in any of such events,
Administrative Agent shall so notify Borrower and Lenders and such Advance shall
bear interest at the Adjusted Base Rate.
(f) In no event may Borrower elect a LIBOR Interest Period
which would extend beyond the Maturity Date. In no event may Borrower have more
than five (5) different LIBOR Interest Periods for LIBOR Advances outstanding at
any one time.
(g) Conversion and Continuation.
(i) Borrower may elect from time to time, subject to
the other provisions of this Section 2.10, to convert all or
any part of a ratable Advance into any other type of Advance;
provided that any conversion of a ratable LIBOR Advance shall
be made on, and only on, the last day of the LIBOR Interest
Period applicable thereto.
(ii) Base Rate Advances shall continue as Base Rate
Advances unless and until such Base Rate Advances are
converted into ratable LIBOR Advances pursuant to a
Conversion/Continuation Notice from Borrower in accordance
with Section 2.10(g)(iv). Ratable LIBOR Advances shall
continue until the end of the then applicable LIBOR Interest
Period therefor, at which time each such Advance shall be
automatically converted into a Base Rate Advance unless the
Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice in accordance with Section
2.10(g)(iv) requesting that, at the end of such LIBOR Interest
Period, such Advance either continue as an Advance of such
type for an additional LIBOR Interest Period of the same or
different duration.
(iii) Notwithstanding anything to the contrary
contained in this Section 2, no Advance may be converted into
a LIBOR Advance or continued (following the end of a LIBOR
Interest Period) as a LIBOR Advance when any Monetary Default
or Event of Default has occurred and is continuing.
(iv) The Borrower shall give the Administrative Agent
irrevocable notice (a "Conversion/Continuation Notice") of
each conversion of an Advance or continuation of a LIBOR
Advance not later than 11:00 a.m. (Chicago time) on the
Business Day immediately preceding the date of the requested
conversion, in the case of a conversion into a Base Rate
Advance, or 11:00 a.m. (Chicago time) at least three (3)
Business Days prior to the date of the requested conversion or
continuation,
in the case of a conversion into or continuation of a ratable
LIBOR Advance, specifying: (1) the requested date (which shall
be a Business Day) of such conversion or continuation; (2) the
amount and type of the Advance to be converted or continued;
and (3) the amounts and type(s) of Advance(s) into which such
Advance is to be converted or continued and, in the case of a
conversion into or continuation of a ratable LIBOR Advance,
the duration of the LIBOR Interest Period applicable thereto.
2.11 Method of Payment. All payments of the Obligations hereunder shall
be made, without set-off, deduction, or counterclaim, by wire transfer to
Administrative Agent's account designated in writing from time to time by notice
to Borrower or, in the absence of such notice, to Administrative Agent at its
address specified herein, or at any other Lending Installation specified in
writing by Administrative Agent to Borrower, by noon (local time) on the date
when due and shall be applied ratably by Administrative Agent among the Lenders,
except as otherwise provided herein. Each payment delivered to Administrative
Agent for the account of any Lender shall be delivered promptly by
Administrative Agent to such Lender in the same type of funds that
Administrative Agent received at its address specified herein or at any Lending
Installation specified in a notice received by Administrative Agent from such
Lender. Administrative Agent is hereby authorized to charge any accounts of
Borrower maintained with BOFA for each payment of principal, interest and fees
as it becomes due hereunder.
2.12 Default. Notwithstanding the foregoing, during the continuance of
a Monetary Default, any other material Default, or any Event of Default,
Borrower shall not have the right to request a LIBOR Advance, continue or select
a new LIBOR Interest Period for an existing ratable LIBOR Advance or convert any
Base Rate Advance to a ratable LIBOR Advance. During the continuance of a
Monetary Default or any Event of Default, outstanding Advances shall bear
interest at the applicable Default Rates until such Monetary Default or Event of
Default ceases to exist or the Obligations are paid in full.
2.13 Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written notice to
the Administrative Agent and Borrower, designate a Lending Installation through
which Loans will be made by it and for whose account payments are to be made.
2.14 Non-Receipt of Funds by Administrative Agent. Unless Borrower or a
Lender, as the case may be, has notified Administrative Agent prior to the date
on which it is scheduled to make payment to Administrative Agent of (i) in the
case of a Lender, an Advance, or (ii) in the case of Borrower, a payment of
principal, interest or fees to the Administrative Agent for the account of the
Administrative Agent or any or all of the Lenders, that it does not intend to
make such payment (which notice shall not affect the obligations of Borrower or
any Lender, as the case may be, hereunder), and such notice has been received by
Administrative Agent, Administrative Agent may assume that such payment will be
made when due. Administrative Agent may, but shall not be obligated to, make the
amount of such payment available to the intended recipient in reliance upon such
assumption. If such Lender or Borrower, as the case may be, has not in fact made
such payment to Administrative Agent, the recipient of such payment shall, on
demand by Administrative Agent, repay to Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by
Administrative Agent until the date Administrative Agent recovers such amount at
a
rate per annum equal to (i) in the case of payment by a Lender, the Federal
Funds Effective Rate (as determined by Administrative Agent) for such day or
(ii) in the case of payment by Borrower, the interest rate applicable to the
relevant Advance.
2.15 Application of Moneys Received. All moneys collected or received by
the Administrative Agent on account of the Facility directly or indirectly,
shall be applied in the following order of priority:
(i) to the payment of all expenses then due and payable by Borrower
hereunder, including, without limitation, costs incurred in the collection of
such moneys;
(ii) to the reimbursement of any yield protection due to any of the Lenders
in accordance with Section 4.1;
(iii) to the payment of all indemnity obligations then due and payable by
Borrower hereunder;
(iv) to payment of all fees then due to the Administrative Agent;
(v) to the payment of any Non-Use Fee and Facility Fee, if then due, and to
the payment of all fees due hereunder;
(vi) first to interest until paid in full and then to principal for all
Lenders (other than Defaulting Lenders), in accordance with the respective
Funded Percentages of the Lenders;
(vii) any other sums due to the Administrative Agent or any Lender under
any of the Loan Documents; and
(viii) to the payment of any sums due to each Defaulting Lender as their
respective Percentages appear (provided that Administrative Agent shall have the
right to set-off against such sums any amounts due from such Defaulting Lender).
2.16 Voluntary Reduction of Aggregate Commitment Amount. Upon at least
five (5) days prior irrevocable written notice (or telephone notice promptly
confirmed in writing) to the Administrative Agent, Borrower shall have the
right, without premium or penalty, to terminate the Aggregate Commitment in
whole or in part provided that (a) Borrower may not reduce the Aggregate
Commitment below the Allocated Facility Amount at the time of such requested
reduction, and (b) any such partial termination shall be in the minimum
aggregate amount of Five Million Dollars ($5,000,000.00) or any integral
multiple of Five Million Dollars ($5,000,000.00) in excess thereof. Any partial
termination of the Aggregate Commitment shall be applied pro rata to each
Lender's Commitment.
ARTICLE III
INTENTIONALLY DELETED
ARTICLE IV
CHANGE IN CIRCUMSTANCES
4.1 Yield Protection. If the adoption of or change in any law or any
governmental or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any interpretation
thereof, or the compliance of any Lender therewith,
(i) subjects any Lender or any applicable Lending
Installation to any tax, duty, charge or withholding on or
from payments due from Borrower (excluding federal and state
taxation of the overall net income of any Lender or applicable
Lending Installation), or changes the basis of such taxation
of payments to any Lender in respect of its Loans or other
amounts due it hereunder, or
(ii) imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or
similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender or any
applicable Lending Installation (including reserves and
assessments relating to LIBOR Advances), or
(iii) imposes any other condition, and the result is
to increase the cost of any Lender or any applicable Lending
Installation of making, funding or maintaining Loans or
reduces any amount receivable by any Lender or any applicable
Lending Installation in connection with Loans, or requires any
Lender or any applicable Lending Installation to make any
payment calculated by reference to the amount of Loans held,
or interest received by it, by an amount deemed material by
such Lender,
then, within fifteen (15) days after written demand by such Lender describing
the basis for such demand, Borrower shall pay such Lender that portion of such
increased expense incurred or reduction in an amount received which such Lender
determines is attributable to making, funding and maintaining its Loans and its
Commitment.
4.2 Changes in Capital Adequacy Regulations. If a Lender determines the
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporate entity controlling such
Lender is increased as a result of a Change (as defined below), then, within
fifteen (15) days after written demand by such Lender, Borrower shall pay such
Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender determines is
attributable to this Agreement, its Loans, or its obligation to make Loans
hereunder (after taking into account such Lender's policies as to capital
adequacy). "Change" means (i) any change after the date of this Agreement in the
Risk-Based Capital Guidelines (as defined below) or (ii) any adoption of or
change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any Lending Installation
or any corporation controlling any Lender. "Risk-Based Capital Guidelines" means
(i) the risk-based capital guidelines in effect in the United States on the date
of this Agreement, including transition rules, and (ii) the corresponding
capital regulations promulgated by regulatory authorities outside the United
States implementing the July 1988 report of the Basle Committee on Banking
Regulation and Supervisory Practices Entitled "International Convergence of
Capital Measurements and Capital Standards", including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
Without in any way affecting the Borrower's obligation to pay compensation
actually claimed by a Lender under this Section 4.2, the Borrower shall have the
right to replace any Lender which has demanded such compensation with a
replacement Lender acceptable to Administrative Agent; provided, however, that
no Monetary Default, other material Default or any Event of Default shall then
exist, and that Borrower notifies such Lender that it has elected to replace
such Lender and notifies such Lender and the Administrative Agent of the
identity of the proposed replacement Lender not more than sixty (60) days after
the date of such Lender's most recent demand for compensation under this Section
4.2. The Lender being replaced shall assign its Percentage of the Aggregate
Commitment and its rights and obligations under this Facility to the replacement
Lender in accordance with the requirements of Section 13.3 hereof and the
replacement Lender shall assume such Percentage of the Aggregate Commitment and
the related obligations under this Facility, all pursuant to an assignment
agreement substantially in the form of Exhibit H hereto. The purchase by the
replacement Lender shall be at par (plus all accrued and unpaid interest and any
other sums owed to such Lender being replaced hereunder) which shall be paid to
the Lender being replaced upon the execution and delivery of the assignment.
4.3 Availability of LIBOR Advances. If any Lender determines that
maintenance of any of its Loans bearing interest at the Adjusted LIBOR Rate at a
suitable Lending Installation would violate any applicable law, rule, regulation
or directive of any Governmental Authority having jurisdiction, the
Administrative Agent shall suspend by written notice to Borrower the
availability of outstanding LIBOR Advances and require any outstanding LIBOR
Advances to be repaid. If the Majority Lenders determine that deposits of a type
or maturity appropriate to match fund LIBOR Advances are not available, the
Administrative Agent shall suspend by written notice to Borrower the
availability of LIBOR Advances from and after the date of any such
determination. If the Majority Lenders determine that an interest rate
applicable to a LIBOR Advance does not accurately reflect the cost of making a
LIBOR Advance, and, if for any reason whatsoever the provisions of Section 4.1
are inapplicable, the Administrative Agent shall suspend by written notice to
Borrower the availability of LIBOR Advances from and after the date of any such
determination.
4.4 Funding Indemnification. If any payment of a LIBOR Advance occurs
on a date which is not the last day of the LIBOR Interest Period, whether
because of acceleration, prepayment or otherwise, or a LIBOR Advance is not made
on the date specified by Borrower for any reason other than default by one or
more of the Lenders, Borrower will indemnify and hold harmless each Lender from
and against any loss, damage, expense or cost incurred by such Lender resulting
therefrom, including, without limitation, any loss, damage, expense or cost in
liquidating or employing deposits acquired to fund or maintain the LIBOR
Advance.
4.5 Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its LIBOR Advances to reduce any liability of Borrower to such Lender
under Sections 4.1 and 4.2 or to avoid the unavailability of a LIBOR Advance, so
long as such designation is not disadvantageous to such Lender. Each Lender
shall deliver a written statement of such Lender as to the amount due, if any,
under Sections 4.1, 4.2 or 4.4 hereof. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined such amount
and shall be final, conclusive and
binding on Borrower in the absence of manifest error. Determination of amounts
payable under such Sections in connection with a LIBOR Advance shall be
calculated as though each Lender funded its LIBOR Advance through the purchase
of a deposit of the type and maturity corresponding to the deposit used as a
reference in determining the Adjusted LIBOR Rate applicable to such Advance,
whether in fact that is the case or not. Unless otherwise provided herein, the
amount specified in the written statement shall be payable on demand after
receipt by Borrower of the written statement. The obligations of Borrower under
Sections 4.1, 4.2 and 4.4 hereof shall survive payment of the Obligations and
termination of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions Precedent to Closing. The Lenders shall not be required
to make the initial Advance hereunder unless (i) the Borrower shall have paid
all fees then due and payable to the Lenders and the Administrative Agent
hereunder, (ii) all of the conditions set forth in Section 5.2 are satisfied,
and (iii) the Borrower shall have furnished to the Administrative Agent, in form
and substance satisfactory to the Lenders and their counsel and with sufficient
copies for the Lenders, the following:
(a) Certificates of Limited Partnership/Incorporation. A copy
of the Certificate of Limited Partnership for the Borrower and a copy of the
articles of incorporation or other applicable organizational documents of each
of General Partner and the other Guarantors, each certified by the appropriate
Secretary of State or equivalent state official.
(b) Agreements of Limited Partnership/Bylaws. A copy of the
Agreement of Limited Partnership for the Borrower and a copy of the bylaws,
partnership agreement, operating agreement or other applicable governing
instrument of each of the General Partner and the other Guarantors, including
all amendments thereto, each certified by the Secretary or other appropriate
officer of the Person in question as being in full force and effect on the
Agreement Execution Date.
(c) Good Standing Certificates. A certified copy of a
certificate from the Secretary of State or equivalent state official of the
states where each of the Borrower, General Partner and each other Guarantor are
organized, dated as of the most recent practicable date, showing the good
standing or partnership qualification (if issued) of each of Borrower, General
Partner and each other Guarantor.
(d) Foreign Qualification Certificates. A certified copy of a
certificate from the Secretary of State or equivalent state official of the
state where each of the Borrower, General Partner and the other Guarantors
maintain its principal place of business, dated as of the most recent
practicable date, showing the qualification to transact business in such state
as a foreign entity, for each of Borrower, General Partner and the other
Guarantors.
(e) Resolutions. A copy of a resolution or resolutions adopted
by the Board of Directors or other applicable governing body of each of the
General Partner and the other Guarantors, certified by the Secretary or other
appropriate officer of the Person in question as being in full force and effect
on the Agreement Execution Date, authorizing the execution, delivery and
performance of the Loan Documents to which such Person is a party and the
consummation of the transactions provided for therein.
(f) Incumbency Certificate. A certificate for each of the
General Partner and the other Guarantors, signed by the Secretary or other
appropriate officer of the Person in question and dated the Agreement Execution
Date, as to the incumbency, and containing the specimen signature or signatures,
of the Persons authorized to execute and deliver the Loan Documents to be
executed and delivered by such entity.
(g) Loan Documents. Originals of the Loan Documents (in such quantities as
the Lenders may reasonably request), duly executed by authorized officers of the
appropriate entity.
(h) Opinion of Borrower's Counsel. A written opinion, dated
the Agreement Execution Date, from outside counsel for the Borrower which
counsel is reasonably satisfactory to Administrative Agent, substantially in the
form attached hereto as Exhibit C.
(i) Opinion of Guarantor's Counsel. A written opinion, dated
the Agreement Execution Date, from outside counsel for the Guarantors which
counsel is reasonably satisfactory to Administrative Agent, substantially in the
form attached hereto as Exhibit D.
(j) Compliance Certificate. An original compliance certificate in the form
attached hereto as Exhibit F, duly executed by a Qualified Officer of Borrower.
(k) Financial and Related Information. The following information:
(i) A certificate, signed by an executive officer of
the Borrower, stating that on the Agreement Execution Date no
Default or Event of Default has occurred and is continuing and
that all representations and warranties of the Borrower
contained herein are true and correct as of the Agreement
Execution Date as and to the extent set forth herein;
(ii) The most recent consolidated annual and
quarterly financial statements of the Borrower and a
certificate from a Qualified Officer of the Borrower that no
change in the Borrower's financial condition that could have a
Material Adverse Effect has occurred since September 30, 1997;
(iii) Evidence of sufficient Unencumbered Assets
[which evidence may include pay-off letters (together with
evidence of payment or a direction of Borrower to use a
portion of the proceeds of the Advances to repay such
Indebtedness), mortgage releases and/or title policies] to
assist the Administrative Agent in determining the Borrower's
compliance with the covenants set forth in Article VII and
Article IX herein;
(iv) Written money transfer instructions, in
substantially the form of Exhibit E hereto, addressed to the
Administrative Agent and signed by a Qualified Officer of
Borrower, together with such other related money transfer
authorizations as the Administrative Agent may have reasonably
requested; and
(v) Operating statements for the Unencumbered Assets
and other evidence of income and expenses to assist the
Administrative Agent in determining Borrower's compliance with
the covenants set forth in Articles VII, VIII and IX herein.
(l) Other Evidence as any Lender May Require. Such other
documents and evidence as the Administrative Agent and any Lender may reasonably
request to fully effectuate and establish the consummation of the transactions
contemplated hereby, the taking of all necessary actions in any proceedings in
connection herewith and compliance with the conditions set forth in this
Agreement.
5.2 Conditions Precedent to Subsequent Advances. Advances after the
initial Advance shall be made from time to time as requested by Borrower, and
the obligation of each Lender to make any Loan for any such Advance are subject
to the following terms and conditions:
(a) prior to and at the time of each such Advance or issuance,
no Default or Event of Default shall have occurred and be continuing under this
Agreement or any of the Loan Documents and, if required by Administrative Agent,
Borrower shall deliver a certificate of Borrower to such effect; and
(b) The representations and warranties contained in Article VI
are true and correct as of such Borrowing Date or date of conversion and/or
continuation as and to the extent set forth therein, except to the extent any
such representation or warranty is stated to relate solely to an earlier date,
in which case such representation or warranty shall be true and correct on and
as of such earlier date.
(c) As to each Subsidiary that executes and delivers a
Guaranty after the Agreement Execution Date (or that is required to do so), the
Borrower has delivered to the Administrative Agent the items described in
subsections (a) through (g) of Section 5.1 hereof.
Each Borrowing Notice and Conversion/Continuation Notice shall
constitute a representation and warranty by the Borrower that the conditions
contained in Sections 5.2(a) through (c) have been satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants that:
6.1 Existence. Attached hereto as Schedule 6.1 (as updated from time to
time in accordance with this Agreement) is a table showing, for each Credit
Party, its organizational form (e.g., corporation, partnership, limited
liability company, etc.), state of organization, state in which its principal
place of business is located, owner(s) of its Capital Stock and percentage
ownership interest. Each Credit Party is an entity of the type indicated for
such Credit Party on Schedule 6.1 (as updated from time to time) duly organized
and validly existing under the laws of the state of its organization as
indicated on Schedule 6.1 (as updated from time to time), with its principal
place of business in the state indicated for such Credit Party on Schedule 6.1
(as updated from time to time), and is duly qualified as a foreign entity,
properly licensed (if required), in good standing and has all requisite
authority to conduct its business in each jurisdiction in which it owns any
Property and, except where the failure to be so qualified or to obtain such
authority would not have a Material Adverse Effect, in each other jurisdiction
in which the nature of its business or activities requires such qualification or
authority. Each Subsidiary of each Credit Party is duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization
and has all requisite authority to conduct its business in each jurisdiction in
which it owns any Property, and except where the failure to be so qualified or
to obtain such authority would not have a Material Adverse Effect, in each other
jurisdiction in which the nature of its business or activities requires such
qualification.
6.2 Corporate/Partnership Powers. The execution, delivery and
performance of the Loan Documents required to be delivered by each Credit Party
hereunder are within the authority of such entity and the powers of the Borrower
under its partnership agent have been duly authorized by all requisite action,
and are not in conflict with the terms of any organizational instruments of such
entity, or any instrument or agreement to which such Credit Party is a party or
by which such Credit Party or any of its respective assets may be bound or
affected.
6.3 Power of Officers. The officers of each Credit Party executing the
Loan Documents required to be delivered by such entities or by the Borrower
hereunder have been duly elected or appointed and were fully authorized to
execute the same at the time each such agreement, certificate or instrument was
executed.
6.4 Government and Other Approvals. No approval, consent, exemption or
other action by, or notice to or filing with, any governmental authority is
necessary in connection with the execution, delivery or performance of any of
the Loan Documents by any of the Credit Parties. No other consent to or approval
of the transactions contemplated hereunder is required from any ground lessor,
mortgagee, beneficiary under a deed of trust or any other Person, except as has
been delivered to the Lenders on or before the Agreement Execution Date.
6.5 Solvency. Immediately after the Agreement Execution Date and
immediately following the making of each Advance and after giving effect to the
application of the proceeds of such Advance, each of the Credit Parties will be
Solvent.
6.6 Compliance With Laws and Agreements. There is no judgment, decree or
order or any law, rule or regulation of any court or governmental authority
binding on any of the Credit
Parties or any of their respective assets which would be violated or contravened
by the execution, delivery or performance of the Loan Documents. The Credit
Parties and their respective Property and other assets are in substantial
compliance with applicable laws, and with all material leases, licenses and
other agreements to which any Credit Party is a party or by which such Credit
Party or any of its assets is bound. No other party to any such lease, license
or other agreement is in default thereunder in any material respect.
6.7 Enforceability of Agreement. This Agreement and each of the other
Loan Documents is (or, when fully executed and delivered, will be) the legal,
valid and binding agreement of each of the Credit Parties thereto, enforceable
against each such Credit Party in accordance with its respective terms, except
to the extent that such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting the rights of
creditors generally.
6.8 Title to Property. Borrower or its Subsidiaries has fee simple
title (subject only to Permitted Liens) to the Property and assets reflected in
Borrower's consolidated financial statements most recently delivered to the
Administrative Agent as owned by it or any such Subsidiary, free and clear of
Liens except for the Permitted Liens. Neither the execution, delivery nor
performance of the Loan Documents required by the Credit Parties will result in
the creation of any Lien on the Property or such assets. Borrower and its
Subsidiaries either own, or have entered into valid leases, licenses and other
agreements for, all assets, services and facilities necessary for the conduct of
their respective businesses and the operation of their respective assets.
6.9 Litigation. There are no suits, arbitrations, claims, disputes or
other proceedings (including, without limitation, any civil, criminal,
administrative or environmental proceedings), pending or, to the best of
Borrower's knowledge after due inquiry, threatened against or affecting the
Borrower, any of the other Credit Parties or any of the Property, the adverse
determination of which individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect, except as disclosed on Schedule 6.9
hereto.
6.10 Events of Default. No Default or Event of Default has occurred and
is continuing or would result from the incurring of obligations by any of the
Credit Parties under any of the Loan Documents or any other document to which
any of the Credit Parties is a party.
6.11 Investment Company Act of 1940. None of the Credit Parties is an
investment company within the meaning of the Investment Company Act of 1940 and
none of the Credit Parties will become such an investment company.
6.12 Public Utility Holding Company Act. None of the Credit Parties 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 definitions of the Public Utility Holding Company Act of
1935, as amended.
6.13 Regulation U. The proceeds of the Advances will not be used,
directly or indirectly, to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin Stock.
6.14 No Material Adverse Financial Change. There has been no Material
Adverse Financial Change since the date of the financial and/or operating
statements most recently submitted to the Lenders.
6.15 Financial Information. All financial statements and operating
statements furnished to the Lenders by or at the direction of any of the Credit
Parties and all other financial information and data furnished by any of the
Credit Parties to the Lenders are complete and correct in all material respects
as of the date thereof, and such statements have been prepared in accordance
with GAAP and fairly present the consolidated financial condition and results of
operations of the Credit Parties and the Property as of such date. None of the
Credit Parties has any contingent obligations, liabilities for taxes or other
outstanding financial obligations which are material in the aggregate, except as
disclosed in such statements, information and data.
6.16 Factual Information. All factual information heretofore or
contemporaneously furnished by or on behalf of any of the Credit Parties to the
Lenders for purposes of or in connection with this Agreement and the other Loan
Documents and the transactions contemplated therein is, and all other such
factual information hereafter furnished by or on behalf of any of the Credit
Parties to the Lenders will be, true and accurate in all material respects on
the date as of which such information is dated or certified and not incomplete
by omitting to state any material fact necessary to make such information not
misleading at such time.
6.17 ERISA. (i) None of the Credit Parties is an entity deemed to hold
"plan assets" within the meaning of ERISA or any regulations promulgated
thereunder of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan within the meaning of Section
4975 of the Code, and (ii) the execution of this Agreement and the other Loan
Documents and the transactions contemplated hereunder and thereunder do not give
rise to a prohibited transaction within the meaning of Section 406 of ERISA or
Section 4975 of the Code.
6.18 Taxes. All required tax returns have been filed by each of the
Credit Parties with the appropriate authorities except to the extent that
extensions of time to file have been requested, granted and have not expired or
except to the extent such taxes are being contested in good faith by appropriate
proceedings and for which adequate reserves, in accordance with GAAP, are being
maintained.
6.19 Environmental Matters. Except as disclosed in Schedule 6.19:
(i) The Property does not contain any Materials of
Environmental Concern in amounts or concentrations which
constitute a violation of, or could reasonably be expected to
give rise to liability under, Environmental Laws.
(ii) None of Borrower, its Subsidiaries or Investment
Affiliates has received any written notice alleging that any
or all of the Property or any or all of the operations at the
Property are not in compliance with all applicable
Environmental Laws, or alleging the existence of any
contamination at or under such Property in amounts or
concentrations which constitute a violation of any
Environmental Law.
(iii) To the best of Borrowers knowledge after due
inquiry, no notice, violation, non-compliance or liability
referred to in Section 6.19(ii) above is threatened, and no
condition, fact or circumstance exists that could reasonably
be expected to result in such notice, violation,
non-compliance or liability.
(iv) During the ownership of the Property by any
or all of Borrower,its Subsidiaries and Investment Affiliates,
no materials defined as hazardous or toxic
by, or otherwise regulated under, any Environmental Laws
("Materials") have been released, transported or disposed of,
or otherwise migrated, from the Property in violation of, or
in a manner or to a location which could reasonably be
excepted to give rise to liability under any applicable
Environmental Laws, nor during the ownership of the Property
by any or all of Borrower, its Subsidiaries and Investment
Affiliates have any Materials been generated, treated, stored,
abandoned or disposed of at, on or under any of such Property
in violation of, or in a manner that could reasonably be
expected to give rise to liability under any applicable
Environmental Laws. To the best knowledge of Borrower after
due inquiry, no such release, transport, disposal, migration,
generation, treatment, abandonment or storage from, at, on or
under any of the Property occurred, prior to ownership thereof
by Borrower, its Subsidiaries and Investment Affiliates, in
violation of, or in a manner or to a location which could
reasonably be expected to give rise to liability under, any
applicable Environmental Laws.
(v) No judicial proceedings or governmental or
administrative action is pending, or, to the best knowledge of
Borrower after due inquiry, threatened, under any
Environmental Law to which Borrower, any of its Subsidiaries
or any Investment Affiliate is named as a party with respect
to any of the Property, nor are there any consent or other
decrees, orders, or other administrative or judicial decisions
or requirements outstanding under any Environmental Law with
respect to such Property.
6.20 Insurance. Borrower has obtained, and fully paid all premiums due
on, the following policies or binders of insurance on the Properties, all of
which shall be issued by companies with a Best Insurance Reports (1992)
Policyholder's and Financial Size Rating of "A-1X" or better:
(i) Property insurance (including coverage for flood
and other water damage for any Properties located within a
100-year flood plain) in the amount of 100 percent of the
replacement cost of the improvements at the Propertie;
(ii) Loss of rental income insurance in the
amount not less than one year's Gross Revenues from the
Properties; and
(iii) Commercial general liability insurance in
the amount of at least $5,000,000 per occurrence.
All insurance must be carried by companies with a
Best Insurance Reports (1992) Policyholder's and Financial
Size Rating of "A-IX" or better.
6.21 No Brokers. None of the Credit Parties has dealt with any brokers,
finders or other intermediaries in connection with this Facility, and no fees,
commissions or other compensation are payable by or to any such Person in
connection with this Agreement or the Advances. Lenders shall not be responsible
for the payment of any fees or commissions to any brokers, finders or other
intermediaries and Borrower shall indemnify, defend and hold Lenders harmless
from and against any claims, liabilities, obligations, damages, costs and
expenses (including attorneys' fees and disbursements) made against or incurred
by Lenders as a result of claims made or actions instituted by any brokers,
finders or other intermediaries claiming by, through or under any of the Credit
Parties in connection with the Facility.
6.22 No Violation of Usury Laws. No aspect of any of the transactions
contemplated herein or in any of the other Loan Documents violates or will
violate any applicable usury laws or laws regarding the validity of agreements
to pay interest.
6.23 Not a Foreign Person. None of the Credit Parties is a "foreign person"
within the meaning of Section 1445 or Section 7701 of the Code.
6.24 No Trade Name. Except as otherwise set forth on Schedule 6.24
attached hereto, none of the Credit Parties uses any trade name and has not and
does not do business under any name other than their actual names set forth
herein.
6.25 Subsidiaries. Schedule 6.25 (as updated from time to time in
accordance with this Agreement) hereto contains an accurate list of all of the
Subsidiaries of each of the Credit Parties, which Subsidiaries are not
themselves Credit Parties, and of all of the Investment Affiliates of each of
the Credit Parties, setting forth their respective jurisdictions of formation,
the percentage of their respective Capital Stock owned by each Credit Party and
the Property owned by them. All of the issued and outstanding shares of Capital
Stock of all of the direct and indirect Subsidiaries and Investment Affiliates
of Borrower have been duly authorized and issued and are fully paid and non
assessable. All of such Capital Stock owned directly or indirectly by Borrower
is free and clear of Liens, except as otherwise specifically noted on Schedule
6.25 (as updated from time to time).
6.26 Properties. Schedule 6.26 hereto (as updated from time to time in
accordance with the terms of this Agreement) contains a complete and accurate
description, as of the Agreement Execution Date and the date of each update of
Schedule 6.26 submitted by Borrower from time to time in accordance with the
terms of this Agreement, of each Property, including the name of the entity that
owns each such Property, and whether such Property is Eligible Land, Land, a
Project, and/or an Unencumbered Asset. With respect to each Property, Borrower
hereby represents and warrants as follows:
(a) Except as set forth on Schedule 6.26, no portion of any
improvement on any such Property is located in an area identified by the
Secretary of Housing and Urban Development or any successor thereto as an area
having special flood hazards pursuant to the National Flood Insurance Act of
1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor
law, or, if located within any such area, Borrower has obtained and will
maintain the insurance prescribed in Section 6.20 hereof.
(b) To the Borrower's knowledge, except as set forth on
Schedule 6.26, each such Property and the development, use and occupancy thereof
are in material compliance with all applicable zoning ordinances (without
reliance upon adjoining or other properties), building codes, land use and
Environmental Laws, and other laws regulating the development, use and occupancy
of real property ("Applicable Laws").
(c) Except as set forth on Schedule 6.26, each such Property
is served by all utilities required for the current and contemplated uses
thereof. All utility service is provided by public utilities and the such
Property has accepted or is equipped to accept such utility service.
(d) Except as set forth on Schedule 6.26, all public roads and
streets necessary for service of and access to each such Property for the
current or contemplated use thereof have been completed, are serviceable and
all-weather and are physically and legally open for use by the public.
(e) Except as set forth on Schedule 6.26, each such Property is served by
public water and sewer systems.
(f) Except as set forth on Schedule 6.26, each such Property
is free of any patent or, to the best knowledge of Borrower and its
Subsidiaries, latent structural or other material defect or deficiency. Each
such Property is free of damage and waste that would materially and adversely
affect its value, is in good repair and there is no deferred maintenance other
than ordinary wear and tear. Each such Property is free from damage caused by
fire or other casualty. There is no pending or, to the best knowledge of
Borrower after due inquiry, threatened condemnation proceedings affecting any
such Property, or any material part thereof.
(g) Except as set forth on Schedule 6.26, all liquid and solid
waste disposal, septic and sewer systems located on each such Property are in a
good and safe condition and repair and are in compliance with all Applicable
Laws with respect to such systems.
(h) Except as set forth on Schedule 6.26, all improvements on
each such Property lie within the boundaries and building restrictions of the
legal description of record of such Property no such improvements encroach upon
any adjoining property, and no improvements on adjoining properties encroach
upon such Property or easements benefiting such Property. All amenities, access
routes or other items that benefit such Property are under direct control of
Borrower or one of its Subsidiaries, constitute permanent easements that benefit
all or part of such Property or are public property, and such Property by virtue
of such easements or otherwise, is contiguous to a physically open, dedicated
all weather public street, and has the necessary permits for ingress and egress.
(i) Except as set forth on Schedule 6.26, there are no
delinquent taxes, ground rents, water charges, sewer rents, assessments,
insurance premiums, leasehold payments, or other outstanding charges affecting
any such Property except to the extent such items are being contested in good
faith by appropriate proceedings and as to which adequate reserves have been
provided.
Except as set forth on Schedule 6.26, with respect to each
parcel of Eligible Land, each required performance bond,
surety or other security has been issued to and in favor
of and unconditionally accepted by each relevant
governmental authority, all plans, specifications and
drawings for improvements have been approved by all
relevant governmental authorities, and all necessary
easements, licenses, permits and other authorizations have
been granted for the development thereof (including,
without limitation, demolition, grading and construction
permits).
Any breach of the representations or warranties in this Section 6.26
shall disqualify such Property from being an Unencumbered Asset but shall not
per se constitute an Event of Default or Default under this Agreement.
6.27 Relationship of the Borrower. The Credit Parties are engaged as an
integrated group in the business of owning, developing operating and selling
real estate. The Credit Parties require financing on such a basis that funds can
be made available from time to time to such entities, to the extent required for
the continued successful operation of their integrated operations. The Advances
to be made to the Borrower under this Agreement are for the purpose of financing
the integrated operations of the Credit Parties, and each of the Credit Parties
expects to derive benefit, directly or indirectly, from the Advances, both
individually and as a member of the integrated group, since the
financial success of the operations of Borrower and each Guarantor is dependent
upon the continued successful performance of the integrated group as a whole.
6.28 No Side Deals. None of the Borrower or its Subsidiaries or
Affiliates have entered into any written or oral agreements, arrangements or
understandings with any Lender or any Affiliate of any Lender relating to the
Facility or the Loan Documents, except as otherwise disclosed in this Agreement.
ARTICLE VII
FINANCIAL COVENANTS
The Borrower covenants and agrees that, so long as the Commitment shall
remain in effect and until full and final payment of all Obligations, without
the prior written consent of the Majority Lenders, it shall not, and shall cause
the other Credit Parties not to:
7.1 Minimum Consolidated Net Worth. As of the end of any fiscal
quarter, permit Consolidated Net Worth to be less than the sum of (i)
$150,000,000, plus (ii) an amount equal to ninety percent (90%) of the aggregate
proceeds received by Borrower (net of customary related fees and expenses) in
connection with any equity offering (including the issuance of shares in the
General Partner or units in the Borrower) after the Agreement Execution Date.
7.2 Maximum Consolidated Leverage Ratio. As of the end of any fiscal
quarter, permit the ratio of Consolidated Total Indebtedness to exceed 50% of
the Gross Asset Value.
7.3 Minimum Consolidated Interest Coverage Ratio. As of the end of any
fiscal quarter, permit the ratio of Adjusted EBITDA to Interest Expense to be
less than 2.00:1.
7.4 Minimum Fixed Charge Coverage Ratio. As of the end of any fiscal
quarter, permit the ratio of Adjusted EBITDA to Fixed Charges to be less than
1.75:1.
7.5 Maximum Unencumbered Asset Coverage Ratio. As of the end of any fiscal
quarter, Consolidated Unsecured Debt to exceed 50% of the Value of Unencumbered
Assets.
7.6 Minimum Unencumbered Asset NOI to Unsecured Interest. As of the end
of any fiscal quarter, permit the ratio obtained by dividing (A) "Total
Unencumbered NOI" (as hereinafter defined) for such quarter by (B) "Unencumbered
Interest Expense" (as hereafter defined) on all Consolidated Unsecured Debt for
such quarter to be less than 2.00 to 1. For purposes of this Section 7.6, (1)
"Unencumbered Interest Expense" shall have the same meaning as Interest Expense
except that clause (iv) of such definition shall include only Indebtedness of
those Investment Affiliates that are also Eligible Joint Ventures, and (2)
"Total Unencumbered NOI" shall mean the sum of (i) Unencumbered NOI qualifying
for inclusion in the calculation of the Value of Unencumbered Assets for such
quarter (as such Unencumbered NOI is annualized); less a capital reserve equal
to the product of (a) $1.25, multiplied by (b) the aggregate amount of Leased
Space at those Projects constituting Unencumbered Assets for such period, plus
(ii) Unencumbered NOI for any Unencumbered Assets acquired or sold during such
quarter (as such Unencumbered NOI is annualized), less a capital reserve equal
to (a) $1.25, multiplied by (b) the weighted average of Leased Space at those
Projects constituting Unencumbered Assets for such period.
7.7 Maximum Secured Debt to Gross Asset Value. As of the end of any fiscal
quarter,
(i) prior to the earlier of (1) March 25, 1998 or (2) the repayment in full of
the Existing Facility permit Consolidated Secured Debt to exceed 45% of Gross
Asset Value, and (ii) thereafter, permit Consolidated Secured Debt to exceed 35%
of Gross Asset Value;
7.8 Maximum Dividend Payout Ratio. Pay out, in any fiscal quarter,
aggregate dividends to the shareholders of the General Partner in excess of 90%
of its Funds From Operations from such quarter.
Compliance with each of the foregoing financial covenants shall be measured and
certified as of September 30, 1997 and on the last day of each fiscal quarter in
accordance with Section 8.2 hereof.
ARTICLE VIII
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as the Commitment of any
Lender shall remain available and until the full and final payment of all
Obligations incurred under the Loan Documents they will:
8.1 Notices. Promptly give written notice to Administrative Agent
of:
(a) all litigation or arbitration proceedings affecting the Borrower or any
of the other Credit Parties where the amount claimed is $5,000,000 or more;
(b) any Default or Event of Default, specifying the nature and
the period of existence thereof and what action has been taken or been proposed
to be taken with respect thereto;
(c) all claims filed against any of the Property which, if adversely
determined, could have a Material Adverse Effect;
(d) the occurrence of any other event which might have a Material Adverse
Effect;
(e) any Reportable Event or any "prohibited transaction" (as such term is
defined in Section 4975 of the Code) in connection with any Plan or any trust
created thereunder, which may, singly or in the aggregate materially impair the
ability of any of the Credit Parties to repay any of its obligations under the
Loan Documents, describing the nature of each such event and the action, if any,
such Credit Party proposes to take with respect thereto;
(f) any notice from any federal, state, local or foreign authority
regarding any Hazardous Material, asbestos, or other environmental condition,
proceeding, order, claim or violation affecting any of the Properties.
8.2 Financial Statements, Reports. Etc. The Borrower shall maintain, for
itself and each entity in the Consolidated Operating Partnership, a system of
accounting established and administered in accordance with GAAP, and furnish to
the Lenders:
(i) as soon as available, but in any event not later than 45 days after the
close of each fiscal quarter, for the Consolidated Operating Partnership an
unaudited
consolidated balance sheet as of the close of each such period
and the related unaudited consolidated statements of income
and retained earnings and of cash flows of the Consolidated
Operating Partnership for such period and the portion of the
fiscal year through the end of such period, setting forth in
each case in comparative form the corresponding figures for
the previous year, all certified by a Qualified Officer of the
General Partner;
(ii) As soon as available, but in any event not later
than 45 days after the close of each fiscal quarter, for the
Consolidated Operating Partnership, related reports in form
and substance satisfactory to the Lenders, all certified by a
Qualified Officer of the General Partner, including updates of
Schedules 6.1, 6.25 and 6.26 of this Agreement, a statement of
Funds From Operations, a description of Unencumbered Assets, a
listing of capital expenditures (in the level of detail as
currently disclosed in Borrower's "Supplemental Information"),
a report listing and describing all newly formed or acquired
Subsidiaries and all newly acquired Properties, including
their cost and Indebtedness assumed in connection with such
acquisition, if any, summary information for all Property,
including, without limitation, occupancy rates (including
Leased Space), square footage, property type, date acquired or
built, Gross Revenues, Net Operating Income, operating
expenses, capital expenditures, the status of development, and
such other information as may be requested (including, without
limitation, operating statements) to evaluate the quarterly
compliance certificate delivered as provided below;
(iii) As soon as available but in no event later than
the fifth Business Day after the date such reports are to be
filed with the Securities Exchange Commission, copies of any
Forms 10K, 10Q, 8K, and, within ten (10) Business Days after
filing, any other annual, quarterly, monthly or other reports,
copies of all registration statements and any other public
information which the Consolidated Operating Partnership files
with the Securities Exchange Commission or other governmental
authority, and to the extent any of such reports contains
information furnished under other subsections of this Section
8.2, the information need not be separately furnished;
(iv) As soon as available, but in any event not later
than 90 days after the close of each fiscal year of the
Consolidated Operating Partnership, a consolidated and, if
available, consolidating balance sheet of the Consolidated
Operating Partnership as of the end of that fiscal year and
related consolidated and, if available, consolidating
statements of income, retained earnings, cash flows and
stockholders' equity for that fiscal year, in each case with
accompanying notes and schedules, prepared in accordance with
GAAP and audited by a firm of independent certified public
accountants of recognized standing selected by Borrower and
acceptable to the Administrative Agent, which accountants
shall have issued an unqualified audit report thereon;
(v) Within thirty (30) days after the beginning of
each fiscal year of Consolidated Operating Partnership, a
projection in reasonable detail and in form and substance
satisfactory to the Administrative Agent, on an annual basis,
of the assets, liabilities, cash flow and earnings of the
Consolidated Operating Partnership for that fiscal year and
the following fiscal year;
(vi) As soon as available, but in any event not later
than three Business Days after receipt thereof by any entity
in the Consolidated Operating Partnership, all quarterly
financial statements, operating reports and other financial
and operating information regarding Investment Affiliates
and/or Property owned by any Investment Affiliate;
(vii) As soon as available, but in any event not
later than 120 days after the close of each fiscal year of
each Investment Affiliate, a balance sheet of such Investment
Affiliate as of the end of that fiscal year and related
statements of income, retained earnings, cash flow and
stockholders' equity for that fiscal year, with accompanying
notes and schedules, prepared in accordance with GAAP and
audited by a firm of independent certified public accountants,
which accountants have issued an unqualified report thereon;
(viii) Not later than forty-five (45) days after the
end of each of the first three fiscal quarters, and not later
than ninety (90) days after the end of the fiscal year, a
compliance certificate in substantially the form of Exhibit F
hereto signed by a Qualified Officer of the General Partner
confirming that the Borrower is in compliance with all of the
covenants of the Loan Documents, showing the calculations and
computations necessary to determine compliance with the
financial covenants contained in this Agreement (including
such schedules and backup information as may be necessary to
demonstrate such compliance) and stating that no Default or
Event of Default exists, or if any Default or Event of Default
exists, stating the nature and status thereof;
(ix) As soon as possible and in any event within 10
Business Days after any Reportable Event has occurred with
respect to any Plan, a statement, signed by a Qualified
Officer of the General Partner, describing said Reportable
Event and within 20 days after such Reportable Event, a
statement signed by such officer describing the action which
Borrower proposes to take with respect thereto; and (b) within
10 Business Days of receipt, any notice from the Internal
Revenue Service, PBGC or Department of Labor with respect to a
Plan regarding any excise tax, proposed termination of a Plan,
prohibited transaction or fiduciary violation under ERISA or
the Code which could result in any liability to Borrower or
any member of the Controlled Group in excess of $100,000; and
(c) within 10 Business Days of filing, any Form 5500 filed by
Borrower with respect to a Plan, or any member of the
Controlled Group which includes a qualified accountant's
opinion.
(x) As soon as possible and in any event within 10
days after receipt by the Borrower, a copy of (a) any notice
or claim to the effect that any entity in the Consolidated
Operating Partnership or Investment Affiliate is or may be
liable to any Person as a result of the release by such
entity, or any of its Subsidiaries, or any other Person of any
toxic or hazardous waste or substance into the environment,
and (b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries or
Investment Affiliates, which, in either case, could be
reasonably likely to have a Material Adverse Effect;
(xi) Within thirty (30) days of the furnishing
thereof to the shareholders of the Borrower, copies of all
financial statements, reports, notices and proxy
statements so furnished, provided that to the extent any of
such information has been furnished under other subsections of
this Section 8.2, such information need not be separately
furnished;
(xii) As soon as possible, and in any event within 10
days after the Borrower knows of any fire or other casualty or
any pending or threatened condemnation or eminent domain
proceeding with respect to all or any material portion of any
of the Property, a statement signed by a Qualified Officer of
General Partner, describing such fire, casualty or
condemnation and the action Borrower intends to take with
respect thereto; and
(xiii) Such supplements to the foregoing documents
and other information (including, without limitation,
non-financial information) as the Administrative Agent or any
Lender may from time to time reasonably request.
8.3 Existence and Conduct of Operations. Except as otherwise expressly
permitted herein, the Borrower shall, and shall cause each of the other Credit
Parties to, maintain and preserve its existence and all rights, privileges and
franchises now enjoyed and necessary for the operation of its business,
including remaining in good standing in each jurisdiction in which business is
currently operated. The Borrower shall, and shall cause each of the other Credit
Parties to, carry on and conduct their respective businesses in substantially
the same manner and in substantially the same fields of enterprise as presently
conducted. The Borrower shall, and shall cause each of the other Credit Parties
to, do all things necessary to remain duly incorporated and/or duly qualified,
validly existing and in good standing as a real estate investment trust,
corporation, general partnership, limited liability company or limited
partnership, as the case may be, in its jurisdiction of incorporation/formation.
The Borrower shall, and shall cause each of the other Credit Parties to,
maintain all requisite authority to conduct its business in each jurisdiction in
which any of the Properties are located and, except where the failure to be so
qualified would not have a Material Adverse Effect, in each jurisdiction
required to carry on and conduct its businesses in substantially the same manner
as it is presently conducted, and, specifically, neither the Borrower nor its
Subsidiaries will undertake any business other than the acquisition,
development, ownership, management, operation and leasing of office properties
and ancillary businesses specifically related thereto, except that the Borrower
and its Subsidiaries and Investment Affiliates may invest in other assets
subject to the certain limitations contained herein with respect to the
following specified categories of assets: (i) Land; (ii) other property holdings
(excluding cash, Cash Equivalents, and Indebtedness of any Subsidiary to the
Borrower); (iii) stock holdings other than in Subsidiaries; (iv) mortgages; (v)
joint ventures and partnerships; and (vi) projects under development. The total
investment in any one of categories (i), (ii), (iv) or (v) shall not exceed 10%
of Gross Asset Value, the total investment in category (iii) shall not exceed
five percent (5%) of Gross Asset Value and the total investment in category (vi)
shall not exceed 15% of Gross Asset Value, and the total investment in all the
foregoing investment categories in the aggregate shall not exceed twenty-five
percent (25%) of Gross Asset Value. Notwithstanding anything to the contrary
contained in this Section 8.3, any Eligible Joint Venture which is one of the
Credit Parties will not be limited by the foregoing restrictions. For the
purposes of this Section 8.3, all investments in categories (i), (iii) and (iv)
shall be valued at the lower of acquisition cost or market value and the value
of any investment in category (ii) shall be calculated as the quotient of (x)
Net Operating Income generated from such investment, divided by (y) 15%.
8.4 Maintenance of Properties. The Borrower shall, and shall cause the
other Credit Parties to, maintain, preserve, protect and keep the Properties in
good and safe repair, working order
and condition, and make all necessary and proper repairs, renewals and
replacements.
8.5 Insurance. The Borrower shall, and shall cause the other Credit
Parties to, provide a certificate of insurance from all insurance carriers which
have issued policies with respect to any Properties within thirty (30) days
after the end of each fiscal year, evidencing that the insurance required to be
furnished to Lenders pursuant to Section 6.20 hereof is in full force and
effect. The Administrative Agent (for the benefit of the Lenders) shall be named
as a loss payee on each such policy of casualty insurance and as an additional
insured on each such policy of liability insurance, and all such policies of
insurance shall contain provisions to the effect that they may not be canceled
or materially changed without at least 30 days prior notice to Administrative
Agent. Borrower shall timely pay, or cause to be paid, all premiums on all
insurance policies required under this Agreement from time to time. Borrower
shall, and shall cause the other Credit Parties to, promptly notify the
insurance carrier or agent therefor (with a copy of such notification being
provided simultaneously to Administrative Agent) if there is any occurrence
which, under the terms of any insurance policy then in effect with respect to
any of the Properties, requires such notification.
8.6 Payment of Obligations. The Borrower shall, and shall cause the
other Credit Parties to, pay all taxes, assessments, governmental charges and
other obligations when due, except such as may be contested in good faith by
appropriate proceedings, and for which adequate reserves have been provided in
accordance with sound accounting principles.
8.7 Compliance with Laws. The Borrower shall, and shall cause the other
Credit Parties to, comply in all material respects with all applicable laws,
rules, regulations, orders and directions of any governmental authority having
jurisdiction over Borrower, any of the other Credit Parties, or any of their
respective businesses or assets.
8.8 Adequate Books. The Borrower shall, and shall cause the other
Credit Parties to, maintain adequate books, accounts and records in order to
provide financial statements in accordance with GAAP and, if requested by any
Lender, permit employees or representatives of such Lender at any reasonable
time and upon reasonable notice (i) to inspect and audit the assets of the
Credit Parties or any of them, (ii) to examine or audit the inventory, books,
accounts and records of each of them and make copies and memoranda thereof, and
(iii) to consult with appropriate personnel of each of them regarding the
foregoing.
8.9 ERISA. The Borrower shall, and shall cause the other Credit Parties
to, comply in all material respects with all requirements of ERISA applicable
with respect to each Plan.
8.10 Maintenance of Status. General Partner shall at all times continue
to have its common stock listed and in good standing on the New York Stock
Exchange (NYSE), and Borrower shall take all steps to maintain General Partner's
status as a real estate investment trust in compliance with all applicable
provisions of the Code.
8.11 Use of Proceeds. The Borrower shall use the proceeds of the
Facility solely for the general business purposes of the Borrower, including,
without limitation, working capital needs, closing costs, and interim funding
for acquisitions and development of office and light industrial real properties.
8.12 Pre-Acquisition Environmental Investigations. The Borrower shall, and
shall cause each of the Credit Parties to, obtain, prior to the acquisition of
each parcel of real property that it intends to acquire, an environmental report
of the scope described in Exhibit G attached hereto and made a part hereof.
8.13 New Subsidiaries. The Borrower shall, from time to time, promptly
cause each Person that becomes a wholly-owned Subsidiary of General Partner
after the Agreement Execution Date to duly execute and deliver to the
Administrative Agent a Guaranty of the Obligations. Notwithstanding anything to
the contrary contained herein, such duly executed Guaranty, together with the
related documentation required to be furnished pursuant to Section 5.2(c)
hereof, shall be delivered to the Administrative Agent no later than 45 days
after the end of the fiscal quarter during which such Person became a Subsidiary
of General Partner.
8.14 Distributions. Neither the General Partner nor the Borrower shall make
any distributions which would cause a violation of any of the following
covenants:
(a) The General Partner shall not pay any distributions to its
shareholders and the Borrower shall not pay any distribution to the partners of
the Borrower if such distribution would cause a violation of Section 7.8 hereof;
provided, however, the Borrower may make distributions to the General Partner
which correspond in amount and timing to distributions which the General Partner
is permitted by Section 7.8 to make to its shareholders and other distributions
to the General Partner for "REIT Expenses" as defined in Borrower's Agreement of
Limited Partnership delivered pursuant to Section 5.1(b) hereof;
If an Event of Default specified in Section 10.1 or Section 10.3, or an
Event of Default relating to a breach of the financial covenants contained in
Article VII above, shall have occurred and be continuing, the Borrower and the
General Partner shall make no distributions other than the minimum distributions
required under the Code to maintain the tax status of the General Partner as a
REIT, as evidenced by a certification of the principal financial or accounting
officer of the General Partner containing calculations in reasonable detail
satisfactory in form and substance to Administrative Agent; and
Notwithstanding the foregoing, at any time when an Event of Default shall
have occurred and the maturity of the Obligations has been accelerated, the
Borrower and General Partner shall not make any distributions whatsoever,
directly or indirectly.
ARTICLE IX
NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as the Commitment shall
remain in effect and until full and final payment of all Obligations incurred
under the Loan Documents, without the prior written consent of the Majority
Lenders, it shall not, and shall cause the other Credit Parties not to:
9.1 Change in Business. Except as otherwise permitted under Section
8.3, engage in any business activities or operations other than acquisition,
development, ownership, management, operation and leasing of office and light
industrial real property and ancillary businesses specifically related thereto.
9.2 Intentionally Deleted.
9.3 Change of Borrower Ownership. Allow (i) the General Partner to own less
than
fifty-one percent (51%) of the partnership interests in Borrower, (ii) the
Borrower to be controlled by a Person other than the General Partner, or (iii)
any pledge of, other encumbrance on, or conversion to limited partnership
interests of, any of the general partnership interests in the Borrower.
9.4 Use of Proceeds. Apply or permit to be applied any proceeds of any
Advance directly or indirectly, to the funding of any purchase of, or offer for,
any share of capital stock of any publicly held corporation constituting (alone
or together with other shares owned by Borrower or its Subsidiaries) a
controlling interest in such corporation, or as part of a series of transactions
to acquire such controlling interest, unless the board of directors of such
corporation has consented to such purchase or offer and the Lenders have
consented to such use of the proceeds of the Facility.
9.5 Transfers of Assets. Sell or otherwise dispose of (other than the
creation or continuance of Permitted Liens) any Properties or other assets or
any interest therein, if such Property or other assets, together with all other
assets which have been transferred or disposed of prior to such date, exceeds
twenty percent (20%) of the Gross Asset Value of Borrower.
9.6 Liens. Create, incur, or suffer to exist any Lien in, of or on any of
the Properties except:
(i) Liens for taxes, assessments or governmental
charges or levies on their Property if the same shall not at
the time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves shall
have been set aside on their books;
(ii) Liens which arise by operation of law, such as
carriers', warehousemen's, landlords', materialmen and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 30 days past due or which are being
contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its
books;
(iii) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age
pensions, or other social security or retirement benefits, or
similar legislation;
(iv) Utility easements, building restrictions, zoning
restrictions, easements and such other encumbrances or charges
against real property as are of a nature generally existing
with respect to properties of a similar character and which do
not in any material way affect the marketability of the same
or interfere with the use thereof in the business of the
Borrower or any of the other Credit Parties;
(v) Liens of any Subsidiary in favor of the Borrower;
(vi) Liens arising in connection with any
Indebtedness permitted hereunder to the extent such Liens will
not result in a violation of any of the provisions of this
Agreement; and
(vii)Liens described in Schedule 9.6 attached hereto.
Liens permitted pursuant to this Section 9.6 shall be deemed to be "Permitted
Liens".
9.7 Regulation U. Use any of the proceeds of the Advances to purchase or
carry any Margin Stock.
9.8 Mergers and Dispositions. Enter into any merger, consolidation,
pool, business combination, reorganization or liquidation, or transfer or
otherwise dispose of all or a substantial portion of its properties, except for:
such transactions that occur between wholly-owned Subsidiaries; transactions
where Borrower is the surviving entity and there is no change in business
conducted, and no Default or Event of Default under the Loan Documents results
from such transaction; or as otherwise approved in advance by the Lenders.
9.9 Negative Pledge. Agree with any third party not to create,
assume or suffer to exist any Lien securing a charge or obligation on any of its
real or personal property, whether now owned or hereafter acquired.
9.10 Consolidated Secured Recourse Debt. At any time, allow
Consolidated Secured Debt that is recourse to the Borrower or any other entity
in the Consolidated Operating Partnership to exceed ten percent (10%) of Gross
Asset Value.
ARTICLE X
DEFAULTS
The occurrence of any one or more of the following events shall
constitute an Event of Default:
10.1 Nonpayment of Principal. The Borrower fails to pay any principal
portion of the Obligations when due, whether on the Maturity Date or otherwise.
10.2 Certain Covenants. The Borrower, General Partner and/or Consolidated
Operating Partnership, as the case may be, is not in compliance with any one or
more of the provisions of Article VII or Article IX (excluding Section 9.1)
hereof.
10.3 Nonpayment of Interest and Other Obligations. The Borrower fails
to pay any interest or other portion of the Obligations, other than payments of
principal, and such failure continues for a period of ten (10) days after the
date such payment is due.
10.4 Cross Default. Any monetary default occurs (after giving effect to
any applicable cure period) under any Indebtedness (which includes liability
under guaranties) of any entity in the Consolidated Operating Group, singly or
in the aggregate, in excess of Five Million Dollars ($5,000,000), other than
Indebtedness arising from the purchase of personal property or the provision of
services, the amount of which is being contested by Borrower in good faith by
appropriate proceedings.
10.5 Loan Documents. Any Loan Document is not in full force and effect
in accordance with its terms, or a default has occurred and is continuing
thereunder after giving effect to any cure or grace period in any such document.
10.6 Representation or Warranty. At any time or times hereafter any
representation or
warranty set forth in Article VI or Article VII of this Agreement or in any
other Loan Document or in any statement, report or certificate now or hereafter
made by any entity in the Consolidated Operating Group to the Lenders or the
Administrative Agent is not true and correct in any material respect.
10.7 Covenants, Agreements and Other Conditions. The Borrower fails to
perform or observe any of the covenants, agreements and conditions contained in
this Agreement or any of the other Loan Documents not specifically referred to
in any other Section of this Article X, in accordance with the terms hereof or
thereof, and such Default continues unremedied for a period of thirty (30) days
after written notice from Administrative Agent, provided, however, that if such
Default is susceptible of cure but cannot by the use of reasonable efforts be
cured within such thirty (30) day period, such Default shall not constitute an
Event of Default under this Section 10.7 so long as (i) the Borrower has
commenced a cure within such thirty-day period in a manner satisfactory to the
Administrative Agent and (ii) thereafter, Borrower is proceeding to cure such
default continuously and diligently and in a manner reasonably satisfactory to
Administrative Agent and (iii) such default is cured to Administrative Agent's
satisfaction not later than sixty (60) days after the expiration of such thirty
(30) day period.
10.8 No Longer General Partner. The General Partner shall no longer be the
sole general partner of Borrower.
10.9 Material Adverse Financial Change. Any of the Borrower or the
Guarantors have suffered a Material Adverse Financial Change or is Insolvent.
10.10 Bankruptcy.
(a) Any of the Borrower or the Guarantors (i) have an order
for relief entered with respect to it under the Federal bankruptcy laws as now
or hereafter in effect, (ii) make an assignment for the benefit of creditors,
(iii) apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for it or
any substantial portion of its Property, (iv) institute any proceeding seeking
an order for relief under the Federal bankruptcy laws as now or hereafter in
effect or seeking to adjudicate it as a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed against
it, (v) take any corporate action to authorize or effect any of the foregoing
actions set forth in this Section 10.10(a), (vi) fail to contest in good faith
any appointment or proceeding described in Section 10.10(b) or (vii) not pay, or
admit in writing its inability to pay, its debts generally as they become due.
(b) A receiver, trustee, examiner, liquidator or similar
official shall be appointed for any of the Borrower or any Guarantor or any
substantial portion of any of their Properties or other material assets, or a
proceeding described in Section 10.10(a)(iv) shall be instituted against any of
the Borrower or any such Guarantor and such appointment continues undischarged
or such proceeding continues undismissed or unstayed for a period of sixty (60)
consecutive days.
10.11 Legal Proceedings. Any of the Borrower or the Guarantors is
enjoined, restrained or in any way impaired by any court order or judgment or if
a notice of lien, levy, or assessment is filed of record with respect to all or
any part of their Properties or other material assets by any governmental
department, office, agency or authority, which, alone or in the aggregate, could
have
a Materially Adverse Effect, or any proceeding is filed or commenced seeking to
enjoin, restrain or otherwise impair any of said Persons from conducting all or
a substantial part of their respective business affairs, and such proceeding is
not vacated, stayed, dismissed, set aside, removed or otherwise or remedied
within ninety (90) days after the occurrence thereof.
10.12 ERISA. Any of the Borrower or the Guarantors is deemed to hold
"plan assets" within the meaning of ERISA or any regulations promulgated
thereunder of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code).
10.13 Failure to Satisfy Judgments. Any of the Borrower or the
Guarantors shall fail within sixty (60) days to pay, bond or otherwise discharge
any judgments or orders for the payment of money in an amount which, when added
to all other judgments or orders outstanding against the Borrower or any
Guarantor would exceed Five Million Dollars ($5,000,000) in the aggregate, which
have not been stayed pending appeal, unless the liability is insured against and
the insurer has not challenged coverage of such liability.
10.14 Environmental Remediation. Failure to remediate within the time
period required by law or governmental order, (or within a reasonable time in
light of the nature of the problem if no specific time period is so
established), environmental problems in violation of applicable law related to
any Property where the estimated cost of remediation is in the aggregate in
excess of Five Million and No/100 Dollars ($5,000,000), in each case after all
administrative hearings and appeals have been concluded.
ARTICLE XI
ACCELERATION, WAIVERS AMENDMENTS AND REMEDIES
11.1 Acceleration. If any Event of Default described in Section 10.10
hereof occurs, the obligation of the Lenders to make Advances hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable. If any other Event of Default described in Article X hereof shall have
occurred and be continuing, the Administrative Agent may (and upon demand of the
Majority Lenders, shall) notify Borrower that such obligation to make Advances
has terminated and the Obligations shall immediately become due and payable.
11.2 Preservation of Rights; Amendments. No delay or omission of the
Lenders in exercising any right under the Loan Documents shall impair such right
or be construed to be a waiver of any Default or Event of Default or an
acquiescence therein, and the making of an Advance notwithstanding the existence
of a Default or Event of Default or the inability of the Borrower to satisfy any
conditions precedent to such Advance shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment, release or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Administrative Agent and the number of Lenders required hereunder
and then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative, and may
be exercised concurrently or successively, and all shall be available to the
Lenders until the Obligations have been paid in full.
ARTICLE XII
THE ADMINISTRATIVE AGENT
12.1 Appointment. BOFA is hereby irrevocably appointed Administrative
Agent hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Administrative Agent to act as the agent of such
Lender. The Administrative Agent agrees to act as such upon the express
conditions contained in this Article XII. The Administrative Agent shall not
have any duties or responsibilities except those expressly set forth herein and
shall not have a fiduciary relationship in respect of any Lender by reason of
this Agreement.
12.2 Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties, obligations or liabilities to the Lenders, or any obligation to
the Lenders to take any action thereunder except any action specifically
provided by the Loan Documents to be taken by the Administrative Agent. Only
Administrative Agent may perform the duties reserved to it under the Loan
Documents and no Lender shall act or purport to act on behalf of the other
Lenders or Administrative Agent on any such matters. Without limiting the
generality of the foregoing:
(a) Administrative Agent shall have the exclusive right to
collect from Borrower and any Guarantor, or third parties, on account of the
Facility, including, principal, interest, fees, protective advances and
prepayment premiums (if any), whether such sums are received directly from
Borrower, Guarantor, or any other Persons, or are obtained by right of offset by
Administrative Agent of any kind, or by enforcement of the Loan Documents.
Administrative Agent will receive and hold all collections with respect to the
Loan for the benefit of the Lenders in accordance with their Percentages or as
otherwise provided herein.
(b) If any Lender shall receive any payments or property in
connection with the Facility (whether or not voluntary), from any Person other
than Administrative Agent, such Lender shall transfer to Administrative Agent
all such payments or property within one Business Day of receipt.
(c) No Lender shall independently initiate any judicial action
or other proceeding against Borrower or any Guarantor with respect to the
Facility.
12.3 General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrower or the
Lenders for any action taken or omitted to be taken by it or them hereunder or
under any other Loan Document or in connection herewith or therewith, except for
its or their own gross negligence or willful misconduct.
12.4 No Responsibility for Loans, Recitals, etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(i) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of any condition specified in Article V, except receipt of items
required to be delivered to the Administrative Agent; or (iv) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith.
12.5 Action on Instructions of Lenders. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Majority Lenders and such instructions and any action
taken or failure to act pursuant thereto shall be binding on all of the Lenders
and on all holders of Notes. The Administrative Agent shall be fully justified
in failing or refusing to take any action hereunder and under any other Loan
Document unless it shall first receive such advise or concurrence, if it so
requests, of the Majority Lenders and shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action.
12.6 Employment of Administrative Agents and Counsel. The
Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other Loan Document by or through employees, agents and
attorneys-in-fact and shall not be answerable to the Lenders, except as to money
or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to engage and rely
upon advice of legal counsel (including the Borrower's counsel), independent
accountants and other professionals and experts selected by the Administrative
Agent concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
12.7 Reliance on Documents . The Administrative Agent shall be entitled
to rely upon any Note, writing, notice, consent, certificate, facsimile,
affidavit, letter, telegram, statement, paper, document or other communication
believed by it to be genuine and correct and to have been signed, sent or
otherwise communicated by the proper person or persons.
12.8 Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify upon demand the Administrative Agent
ratably in accordance with their respective Percentages (i) for any amounts not
reimbursed by the Borrower for which the Administrative Agent is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for any other
expenses (including attorneys' fees) incurred by the Administrative Agent on
behalf of the Lenders, in connection with the preparation, execution, delivery,
administration, modification and enforcement of the Loan Documents, if not paid
by Borrower, and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of the
Loan Documents or any other document delivered in connection therewith or the
transactions contemplated thereby, or the enforcement of any of the terms
thereof or of any such other documents, provided that no Lender shall be liable
for any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Administrative Agent. Each Lender shall indemnify the
Administrative Agent and the other Lenders with respect to claims, liabilities,
damages, costs, losses and expenses (including, without limitation, attorneys'
fees) arising from or relating to the failure of such indemnifying Lender to
satisfy its obligations under this Agreement and the other Loan Documents.
12.9 Rights as a Lender. With respect to the Commitment, Advances made
by it, the Note issued to it and otherwise, the Administrative Agent shall have
the same rights and powers hereunder and under any other Loan Document as any
Lender and may exercise the same as though it were not the Administrative Agent,
and the term "Lender" or "Lenders" shall, unless the context otherwise
indicates, include the Administrative Agent in its capacity as a Lender. The
Administrative Agent, in its capacity as a Lender, may accept deposits from,
lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which the Borrower or such
Subsidiary is not restricted hereby from engaging with any other Person. The
Lenders acknowledge that Administrative Agent and its Affiliates now or in the
future may have banking or other financial relationships, including being an
agent on other loans, with Borrower and its Affiliates, as though BOFA were not
Administrative Agent hereunder and without notice to or consent of the Lenders.
Each Lender hereby expressly waives any objection to such actual or potential
conflict of interest. The Lenders acknowledge that in the course of such
activities, BOFA or its Affiliates may receive information regarding Borrower or
its Affiliates and acknowledge that Administrative Agent shall be under no
obligation to provide such information to them, whether or not confidential.
12.10 Commitment as a Lender. BOFA agrees to maintain at all times a
Commitment of at least 50 percent of the Aggregate Commitment so long as BOFA
remains as Administrative Agent; provided, that the foregoing agreement of BOFA
shall not apply at any time following a Monetary Default or Event of Default
(irrespective of whether such Monetary Default or Event of Default subsequently
is waived).
12.11 Lender Credit Decision. Each Lender acknowledges that neither the
Administrative Agent nor any of its agents has made any representation or
warranty to such Lender and that no action or statement hereafter made or taken
by the Administrative Agent or any of its agents shall be deemed to be
representation or warranty by the Administrative Agent to such Lenders. Each
Lender further acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Lender and based on the financial
statements prepared by the Borrower and such other documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement and the other Loan Documents. Each Lender also acknowledges
that it will, independently and without reliance upon the Administrative Agent
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 analysis and decisions
in taking or not taking action under this Agreement and the other Loan
Documents.
12.12 Successor Administrative Agent. Each Lender agrees that BOFA
shall serve as Administrative Agent at all times during the term of this
Facility, except that BOFA may resign as Administrative Agent at any time, in
its sole discretion, upon thirty (30) days' prior written notice to the Lenders
and Borrower. Upon any such resignation, the Majority Lenders shall have the
right to appoint, on behalf of the Borrower and the Lenders, a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Majority Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent's giving notice
of resignation, then the retiring Administrative Agent may appoint, on behalf of
the Borrower and the Lenders, a successor Administrative Agent. Such successor
Administrative Agent shall be a commercial bank having capital and retained
earnings of at least $100,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent (including the right to receive any fees for performing such duties which
accrue thereafter), and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder and under the other Loan Documents.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article XII shall continue in
effect for its benefit and that of the other Lenders in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative
Agent hereunder and under the other Loan Documents.
12.13 Notice of Defaults. If a Lender becomes aware of a Default or
Event of Default, such Lender shall notify the Administrative Agent of such
fact. Upon receipt of such notice that a Default or Event of Default has
occurred, the Administrative Agent shall notify each of the Lenders of such
fact. Except for defaults in the payment of principal, interest and fees payable
to Administrative Agent for the account of the Lenders and such other
Obligations for which Administrative Agent is expressly responsible for
determining Borrower's compliance, Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
unless Administrative Agent shall have received written notice from a Lender or
Borrower referring to the Loan, describing such Default or Event of Default and
stating that such notice is a "notice of default". Administrative Agent will
notify the Lenders of its receipt of any such notice. Administrative Agent shall
take action with respect to such Default or Event of Default in accordance with
the provisions of this Agreement and the Loan Documents.
12.14 Requests for Approval. If the Administrative Agent requests in
writing the consent or approval of a Lender, whether or not such consent or
approval is required hereunder (and no such requirement shall be inferred from
any such request), such Lender shall respond and either approve or disapprove
definitively in writing to the Administrative Agent within seven (7) Business
Days (or sooner if such notice specifies a shorter period based on
Administrative Agent's good faith determination that circumstances warrant an
earlier response) after such written request from the Administrative Agent. If
any Lender does not so respond, that Lender shall be deemed to have approved the
request. Upon request, the Administrative Agent shall notify the Lenders which
Lenders, if any, failed to respond to a request for approval.
12.15 Copies of Documents. Administrative Agent shall promptly deliver
to each of the Lenders copies of all notices of default and other formal notices
sent to or received by the Administrative Agent pursuant to Section 15.1 of this
Agreement. Within fifteen (15) Business Days after a request by a Lender to the
Administrative Agent for other documents furnished to the Administrative Agent
by the Borrower, the Administrative Agent shall provide copies of such documents
to such Lender except where this Agreement obligates Administrative Agent to
provide copies in a shorter period of time.
12.16 Defaulting Lenders. At such time as a Lender becomes a Defaulting
Lender, such Defaulting Lender's right to vote on matters which are subject to
the consent or approval of the Majority Lenders, such Defaulting Lender or all
Lenders shall be immediately suspended until such time as the Lender is no
longer a Defaulting Lender. If a Defaulting Lender has failed to fund its
Percentage of any Advance and until such time as such Defaulting Lender
subsequently funds its Percentage of such Advance, all Obligations owing to such
Defaulting Lender hereunder shall be subordinated in right of payment, as
provided in the following sentence, to the prior payment in full of all
principal of, interest on and fees relating to the Loans funded by the other
Lenders in connection with any such Advance in which the Defaulting Lender has
not funded its Percentage (such principal, interest and fees being referred to
as "Senior Loans" for the purposes of this section). All amounts paid by the
Borrower and otherwise due to be applied to the Obligations owing to such
Defaulting Lender pursuant to the terms hereof shall be distributed by the
Administrative Agent to the other Lenders in accordance with their respective
Percentages (recalculated for the purposes hereof to exclude the Defaulting
Lender) until all Senior Loans have been paid in full. At that point, the
"Defaulting Lender" shall no longer be deemed a Defaulting Lender. After the
Senior Loans have been paid in full equitable adjustments will be made in
connection with future payments by the Borrower to the extent a portion of the
Senior Loans had been repaid with amounts that otherwise would have been
distributed to a Defaulting Lender but for the operation of this Section 12.16.
This provision governs only the relationship among the
Administrative Agent, each Defaulting Lender and the other Lenders; nothing
hereunder shall limit the obligation of the Borrower to repay all Loans in
accordance with the terms of this Agreement. The provisions of this Section
12.16 shall apply and be effective regardless of whether a Default occurs and is
continuing, and notwithstanding (i) any other provision of this Agreement to the
contrary, (ii) any instruction of the Borrower as to its desired application of
payments or (iii) the suspension of such Defaulting Lender's right to vote on
matters as provided above.
12.17 Withholding Tax. All taxes due and payable on any payments to be
made to a Lender under this Agreement shall be such Lender's sole
responsibility, except to the extent such taxes are actually reimbursed by
Borrower under the Loan Documents. All payments to be made to each Lender under
this Agreement shall be made after deduction for any taxes, charges, levies or
withholdings which are imposed by the country of incorporation of Borrower, the
United States of America or any other applicable taxing authority. Each Lender
agrees to provide to Administrative Agent completed and signed copies of any
forms that may be required by the United States Internal Revenue Service (and
any applicable state authority) in order to certify such Lender's exemption from
or reduction of United States (or applicable state) withholding taxes with
respect to payments to be made to such Lender under this Agreement or the Loan
Documents. Each Lender agrees to promptly notify Administrative Agent of any
change which would modify or render invalid any claimed exemption or reduction,
or of any sale, assignment, participation, or other transfer by such Lender of
all or part of its interest in the Facility. If any governmental authority of
the United States or other jurisdiction asserts a claim that Administrative
Agent did not properly withhold tax from amounts paid to or for the account of
any Lender, such Lender shall indemnify Administrative Agent fully for all
amounts paid by Administrative Agent as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the amount
payable to Administrative Agent under this section, together with all costs and
expenses (including legal expenses). The obligation of the Lenders under this
subsection shall survive the payment of all Obligations and the resignation or
replacement of Administrative Agent.
12.18 Borrower's Default; Enforcement. Upon the occurrence of an Event
of Default under any Loan Document, the Majority Lenders shall have the right,
upon written notice to Administrative Agent, to require that Administrative
Agent exercise the rights of the Lenders as directed by the Majority Lenders;
provided, however, that the Lenders shall indemnify, exonerate and hold
Administrative Agent harmless from and against any and all claims, losses,
liabilities, damages and costs (including reasonable legal fees) incurred by
Administrative Agent as a result of any such exercise of rights at the direction
of the Lenders.
12.19 Workout. If Borrower is in material default under the Loan
Documents and has not cured the default within any applicable cure period,
Administrative Agent may declare by written notice to the Lenders that the Loan
is "in workout" (the "Notice of Workout"). The Lenders acknowledge that workouts
of defaulted loans usually are resolved by either a borrower cure of the
default; or a restructure of or other modification to the loan; or by exercising
remedies; and that it is in the interest of the Lenders to attain a resolution
within a reasonable period of time. Therefor the Lenders agree that if, after 90
days from the date of Administrative Agent's Notice of Workout, there has been
neither a cure of the default(s), nor a restructure nor other modification
executed, nor exercise of the Lenders' remedies hereunder, then Administrative
Agent on behalf of the Lenders shall xxx Borrower and any Guarantors for
collection of amounts owing to the Lenders, subject to and in accordance with
advice of Administrative Agent's counsel. Notwithstanding any action by
Administrative Agent under this Section 12.19, Administrative Agent shall follow
the direction of the Majority Lenders under Section 12.18 above at any time.
Nevertheless, unless and until the Majority Lenders shall direct Administrative
Agent to the contrary, Administrative Agent shall have
the right but not the obligation to take such action as it may deem appropriate
to preserve the rights of the Lenders to recover any amounts owing under the
Loan Documents, without the consent of the Majority Lenders.
12.20 Bankruptcy of Borrower. In the event of a bankruptcy by Borrower,
the Lenders shall act through Administrative Agent to petition the court, make
any motion for relief from the automatic stay, participate in any appropriate
creditors' committee, vote on a plan of reorganization or pursue other remedies
or actions in accordance with the approval of the Majority Lenders.
12.21 Relationship of Parties. This Agreement is not intended to
establish a partnership or joint venture between Administrative Agent and the
Lenders. The provisions of the Loan Documents regarding the relationships among
Administrative Agent and the Lenders and this Article XII is intended solely to
facilitate co-lending relationships among the Lenders for the Facility. No
security or investment contract under any federal or state law is intended to be
created among the Lenders or between Administrative Agent and the Lenders. The
execution of this Agreement, the performance of the terms thereof, and the
Lenders' purchase of and ownership interest in the Facility and the Loan
Documents shall not constitute any Lender as owner, purchaser or seller of any
security (as that term is defined in the Securities Act of 1933 or the
Securities Exchange Act of 1934) issued, owned, purchased or sole by BOFA or any
of its Subsidiaries or Affiliates, either as principal or as agent for Borrower.
Each Lender is purchasing and acquiring legal and equitable ownership of its
Percentage and is not making a loan to BOFA, and no debtor-creditor relationship
exists between them as a result of this Agreement.
12.22 Counsel. The Lenders acknowledge that Administrative Agent's
counsel has represented and shall represent only Administrative Agent, in its
capacity as Administrative Agent and Lender, in connection with the Loan
Documents and this Agreement. Each other Lender shall retain independent legal
counsel regarding all such matters, documents and agreements. After an Event of
Default, the Lenders shall enter into a joint privilege agreement regarding the
exchange of information that is or may be subject to attorney-client privilege
or related privileges. Administrative Agent's counsel shall prepare such joint
privilege agreement, subject to the approval of the Majority Lenders which
approval shall not be unreasonably withheld by any Lender.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 Successors and Assigns.
The terms and provisions of the Loan Documents shall be
binding upon and inure to the benefit of Borrower and the Lenders and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights or obligations under the Loan Documents without the
consent of all the Lenders and any assignment by any Lender must be made in
compliance with Section 13.3. The Administrative Agent may treat the payee of
any Note as the owner thereof for all purposes hereof unless and until such
payee complies with Section 13.3 in the case of an assignment thereof or, in the
case of any other transfer, a written notice of the transfer is filed with the
Administrative Agent. Any assignee or transferee of a Note agrees by acceptance
thereof to be bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person who at the time of making such
request or giving such authority or consent is the holder of any Note, shall be
conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
13.2 Participations.
(a) Permitted Participants: Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("Participants") participating interests in any Advance owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or
any other interest of such Lender under the Loan Documents. In the
event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, such
Lender shall remain the holder of any such Note for all purposes under
the Loan Documents, all amounts payable by Borrower under this
Agreement shall be determined as if such Lender had not sold such
participating interests, and Borrower and 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 under
the Loan Documents.
(b) Voting Rights. Each Lender shall retain the sole right to
vote its Percentage of the Aggregate Commitment, without the consent of
any Participant, for the approval or disapproval of any amendment,
modification or waiver of any provision of the Loan Documents, provided
that such Lender may grant such Participant the right to approve any
amendment, modification or waiver which forgives principal, interest or
fees or reduces the interest rate or fees payable hereunder, postpones
any date fixed for any regularly-scheduled payment of principal of or
interest on the Obligations, releases Collateral beyond any releases
expressly provided for herein or extends the Maturity Date.
13.3 Assignments.
(a) Permitted Assignments. Any Lender may, with the prior
written consent of Administrative Agent and Borrower (which consents
shall not be unreasonably withheld or delayed), in accordance with
applicable law, at any time assign to one or more banks or other
entities (collectively, "Purchasers") all or any part of its rights and
obligations under the Loan Documents, except that no consent of
Borrower shall be required if any Monetary Default, other material
Default or Event of Default has occurred and is continuing and that no
consent of Administrative Agent or Borrower shall ever be required for
(i) any assignment to a Person directly or indirectly controlling,
controlled by or under direct or indirect common control with the
assigning Lender or (ii) the pledge or assignment by a Lender of such
Lender's Note and other rights under the Loan Documents to any Federal
Reserve Bank in accordance with applicable law. Such assignments and
assumptions shall be substantially in the form of Exhibit H hereto. The
Borrower shall execute any and all documents which are customarily
required by such Lender (including, without limitation, a replacement
promissory note or notes in the forms provided hereunder) in connection
with any such assignment, but Borrower shall not be obligated to pay
any fees and expenses incurred by any Lender in connection with any
assignment pursuant to this Section. Any Lender selling all or any part
of its rights and obligation hereunder in a transaction requiring the
consent of the Administrative Agent shall pay to the Administrative
Agent a fee of $3,500.00 per assignee to reimburse Administrative Agent
for its involvement in such assignment.
(b) Effective Date of Assignment. Upon delivery to the
Administrative Agent of a
notice of assignment executed by the assigning Lender and the
Purchaser, such assignment shall become effective on the effective date
specified in such notice of assignment. The notice of assignment shall
contain an undertaking by the Purchaser to be bound as a Lender by this
Agreement and the other Loan Documents with the same force and effect
as if it were an original signatory hereto, and a representation by the
Purchaser to the effect that none of the consideration used to make the
purchase of the Commitment and the Loan under the applicable assignment
agreement are "plan assets" as defined under ERISA and that the rights
and interests of the Purchaser in and under the Loan Documents will not
be "plan assets" under ERISA, all in form and content satisfactory to
the Administrative Agent. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to
this Agreement and any other Loan Document executed by the Lenders and
shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto,
and no further consent or action by Borrower, the Lenders or the
Administrative Agent shall be required to release the transferor Lender
with respect to the percentage of the Commitment and Advances assigned
to such Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 13.3.2, the transferor Lender, the
Administrative Agent and Borrower shall make appropriate arrangements
so that replacement Notes are issued to such transferor Lender and new
Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their
respective Commitments, as adjusted pursuant to such assignment.
13.4 Dissemination of Information. Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of Borrower and the Guarantors. Each Transferee
shall agree to keep confidential any such information which is not publicly
available.
13.5 Tax Treatment. If any interest in any Loan Document is transferred
to any Transferee which is organized under the laws of any jurisdiction other
than the United States or any State thereof, the transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to comply
with all applicable provisions of the Code with respect to withholding and other
tax matters.
ARTICLE XIV
GENERAL PROVISIONS
14.1 Survival of Representations. All representations and warranties
contained in this Agreement shall survive delivery of the Notes and the making
of the Advances herein contemplated.
14.2 Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
14.3 Taxes. Any recording and other taxes (excluding franchise, income
or similar taxes) or other similar assessments or charges payable or ruled
payable by any governmental authority incurred in connection with the
consummation of the transactions contemplated by this Agreement shall be paid by
the Borrower, together with interest and penalties, if any.
14.4 Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
14.5 No Third Party Beneficiaries. This Agreement shall not be construed so
as to confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
14.6 Expenses: Indemnification. Subject to the provisions of this
Agreement, Borrower will pay (a) all out-of-pocket costs and expenses incurred
by the Administrative Agent (including the reasonable fees, out-of-pocket
expenses and other reasonable expenses of counsel, which counsel may be
employees of Administrative Agent) in connection with the preparation, execution
and delivery of this Agreement, the Notes, the Loan Documents and any other
agreements or documents referred to herein or therein and any amendments
thereto, (b) all out-of-pocket costs and expenses incurred by the Administrative
Agent and the Lenders (including the reasonable fees, out-of-pocket expenses and
other reasonable expenses of counsel to the Administrative Agent and the
Lenders, which counsel may be employees of Administrative Agent or the Lenders)
in connection with the enforcement and protection of the rights of the Lenders
under this Agreement, the Notes, the Loan Documents or any other agreement or
document referred to herein or therein, and (c) all reasonable and customary
costs and expenses of periodic audits by the Administrative Agent's personnel of
the Borrower's books and records provided that prior to an Event of Default,
Borrower shall not be required to pay for more than one such audit during any
year. The Borrower further agrees to indemnify the Lenders, their directors,
officers and employees against all losses, claims, damages, penalties,
judgments, liabilities and reasonable expenses (including, without imitation,
all expenses of litigation or preparation therefor, whether or not any Lender is
a party thereto) which any of them may pay or incur arising out of or relating
to this Agreement, the other Loan Documents, the transactions contemplated
hereby or the direct or indirect application or proposed application of the
proceeds of any Advance hereunder, except that the foregoing indemnity shall not
apply to a Lender to the extent that any losses, claims, etc. are the result of
such Lender's gross negligence or willful misconduct. The obligations of the
Borrower under this Section shall survive the termination of this Agreement.
14.7 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
14.8 Nonliability of the Lenders. The relationship between the Borrower
and the Lenders shall be solely that of borrower and lender. Neither the
Administrative Agent nor the Lenders shall have any fiduciary responsibilities
to the Borrower. Neither the Administrative Agent nor the Lenders undertake
responsibility to the Borrower to review or inform the Borrower of any matter in
connection with any phase of the Borrower's business or operations.
14.9 Choice of Law. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
14.10 Consent to Jurisdiction. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE LENDERS TO BRING PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
THE BORROWER AGAINST THE LENDERS OR ANY AFFILIATE OF THE LENDERS INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO,
ILLINOIS.
14.11 Waiver of Jury Trial. EACH OF THE BORROWER, ADMINISTRATIVE AGENT,
DOCUMENTATION AGENT AND LENDERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN
ANY WAY IN CONNECTION WITH THIS AGREEMENT, THE NOTES, OR ANY OF THE OTHER LOAN
DOCUMENTS, THE LOAN, OR ANY OTHER STATEMENTS OR ACTIONS OF ANY PARTY HERETO.
EACH SUCH ENTITY ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF
THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL
SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS DISCUSSED THIS WAIVER WITH SUCH
LEGAL COUNSEL. BORROWER FURTHER ACKNOWLEDGES THAT (i) IT HAS READ AND
UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER, (ii) THIS WAIVER HAS
BEEN REVIEWED BY BORROWER AND BORROWER'S COUNSEL AND IS A MATERIAL INDUCEMENT
FOR ADMINISTRATIVE AGENT AND LENDERS TO MAKE THE LOAN, ENTER INTO THIS AGREEMENT
AND EACH OF THE OTHER LOAN DOCUMENTS, AND (iii) THIS WAIVER SHALL BE EFFECTIVE
AS TO EACH OF SUCH OTHER LOAN DOCUMENTS AS IF FULLY INCORPORATED THEREIN.
--------------------------
INITIALS OF BORROWER
14.12 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights or obligations under the Loan
Documents. Any assignee or transferee of the Notes agrees by acceptance thereof
to be bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the holder of the Notes, shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Notes or of
any note or notes issued in exchange therefor.
14.13 Entire Agreement; Modification of Agreement. The Loan Documents,
together with the letter from Borrower to Administrative Agent and Documentation
Agent regarding the underwriting fee, embody the entire agreement among the
Borrower, the Administrative Agent, and Lenders and supersede all prior
conversations, agreements, understandings, commitments and term sheets among any
or all of such parties with respect to the subject matter hereof. Any provisions
of
this Agreement may be amended or waived, or any liability thereunder released,
if, but only if, such amendment or waiver is in writing and is signed by the
Borrower, and Administrative Agent if the rights or duties of Administrative
Agent are affected thereby, and
(a) each of the Lenders, if such amendment or waiver
(i) reduces or forgives any payment of principal
or interest on the Obligations or any fees payable by Borrower
to such Lender hereunder; or
(ii) postpones the date fixed for any payment of
principal of or interest on the Obligations or any fees
payable by Borrower to such Lender hereunder; or
(iii) changes the amount of such Lender's Commitment
(other than pursuant to an assignment permitted under Section
13.3) or the unpaid principal amount of such Lender's Note; or
(iv) extends the Maturity Date;
(v) changes the definition of Majority Lenders
or modifies any requirement for consent by each of the Lenders
under this Section 14.13(a); or
(vi) release any Guarantor from the obligations
of any Guaranty.
(b) the Administrative Agent, as to all other matters.
14.14 Dealings with the Borrower. The Lenders and their affiliates may
accept deposits from, extend credit to and generally engage in any kind of
banking, trust or other business with any of the Borrower or the Guarantors or
any of their Affiliates regardless of the capacity of the Lenders hereunder.
14.15 Set-Off.
(a) If an Event of Default shall have occurred, each Lender
shall have the right, at any time and from time to time without notice to the
Borrower, any such notice being hereby expressly waived, to set-off and to
appropriate or apply any and all deposits of money or property or any other
indebtedness at any time held or owing by such Lender to or for the credit or
the account of the Borrower against and on account of all outstanding
Obligations and all Obligations which from time to time may become due hereunder
and all other obligations and liabilities of the Borrower under this Agreement,
irrespective of whether or not such Lender shall have made any demand hereunder
and whether or not said obligations and liabilities shall have matured.
(b) Each Lender agrees that if it shall, by exercising any
right of set-off or counterclaim or otherwise, receive payment of a proportion
of the aggregate amount of principal, interest or fees due with respect to any
Note held by it which is greater than the proportion received by any other
Lender in respect of the aggregate amount of principal, interest or fees due
with respect to any Note held by such other Lender, the Lender receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Lenders and such other adjustments shall be made as may be
required so that all such payments of principal, interest or Fees with respect
to the Notes held by the Lenders shall be shared by the Lenders pro rata
according to their respective Commitments.
14.16 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been executed by the
Borrower and each of the Lenders shown on the signature pages hereof.
14.17 Discretion. In exercising any discretion reserved herein to the
Administrative Agent, the Majority Lenders or the Lenders, the Administrative
Agent, the Majority Lenders or the Lenders, as the case may be, shall exercise
such discretion in a manner which is commercially reasonable by the standards of
the commercial lending industry with respect to credits comparable to the
Facility.
ARTICLE XV
NOTICES
15.1 Giving Notice. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below or at such other address as may be designated by
such party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any notice,
if transmitted by telex or facsimile, shall be deemed given when transmitted
(answerback confined in the case of telexes). Notice may be given as follows:
To the Borrower:
Great Lakes REIT, L.P.
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxx
Telecopy: (000) 000-0000
With a copy to:
Ungaretti and Xxxxxx
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxxx
Telecopy: (000) 000-0000
To each Lender:
As shown below the Lender's signature.
To the Administrative Agent:
Bank of America National Trust and Savings Association
Commercial Real Estate Services
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxx
Telecopy: (000) 000-0000
With a copy to:
Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
15.2 Change of Address. Each party may change the address for service of
notice upon it by a notice in writing to the other parties hereto.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
BORROWER: GREAT LAKES REIT, L.P.
By: Great Lakes REIT, Inc., its General Partner
By: /s/ Xxxxx Xxxxx
Title: Treasurer
LENDERS: BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ Xxxxxxxxx Xxxxx
Title: Vice President
Commitment: $17,500,000
Percentage of Aggregate Commitment: 50%
Address for Notices:
Commercial Real Estate Services
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxx X. Xxxxxx
Title: Assistant Vice President
Commitment: $17,500,000
Percentage of Aggregate Commitment: 50%
Address for Notices:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
ADMINISTRATIVE AGENT: BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ Xxxxxxxxx Xxxxx
Title: Vice President
Address for Notices:
Commercial Real Estate Services
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
DOCUMENTATION AGENT: THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxx X. Xxxxxx
Title: Assistant Vice President
Address for Notices:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SCHEDULE 1
List of Subsidiaries
GLR No. 1, Inc. an Illinois corporation
GLR No. 2, Inc., an Illinois corporation
GLR No. 3, a Maryland real estate investment trust
SCHEDULE 2
List of Unencumbered Assets
Name
Address
1. Arlington Ridge Service Center
000 Xxxxxx Xxxxx
Xxxxxxxxx Heights, IL
2. 0000 Xxxxxxxxx Xxxxx
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX
3. Highpoint Business Center
160, 165, 175, 180 and 000 Xxxxxx Xxxxx
Xxxx Xxxx, XX
(5 buildings)
4. 0000 Xxxx Xxxxx Xxxx
0000 Xxxx Xxxxx Xxxx
Xxxxxxxxxx, XX
5. Park Place VII
00000 Xxxx Xxxx Xxxx Xxxxx
Xxxxxxxxx, XX
6. 1011 Touhy Atrium
0000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX
7. One Hawthorn Place
000 Xxxx Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxx, XX
8. Court Office Center
00000 X. Xxxxxx
Xxxxxxx, XX
9. One Century Centre
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, XX
10. Metro Center V
000 Xxxxx Xxxxx Xxxxx
Xxxxxx, XX
11. Corporate Xxxxx
000 Xxxxxxx Xxx
Xxxxxxxxxx, XX
12. Metro Center IV
000 Xxxxx Xxxxx Xxxxx
Xxxxxx, XX
13. Arlington Business Center
3455, 3550 and 0000 Xxxx Xxxxx Xxxx
Xxxxxxxxx Xxxxxxx, XX
(3 buildings)
14. 000 Xxxxxxxxxx Xxxxx
000 Xxxxxxxxxx Xxxxxxx
Xxx Xxxxx, XX
15. 00000 Xxxxxxxxx Xxxxxx0
00000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX
EXHIBIT A
FORM OF GUARANTY
This Guaranty made as of , 199__, by
("Guarantor"), to and for the benefit of Bank of America National Trust and
Savings Association, individually as a lender ("BOFA") and as administrative
agent ("Administrative Agent") for itself and the other Lenders, as defined in
the Credit Agreement (as defined below), and The First National Bank of Chicago,
individually as a lender ("First Chicago") and as documentation agent
("Documentation Agent"), and their respective successors and assigns.
RECITALS
A. Great Lakes REIT, L.P. a Delaware limited partnership ("Borrower")
has requested that the Lenders make an unsecured revolving credit facility
available to Borrower in the aggregate principal amount of up to $35,000,000
("Facility"), and that Administrative Agent act as administrative agent and
Documentation Agent act as documentation agent with respect thereto.
B. The Lenders have agreed to make available the Facility to Borrower,
and Administrative Agent and Documentation Agent have agreed to act in said
agency capacities, pursuant to the terms and conditions set forth in an
Unsecured Revolving Credit Agreement dated January 6, 1998, between Borrower,
Administrative Agent, Documentation Agent and the Lenders ("Credit Agreement"),
and Guarantor desires that the Lenders continue to make Advances under the
Credit Agreement and that Administrative Agent and Documentation Agent continue
to act in said agency capacities. All capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to such terms in the
Credit Agreement.
C. Borrower has executed and delivered to the Lenders one or more
promissory notes each dated January 6, 1998 in the aggregate principal amount of
$35,000,000 as evidence of its indebtedness to the Lenders with respect to the
Facility (the promissory notes described above, together with any amendments or
allonges thereto, or restatements, replacements or renewals thereof, and/or new
promissory notes to new Lenders under the Credit Agreement, are collectively
referred to herein as the "Revolving Note").
D. Guarantor is deriving and will continue to derive substantial financial
benefit from the Facility evidenced by the Revolving Note, the Credit Agreement
and the other Loan Documents.
E. The execution and delivery of this Guaranty by Guarantor is required
pursuant to the express terms of the Credit Agreement as a condition to any
further Advances under the Facility.
AGREEMENTS
NOW, THEREFORE, in consideration of the matters described in the
foregoing Recitals, which Recitals are incorporated herein and made a part
hereof, and for other good and valuable consideration, Guarantor hereby agrees
as follows:
1. Guarantor absolutely, unconditionally, and irrevocably guarantees to
Administrative Agent and the Lenders:
(a) the full and prompt payment of the principal of and
interest on the Revolving
Note when due, whether at stated maturity, upon acceleration or
otherwise, and at all times thereafter, and the prompt payment of all
other sums which may now be or may hereafter become due and owing under
the Revolving Note, the Credit Agreement and/or the other Loan
Documents;
(b) the payment of all Enforcement Costs (as hereinafter
defined); and
(c) the full, complete, and punctual observance, performance,
and satisfaction of all of the obligations, duties, covenants, and
agreements of Borrower under the Credit Agreement and the Loan
Documents.
All amounts due, debts, liabilities, and payment obligations described in
subparagraphs (a) and (b) of this Paragraph 1 are referred to herein as the
"Facility Indebtedness. " All obligations described in subparagraph (c) of this
Paragraph 1 are referred to herein as the "Obligations."
2. In the event of any default by Borrower in making payment of the
Facility Indebtedness, or in performance of the Obligations, Guarantor agrees,
on demand by Administrative Agent, to pay all the Facility Indebtedness and to
perform all the Obligations as are or then or thereafter become due and owing or
are to be performed under the terms of the Revolving Note, the Credit Agreement
and/or the other Loan Documents, and to pay any reasonable expenses incurred by
Administrative Agent or the Lenders in protecting, preserving or defending its
interest in the Property or any collateral for the Facility, or otherwise in
connection with the Facility or under any of the Loan Documents, including,
without limitation, all reasonable attorneys' fees and costs. Administrative
Agent shall have the right, at its option, either before, during or after
pursuing any other right or remedy against Borrower or Guarantor, to perform any
and all of the Obligations by or through any agent, contractor or subcontractor,
or any of their agents, of its selection, all as Administrative Agent in its
sole discretion deems proper, and Guarantor shall indemnify and hold
Administrative Agent and the Lenders free and harmless from and against any and
all loss, damage, cost, expense, injury, or liability Administrative Agent or
the Lenders may suffer or incur in connection with the exercise of its rights
under this Guaranty or the performance of the Obligations, except to the extent
the same arises as a result of the gross negligence or willful misconduct of
Administrative Agent.
All of the remedies set forth herein and/or provided by any of the Loan
Documents or law or equity shall be equally available to Administrative Agent
for the benefit of itself and the Lenders, and the choice by Administrative
Agent of one such alternative over another shall not be subject to question or
challenge by Guarantor or any other person, nor shall any such choice be
asserted as a defense, set-off or failure to mitigate damages in any action,
proceeding or counteraction by Administrative Agent for the benefit of itself
and/or the Lenders to recover or seeking any other remedy under this Guaranty,
nor shall such choice preclude Administrative Agent from subsequently electing
to exercise a different remedy. The parties have agreed to the alternative
remedies hereinabove specified in part because they recognize that the choice of
remedies in the event of a failure hereunder will necessarily and should
properly be a matter of business judgment, which, with hindsight after the
passage of time and events, may or may not prove to have been the best choice to
maximize recovery by Administrative Agent for the benefit of itself and the
Lenders at the lowest cost to Borrower and/or Guarantor. It is the intention of
the parties that such choice by Administrative Agent be given conclusive effect
regardless of such subsequent developments.
3. Guarantor does hereby waive (i) notice of acceptance of this Guaranty by
Administrative Agent or the Lenders and any and all notices and demands of every
kind which may
be required to be given by any statute, rule or law, (ii) any defense, right of
set-off or other claim which Guarantor may have against the Borrower or which
Guarantor or Borrower may have against Administrative Agent or any of the
Lenders or the holder of the Revolving Note, (iii) presentment for payment,
demand for payment, notice of nonpayment, dishonor, protest and notice of
protest, diligence in collection and any and all formalities which otherwise
might be legally required to charge Guarantor with liability, (iv) any failure
by Administrative Agent or any of the Lenders to inform Guarantor of any facts
Administrative Agent or any of the Lenders may now or hereafter know about
Borrower, the Facility, or the transactions contemplated by the Credit
Agreement, it being understood and agreed that Administrative Agent and the
Lenders have no duty so to inform and that Guarantor is fully responsible for
being and remaining informed by Borrower of all circumstances bearing on the
existence or creation or risk of nonpayment of the Facility Indebtedness or the
risk of nonperformance of the Obligations, and (v) any and all right to cause a
marshaling of assets of the Borrower or any other action by any court or
governmental body with respect thereto, or to cause Administrative Agent or any
of the Lenders to proceed against any other security given to Administrative
Agent or any of the Lenders in connection with the Facility Indebtedness or the
Obligations. Credit may be granted or continued from time to time by Lenders to
Borrower without notice to or authorization from Guarantor, regardless of the
financial or other condition of Borrower at the time of any such grant or
continuation. Guarantor acknowledges that no representations of any kind
whatsoever have been made by Administrative Agent or any of the Lenders to
Guarantor. No modification or waiver of any of the provisions of this Guaranty
shall be binding upon Administrative Agent or the Lenders except as expressly
set forth in a writing duly signed and delivered on behalf of Administrative
Agent and the Lenders.
4. Guarantor further agrees that Guarantor's liability as guarantor
shall in nowise be impaired by any renewals or extensions which may be made from
time to time, with or without the knowledge or consent of Guarantor of the time
for payment of interest or principal under the Revolving Note or by any
forbearance or delay in collecting interest or principal under the Revolving
Note, or by any waiver under the Credit Agreement or any other Loan Documents,
or by failure or election not to pursue any other remedies against Borrower, or
by any change or modification in the Revolving Note, the Credit Agreement or any
other Loan Documents, or by the acceptance of any additional security or any
increase, substitution or change therein, or by the release of any security or
any withdrawal thereof or decrease therein, or by the application of payments
received from any source to the payment of any obligation other than the
Facility Indebtedness, even though Administrative Agent or the Lenders might
lawfully have elected to apply such payments to any part or all of the Facility
Indebtedness, it being the intent hereof that Guarantor shall remain liable as
principal for payment of the Facility Indebtedness and performance of the
Obligations until all indebtedness has been paid in full and the other terms,
covenants and conditions of the Credit Agreement and other Loan Documents and
this Guaranty have been performed, notwithstanding any act or thing which might
otherwise operate as a legal or equitable discharge of a surety. Guarantor
further understands and agrees that Administrative Agent and the Lenders may at
any time enter into agreements with Borrower to amend and modify the Revolving
Note, Credit Agreement or other Loan Documents, and may waive or release any
provision or provisions thereof, and, with reference to such instruments, may
make and enter into any such agreement or agreements as Administrative Agent,
the Lenders and Borrower may deem proper and desirable, without in any manner
impairing this Guaranty or any of Administrative Agent's or the Lenders' rights
hereunder or any of the Guarantor's obligations hereunder.
5. This is an absolute, unconditional, complete, present and continuing
guaranty of payment and performance, and not of collection only. Guarantor
agrees that this Guaranty may be enforced by Administrative Agent and the
Lenders without the necessity at any time of resorting to
or exhausting any other security or collateral given in connection herewith or
with the Facility or any of the Loan Documents, or resorting to any other
guaranties, and Guarantor hereby waives the right to require Administrative
Agent or the Lenders to join Borrower in any action brought hereunder or to
commence any action against or obtain any judgment against Borrower or to pursue
any other remedy or enforce any other right. Guarantor further agrees that
nothing contained herein or otherwise shall prevent Administrative Agent and the
Lenders from pursuing concurrently or successively all rights and remedies
available to it at law and/or in equity or under any of the Loan Documents, and
the exercise of any of its rights or the completion of any of its remedies shall
not constitute a discharge of any of Guarantor's obligations hereunder, it being
the purpose and intent of Guarantor that the obligations of Guarantor hereunder
shall be primary, absolute, independent and unconditional under any and all
circumstances whatsoever. Neither Guarantor's obligations under this Guaranty
nor any remedy for the enforcement thereof shall be impaired, modified, changed
or released in any manner whatsoever by any impairment, modification, change,
release or limitation of the liability of Borrower under the Revolving Note, the
Credit Agreement or any other Loan Documents or by reason of Borrower's
bankruptcy or by reason of any creditor or bankruptcy proceeding instituted by
or against Borrower. This Guaranty shall continue to be effective and be deemed
to have continued in existence or be reinstated (as the case may be) if at any
time payment of all or any part of any sum payable pursuant to the Revolving
Note, the Credit Agreement or any other Loan Document is rescinded or otherwise
required to be returned by the payee upon the insolvency, bankruptcy, or
reorganization of the payer, all as though such payment had not been made,
regardless of whether Administrative Agent or any of the Lenders contested the
order requiring the return of such payment. The obligations of Guarantor
pursuant to the preceding sentence shall survive any termination, cancellation
or release of this Guaranty.
6. This Guaranty shall be assignable by Agents and/or any of the
Lenders to any assignee of all or a portion of Agents and/or such Lender's
rights under the Loan Documents.
7. If: (i) this Guaranty, the Revolving Note, the Credit Agreement or
any other Loan Document is placed in the hands of an attorney for collection or
is collected through any legal proceeding; (ii) an attorney is retained to
represent Administrative Agent and/or any of the Lenders in any bankruptcy,
reorganization, receivership, or other proceedings affecting creditors' rights
and involving a claim under this Guaranty, the Revolving Note, the Credit
Agreement or any Loan Document; (iii) an attorney is retained to provide advice
or other representation with respect to the Loan Documents in connection with an
enforcement action or potential enforcement action; or (iv) an attorney is
retained to represent Administrative Agent and/or any of the Lenders in any
other legal proceedings whatsoever in connection with this Guaranty, the
Revolving Note, the Credit Agreement, any of the other Loan Documents or any
property subject thereto, then Guarantor shall pay to Administrative Agent upon
demand all reasonable attorney's fees, costs and expenses, including, without
limitation, court costs, filing fees, recording costs and all other costs and
expenses whatsoever incurred in connection therewith (all of which are referred
to herein as "Enforcement Costs"), in addition to all other amounts due
hereunder.
8. The parties hereto intend that each provision in this Guaranty
comports with all applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Guaranty is found by a court of competent
jurisdiction to be in violation of any applicable local, state or federal
ordinance, statute, law, administrative or judicial decision, or public policy,
and if such court should declare such portion, provision or provisions of this
Guaranty to be illegal, invalid, unlawful, void or unenforceable as written,
then it is the intent of all parties hereto that such portion, provision or
provisions shall be given force to the fullest possible extent that they are
legal, valid and
enforceable, that the remainder of this Guaranty shall be construed as if such
illegal, invalid, unlawful, void or unenforceable portion, provision or
provisions were not contained therein, and that the rights, obligations and
interest of Administrative Agent, the Lenders and the holder(s) of the Revolving
Note under the remainder of this Guaranty shall continue in full force and
effect.
9. Any indebtedness of Borrower to Guarantor now or hereafter existing
is hereby subordinated to the Facility Indebtedness. Guarantor agrees that until
the entire Facility Indebtedness has been paid in full, (i) Guarantor will not
seek, accept or retain for Guarantor's own account, any payment from Borrower on
account of such subordinated debt, and (ii) any such payments to Guarantor on
account of such subordinated debt shall be collected and received by Guarantor
in trust for Administrative Agent and the Lenders and shall be paid over to
Administrative Agent on account of the Facility Indebtedness without impairing
or releasing the obligations of Guarantor hereunder.
10. Guarantor waives and releases any claim (within the meaning of 11
U.S.C. Para. 101) which Guarantor may have against Borrower arising from a
payment made by Guarantor under this Guaranty and agrees not to assert or take
advantage of any subrogation rights of Guarantor, Administrative Agent or the
Lenders or any right of Guarantor, Administrative Agent or the Lenders to
proceed against (i) Borrower for reimbursement, or (ii) any other guarantor or
any collateral security or guaranty or right of offset held by Administrative
Agent or the Lenders for the payment of the Facility Indebtedness and
performance of the Obligations, nor shall Guarantor seek or be entitled to seek
any contribution or reimbursement from Borrower or any other guarantor in
respect of payments made by Guarantor hereunder. It is expressly understood that
the waivers and agreements of Guarantor set forth above constitute additional
and cumulative benefits given to Administrative Agent and the Lenders for their
security and as an inducement for their continuing extension of credit to
Borrower.
11. Any amounts received by Administrative Agent or Lender from any
source on account of any indebtedness may be applied by Administrative Agent
toward the payment of such indebtedness, and in such order of application, as
Administrative Agent may from time to time elect.
12. This Guaranty shall be governed by the internal laws of the State
of Illinois, without regard to its choice of law rules or conflict of laws
principles. The Guarantor hereby submits to personal jurisdiction in the State
of Illinois for the enforcement of this Guaranty and waives any and all personal
rights to object to such jurisdiction for the purposes of litigation to enforce
this Guaranty. Guarantor hereby consents to the jurisdiction of either the
Circuit Court of Xxxx County, Illinois, or the United States District Count for
the Northern District of Illinois, in any action, suit, or proceeding which
Administrative Agent or the Lenders may at any time wish to file in connection
with this Guaranty or any related matter. Guarantor hereby agrees that an
action, suit, or proceeding to enforce this Guaranty may be brought in any state
or federal court in the State of Illinois and hereby waives any objection which
Guarantor may have to the laying of the venue of any such action, suit, or
proceeding in any such court; provided, however, that the provisions of this
Paragraph shall not be deemed to preclude Administrative Agent or the Lenders
from filing any such action, suit, or proceeding in any other appropriate forum.
13. All notices and other communications provided to any party hereto
under this Agreement or any other Loan Document shall be in writing or by
facsimile and addressed or delivered to such party at its address set forth
below or at such other address as may be designated by such party in a notice to
the other parties. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if transmitted by
facsimile, shall be deemed given when transmitted. Notice may be given as
follows:
To the Guarantor:
Attention:
Telecopy:
With a copy to:
Attention:
Telecopy:
To the Administrative Agent or the Lenders:
Bank of America National Trust and Savings Association
000 X. XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxx
Telecopy: (000) 000-0000
With a copy to:
Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice.
14. Guarantors and Lender agree that such Guarantor's obligations
hereunder shall not exceed the greater of: (i) the aggregate amount of all
monies received, directly or indirectly, by such Guarantor from Borrower after
the date hereof (whether by loan, capital infusion or other means), or (ii) the
maximum amount not subject to avoidance under Title 11 of the United State Code,
as same may be amended from time to time, or any applicable state law (the
"Bankruptcy Code"). To that end, to the extent such obligations would otherwise
be subject to avoidance under the Bankruptcy Code if such Guarantor is not
deemed to have received valuable consideration, fair value or reasonably
equivalent value for its obligations hereunder, any such Guarantor's obligations
hereunder shall be reduced to that amount which, after giving effect thereto,
would not render such Guarantor insolvent, or leave such Guarantor with an
unreasonably small capital to conduct its business, or cause the Guarantor to
have incurred debts (or intended to have incurred debts) beyond its ability to
pay such debts as they mature, as such terms are determined, and at the time
such obligations are deemed to have been incurred, under the Bankruptcy Code. In
the event any Guarantor shall make any payment or payments under this Guaranty,
each other Guarantor shall contribute to such paying Guarantor an amount equal
to such non-paying Guarantor's pro rata share
(based on their respective maximum liabilities hereunder) of such payment or
payments made by such paying Guarantor, provided that such contribution right
shall be subordinate and junior in right of payment to all the Facility
Indebtedness and performance of all of the Obligations to Lender.
14. This Guaranty shall be binding upon the heirs, executors, legal and
personal representatives, successors and assigns of Guarantor and shall inure to
the benefit of Administrative Agent's, Documentation Agent's and Lender's
successors and assigns.
15. This Guaranty shall be construed and enforced under the internal laws
of the State of Illinois.
16. EACH GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN
ANY WAY IN CONNECTION WITH THIS GUARANTY, OR ANY OF THE OTHER LOAN DOCUMENTS,
THE LOAN, OR ANY OTHER STATEMENTS OR ACTIONS OF ANY PARTY HERETO. EACH GUARANTOR
ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS GUARANTY AND IN
THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE
WILL, AND THAT IT HAS DISCUSSED THIS WAIVER WITH SUCH LEGAL COUNSEL. GUARANTOR
FURTHER ACKNOWLEDGES THAT (i) IT HAS READ AND UNDERSTANDS THE MEANING AND
RAMIFICATIONS OF THIS WAIVER, (ii) THIS WAIVER HAS BEEN REVIEWED BY GUARANTOR
AND GUARANTOR'S COUNSEL AND IS A MATERIAL INDUCEMENT FOR ADMINISTRATIVE AGENT
AND LENDERS TO MAKE THE LOAN, ENTER INTO THE CREDIT AGREEMENT AND EACH OF THE
OTHER LOAN DOCUMENTS, AND (iii) THIS WAIVER SHALL BE EFFECTIVE AS TO EACH OF
SUCH OTHER LOAN DOCUMENTS AS IF FULLY INCORPORATED THEREIN.
IN WITNESS WHEREOF, Guarantor has delivered this Guaranty as of the
date first written above.
By:
Its:
STATE OF )
) SS.
COUNTY OF )
I, the undersigned, a Notary Public, in and for said County, in the
State aforesaid, DO HEREBY CERTIFY, that , the of , personally known to me to be
the same person whose name is subscribed to the foregoing instrument, appeared
before me this day in person and acknowledged that he signed and delivered the
said instrument as his own free and voluntary act and as the free and voluntary
act of said corporation, for the uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal, this day of , 199 .
Notary Public
EXHIBIT B
FORM OF REVOLVING NOTE
PROMISSORY NOTE
$ January ____, 1998
On or before the Maturity Date, as defined in that certain Unsecured
Revolving Credit Agreement dated as of January 6, 1998 (the "Agreement") between
Great Lakes REIT, L.P., a Delaware limited partnership corporation ("Borrower"),
Bank of America National Trust and Savings Association, individually and as
Administrative Agent for the Lenders (as such terms are defined in the
Agreement), The First National Bank of Chicago, individually and as
Documentation Agent ("First Chicago") and the other Lenders, Borrower promises
to pay to the order of (the "Lender"), or its successors and assigns, the
principal sum of AND NO/100 DOLLARS ($ ) or the aggregate unpaid principal
amount of all Loans made by the Lender to Borrower pursuant to Section 2.1 of
the Agreement, in immediately available funds to the account, or at the office
of, Administrative Agent specified in Section 2.11 of the Agreement, together
with interest on the unpaid principal amount hereof at the rates and on the
dates set forth in the Agreement. The Borrower shall pay this Promissory Note
("Note") in full on or before the Maturity Date in accordance with the terms of
the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is issued pursuant to, and is entitled to the security under and
benefits of, the Agreement and the other Loan Documents, to which Agreement and
Loan Documents, as they may be amended from time to time, reference is hereby
made for, inter alia, a statement of the terms and conditions under which this
Note may be prepaid or its maturity date accelerated. Capitalized terms used
herein and not otherwise defined herein are used with the meanings attributed to
them in the Agreement.
If there is an Event of Default or Default under the Agreement or any other
Loan Document and Lender exercises its remedies provided under the Agreement
and/or any of the Loan Documents, then in addition to all amounts recoverable by
the Lender under such documents, Lender shall be entitled to receive reasonable
attorneys fees and expenses incurred by Lender in exercising such remedies.
Borrower and all endorsers severally waive presentment, protest and demand,
notice of protest, demand and of dishonor and nonpayment of this Note (except as
otherwise expressly provided for in the Agreement), and any and all lack of
diligence or delays in collection or enforcement of this Note, and expressly
agree that this Note, or any payment hereunder, may be extended from time to
time, and expressly consent to the release of any party liable for the
obligation secured by this Note, the release of any of the security of this
Note, the acceptance of any other security therefor, or any other indulgence or
forbearance whatsoever, all without notice to any party and without affecting
the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of
the State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LITIGATION ARISING IN ANY WAY IN CONNECTION WITH THIS NOTE, OR ANY
OF THE OTHER LOAN DOCUMENTS, THE LOAN, OR ANY OTHER STATEMENTS OR ACTIONS OF ANY
PARTY HERETO. BORROWER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE SIGNING
OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL
SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS DISCUSSED THIS WAIVER WITH SUCH
LEGAL COUNSEL. BORROWER FURTHER ACKNOWLEDGES THAT (i) IT HAS READ AND
UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER, (ii) THIS WAIVER HAS
BEEN REVIEWED BY BORROWER AND BORROWER'S COUNSEL AND IS A MATERIAL INDUCEMENT
FOR LENDER TO MAKE THE LOAN, ENTER INTO THE AGREEMENT AND EACH OF THE OTHER LOAN
DOCUMENTS, AND (iii) THIS WAIVER SHALL BE EFFECTIVE AS TO EACH OF SUCH OTHER
LOAN DOCUMENTS AS IF FULLY INCORPORATED THEREIN.
GREAT LAKES REIT, L.P.
By: Great Lakes REIT, Inc., its general partner
By:
Its:
LOANS AND PAYMENTS
Date
Loan
Principal
Payments
Unpaid
Principal
Balance
Notation
Made By
EXHIBIT C
OPINION OF BORROWER'S COUNSEL
(Attached Hereto)
EXHIBIT D
OPINION OF GUARANTORS' COUNSEL
See Exhibit C attached hereto.
EXHIBIT E
WIRING INSTRUCTIONS
To: Bank of America National Trust and Saving Association,
as Administrative Agent (the "Administrative Agent") under the Credit
Agreement described below
Re: Unsecured Revolving Credit Agreement, dated as of January 6,
1998 (as amended, modified, renewed or extended from time to
time, the "Agreement"), among Great Lakes REIT, L.P. (the
"Borrower"), Administrative Agent, the Documentation Agent and
the Lenders named therein. Terms used herein and not otherwise
defined shall have the meanings assigned thereto in the
Agreement.
The Administrative Agent is specifically authorized and directed to act upon
the following standing money transfer instructions with respect to the proceeds
of Advances or other extensions of credit from time to time until receipt by the
Administrative Agent of a specific written revocation of such instructions by
the Borrower, provided, however, that the Administrative Agent may also transfer
funds as hereafter directed in writing by the Borrower in accordance with
Section 15.1 of the Agreement.
Facility Identification Number(s)
Customer/Account Name
Transfer Funds To
For Account No.
Reference/Attention To
Authorized Officer (Customer Representative) Date
(Please Print) Signature
Bank Officer Name Date
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
EXHIBIT F
FORM OF COMPLIANCE CERTIFICATE
To: The Administrative Agent and the Lenders
who are parties to the Agreement described below
This Compliance Certificate is furnished pursuant to that certain Unsecured
Revolving Credit Agreement, dated as of January 6, 1998 (as amended, modified,
renewed or extended from time to time, the "Agreement") among Great Lakes REIT,
L.P. ("Borrower"), Bank of America National Trust and Savings Association,
individually and as Administrative Agent, the Documentation Agent and the
Lenders named therein. Unless otherwise defined herein, capitalized terms used
in this Compliance Certificate have the respective meanings ascribed thereto in
the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected [Chief Financial Officer]
[Chief Accounting Officer] [Controller] of General Partner.
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Consolidated Operating Partnership and Investment
Affiliates during the accounting period covered by the financial statements
attached (or most recently delivered to the Administrative Agent if none are
attached).
3. The examinations described in Paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Material Adverse Financial Change, Event of Default or Default during or at
the end of the accounting period covered by the attached financial statements or
as of the date of this Compliance Certificate, except as set forth below.
4. Schedule I (if attached) attached hereto sets forth financial data
and computations and other information evidencing Borrower's compliance the
covenants contained in Article VII of the Agreement with certain other covenants
of the Agreement, all of which data, computations and information (or if no
Schedule I is attached, the data, computations and information contained in the
most recent Schedule I attached to a prior Compliance Certificate) are true,
complete and correct in all material respects.
5. The financial statements, updates, reports and other materials
referred to in Section 8.2(i), 8.2(ii), 8.2(iv), or 8.2(viii), as the case may
be, of the Agreement which are delivered concurrently with the delivery of this
Compliance Certificate, if any, and those most recently delivered pursuant to
Section 8.2(v) and Section 8.14 of the Agreement, if any, fairly and accurately
present in all material respects, in the case of financial statements, the
consolidated financial condition and operations of the Consolidated Operating
Partnership at such date and the consolidated results of their operations for
the period then-ended, in accordance with GAAP applied consistently throughout
such period and with prior periods and, in the case of deliveries other than
financial statements, the matters set forth therein as of the dates and for the
periods covered thereby; provided, however, that any projections included
therein constitute good faith estimates of reasonably anticipated future matters
which cannot be predicted with certainty.
Described below are the exceptions, if any, to Paragraph 3 by listing,
in detail, the nature of
the condition or event, the period during which it has existed and the action
which the Borrower has taken, is taking, or proposes to take with respect to
each such condition or event:
The foregoing certifications, together with the computations and
information set forth in Schedule I hereto and the financial statements,
updates, reports and other materials delivered with or covered by this
Compliance Certificate are made and delivered this day of , 19
.
, a Qualified Officer of General Partner
EXHIBIT G
SCOPE OF WORK FOR ENVIRONMENTAL INVESTIGATIONS
ENVIRONMENTAL SITE ASSESSMENTS
Bank of America ("BofA") Reporting Standards
The following are BofA Guidelines for the qualification of firms and for
information to be included in Environmental Site Assessments. These standards
include the minimum elements common to acceptable site assessments. Generally,
it is intended for the standards to be consistent with those outlined in the
American Society for Testing and Materials (ASTM) Designation: E 1527-93. This
listing is not intended to be a "how to" manual, as we rely on the environmental
professionals to expand the scope of their services and the information included
in the reports as required.
Qualifications of Investigating Firm
The firm must have 5 years of experience in hazardous substances
investigation. Many of these firms began as geotechnical consultants,
but expertise only in soils analysis does not qualify them for
hazardous substance analysis. The person supervising and signing the
report should be experienced in all matters covered in the report. He
should be a registered professional engineer or have advanced degrees
in related disciplines. The firm performing the work should be of a
professional nature with knowledge of local conditions.
Depth of Reporting Required
Phase I - Consists of site description, review of historical and
regulatory data and a physical inspection. If no potential
contamination is indicated, the report should so state, and a specific
statement should be made that no further investigation is required (see
content requirements below).
Phase II - If a Phase I examination indicates the possibility of
contamination, the consultant should describe his suspicions, the areas
to be tested, sampling procedures to be used and methods used to assess
the sample. He should then specify and carry out a testing program for
further evaluation.
Phase III - If Phase II reveals material contamination at the site in
amounts or concentrations that are deemed unacceptable by BofA in its
sole discretion, the consultant will design and implement a remediation
program to remove the identified hazardous materials in accordance with
all environmental laws. The report should include an estimated cost for
the clean-up.
BofA will initially require a Phase I site assessment report including the
following:
Site Description
The site description section should include a detailed description of
the site, existing buildings and current site use. It should also
include a general description of the uses and conditions of adjacent
properties which might result in migrating contamination. It should
include a summary of the visual observations including, but not limited
to, vegetation stress, debris, fill materials, ponding, evidence of
underground storage tanks, evidence of previous dumping or storage,
discolored or stained soils, wetlands, groundwater flows, and a
description of regional geology and hydrology. On vacant sites, the
investigator should compare his observations to a USGS topographic map,
noting any changes in elevations or depressions which have been covered
over, possibly indicating past dumping or burial of wastes.
On sites with existing improvements, the investigator should interview
personnel at the site regarding hazardous materials currently or
previously used at the site, underground storage tanks, pipeline right
of ways and any other areas of concern. Buildings should be checked for
asbestos containing materials, PCB equipment, etc.
Historical Uses of Site, Adjacent Properties, and Significant Nearby Properties
The historical analysis should provide a chronology of past and present
significant uses of the subject site and adjacent sites, and highlight
activities which might have contributed unacceptable levels of
contaminants. It should contain an explanation of the methods of
historical search which were pursued, the information expected to be
obtained and the information actually obtained from each search. In
general, the historical review should cover 30-40 years of history
depending on the availability of information. Its purpose is to
investigate the possibility of prior hazardous substances releases at
the property, identify potential contingent liability from historic
off-site disposal of hazardous substances, or identify sources of
contamination which have or might in the future migrate to the site.
The historical analysis should include but not be limited to:
Review of aerial photographs to identify past land uses and
development trends, and identify possible locations of ponds,
landfills, tanks, areas of soil discoloration or drum storage.
Review of county tax records or title search to identify past uses of
potential concern such as gas stations or industrial uses.
Conversations with local environmental and health officials,
investigation of local, state and federal regulatory agencies
files including the EPA and Corps of Engineers, and a check of
EPA lists of known contaminated sites, to check for recorded
hazardous substances handling, or potential permitting
requirements of air emissions, wastewater, RCRA or TSD
permits.
Other information which may be attached to the report include, but
should not be limited to:
A discussion of existing and proposed environmental standards and
legislation of the area
Site Plan
Ground level photos of the site with specific attention to any
characteristics noted in the report
Area diagram showing the location of any matters mentioned in the report
and showing the site and adjacent properties if any potential hazardous sources
are identified on adjacent or nearby properties
Copies of representative aerial photos
Copies of correspondence with regulatory agencies
Documents acquired during title search
Chain of custody records
Location map of site and immediate surroundings
Listing of adjacent property owners and use of the properties
Any other material available which describes or verifies information
given or conclusions drawn in the report
Conclusions and Recommendations
The Consultant will prepare a complete written report which fully
defines the scope of his responsibilities and objectives. It should
describe the sources used, the activities performed, the dates when
activities were performed, the results of research and recommendations.
Specific recommendations for remedial action, additional tests or
investigations for each recognized area of concern or condition and
approximate costs of further investigation or remediation shall be
provided within the report.
The conclusion section must clearly state that the firm has exercised
professional judgment in reaching one of the following:
The Consultant, after performing the appropriate level of
investigation, has revealed no evidence of recognized
environmental conditions in connection with the subject
property and no further testing or investigation is warranted.
or
The Consultant, after performing the appropriate level of
investigation, has revealed no evidence of recognized
environmental conditions in connection with the subject
property except for the following:
If the Consultant was restricted by factors such as time limitations or
scope-of-service limitations agreed to with the borrower, the report
should so state.
The report is to be signed by a professional engineer, environmental
manager or supervisor or any other individuals who provide significant
professional assistance in completing the assignment. The
qualifications of the individuals signing the report should be
included.
EXHIBIT H
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
(the "Assignor") and , (the "Assignee") is dated as of
, 19_. The parties hereto agree as follows:
PRELIMINARY STATEMENT. The Assignor is a party to an Unsecured
Revolving Credit Agreement (which, as it may be amended, modified, renewed or
extended from time to time is herein called the "Credit Agreement") described in
Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement and the other Loan Documents. The aggregate
Commitment (or Loans, if the applicable Commitment has been terminated)
purchased by the Assignee hereunder is set forth in Item 4 of Schedule 1.
EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two (2) Business Days (or such shorter period agreed to by the
Administrative Agent) after a Notice of Assignment substantially in the form of
Schedule 2 attached hereto has been delivered to the Administrative Agent. In no
event will the Effective Date occur if the payments required to be made by the
Assignee to the Assignor on the Effective Date under Sections 4 and 5 hereof are
not made on the proposed Effective Date, unless otherwise agreed to in writing
by Assignor and Assignee. The Assignor will notify the Assignee of the proposed
Effective Date no later than the Business Day prior to the proposed Effective
Date. As of the Effective Date, (i) the Assignee shall have the rights and
obligations of a Lender under the Loan Documents with respect to the rights and
obligations assigned to the Assignee hereunder and (ii) the Assignor shall
relinquish its rights and be released from its corresponding obligations under
the Loan Documents with respect to the rights and obligations assigned to the
Assignee hereunder.
PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Administrative Agent all payments of
principal, interest and fees with respect to the interest assigned hereby. The
Assignee shall advance funds directly to the Administrative Agent with respect
to all Loans and reimbursement payments made on or after the Effective Date with
respect to the interest assigned hereby. [In consideration for the sale and
assignment of Loans hereunder, (i) the Assignee shall pay the Assignor, on the
Effective Date, an amount equal to the principal amount of the portion of all
Base Rate Loans assigned to the Assignee hereunder and (ii) with respect to each
LIBOR Loan made by the Assignor and assigned to the Assignee hereunder which is
outstanding on the Effective Date, (a) on the last day of the Interest Period
therefor or (b) on such earlier date agreed to by the Assignor and the Assignee
or (c) on the date on which any such Loan either becomes due (by acceleration or
otherwise) or is prepaid (the
date as described in the foregoing clauses (a), (b) or (c) being hereinafter
referred to as the "Fixed Due Date"), the Assignee shall pay the Assignor an
amount equal to the principal amount of the portion of such Loan assigned to the
Assignee which is outstanding on the Fixed Due Date. If the Assignor and the
Assignee agree that the applicable Fixed Due Date for such Loan shall be the
Effective Date, they shall agree, solely for purposes of dividing interest paid
by the Borrower on such Loan, to an alternate interest rate applicable to the
portion of such Loan assigned hereunder for the period from the Effective Date
to the end of the related Interest Period (the "Agreed Interest Rate") and any
interest received by the Assignee in excess of the Agreed Interest Rate, with
respect to such Loan for such period, shall be remitted to the Assignor. In the
event a prepayment of any Loan which is existing on the Effective Date and
assigned by the Assignor to the Assignee hereunder occurs after the Effective
Date but before the applicable Fixed Due Date, the Assignee shall remit to the
Assignor any excess of the funding indemnification amount paid by the Borrower
under Section 4.4 of the Credit Agreement an account of such prepayment with
respect to the portion of such Loan assigned to the Assignee hereunder over the
amount which would have been paid if such prepayment amount were calculated
based on the Agreed Interest Rate and only covered the portion of the Interest
Period after the Effective Date. The Assignee will promptly remit to the
Assignor (i) the portion of any principal payments assigned hereunder and
received from the Administrative Agent with respect to any such Loan prior to
its Fixed Due Date and (ii) any amounts of interest on Loans and fees received
from the Administrative Agent which relate to the portion of the Loans assigned
to the Assignee hereunder for periods prior to the Effective Date, in the case
of Base Rate Loans or fees, or the Fixed Due Date, in the case of LIBOR Loans,
and not previously paid by the Assignee to the Assignor.]* In the event that
either party hereto receives any payment to which the other party hereto is
entitled under this Assignment Agreement, then the party receiving such amount
shall promptly remit it to the other party hereto.
FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor a
fee on each day on which a payment of interest or fees is made under the Credit
Agreement with respect to the amounts assigned to the Assignee hereunder (other
than a payment of interest or fees attributable to the period prior to the
Effective Date in the case of Base Rate Loans or, in the case of LIBOR Loans,
prior to the Fixed Due Date, which the Assignee is obligated to deliver to the
Assignor pursuant to Section 4 hereof). The amount of such fee shall be the
difference between (i) the interest or fee, as applicable, paid with respect to
the amounts assigned to the Assignee hereunder and (ii) the interest or fee, as
applicable, which would have been paid with respect to the amounts assigned to
the Assignee hereunder if each interest rate was calculated at the rate of _%
rather than the actual percentage used to calculate the interest rate paid by
the Borrower or if the fee was calculated at the rate of __% rather than the
actual percentage used to calculate the fee paid by the Borrower, as applicable.
In addition, the Assignee agrees to pay % of the fee required to be paid to the
Administrative Agent in connection with this Assignment Agreement. [This
sentence can be revised appropriately based on how the fee is being paid.]
1.*Each Assignor may insert its standard provisions in lieu of the
payment terms included in Sections 4 and 5 of this Exhibit.
REPRESENTATIONS OF THE ASSIGNOR: LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor nor
any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity,
enforceability, genuineness, sufficiency or collectability of any Loan Document,
including without limitation, documents granting the Assignor and the other
Lenders a security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower, its Subsidiaries or Investment
Affiliates, (vi) the validity, enforceability, perfection, priority, condition,
value or sufficiency of any collateral securing or purporting to secure the
Loans or (vii) any mistake, error of judgment, or action taken or omitted to be
taken in connection with the Loans or the Loan Documents.
REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it has
received a copy of the Credit Agreement and the other Loan Documents, together
with copies of the financial statements requested by the Assignee and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment Agreement, (ii) agrees that
it will, independently and without reliance upon the Administrative Agent, the
Assignor or any other Lender and based on such documents and information at it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, (iii) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, (iv) agrees that 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, (v) agrees that its payment
instructions and notice instructions are as set forth in the attachment to
Schedule 1, (vi) confirms that none of the funds, monies, assets or other
consideration being used to make the purchase and assumption hereunder are "plan
assets" as defined under ERISA and that its rights, benefits and interests in
and under the Loan Documents will not be "plan assets" under ERISA, [and (vii)
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying that the Assignee is entitled to receive payments under the
Loan Documents without deduction or withholding of any United States federal
income taxes].**
** to be inserted if the Assignee is not incorporated under the laws of the
United States, or a state thereof.
INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 13.3.1 of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under Sections 4, 5 and 8 hereof.
REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the Aggregate
Commitment occurs between the date of this Assignment Agreement and the
Effective Date, the
percentage interest specified in Item 3 of Schedule 1 shall remain the same, but
the dollar amount purchased shall be recalculated based on the reduced Aggregate
Commitment.
ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice of
Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
NOTICES. Notices shall be given under this Assignment Agreement in the
manner set forth in the Credit Agreement. For the purpose hereof, the addresses
of the parties hereto until notice of a change is delivered) shall be the
address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement by their duly authorized officers as of the date first
above written.
[NAME OF ASSIGNOR]
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
SCHEDULE 1 TO
ASSIGNMENT AGREEMENT
Description and Date of Credit Agreement:
Date of Assignment Agreement: __________, 19__
Amounts (as of date of Item 2 above):
a. Aggregate Commitment
(Loans)* under
Loan Agreement $
b. Assignee's Percentage
of the Aggregate Commitment
purchased under this
Assignment Agreement** %
Amount of Assignee's Commitment (Loan Amount)*
purchased under this Assignment Agreement: $
Amount of Assignor's Commitment (Loan Amount)
after purchase under this Assignment Agreement
Proposed Effective Date:
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
Title: Title:
*If a Commitment has been terminated, insert outstanding Loans in place of
Commitment.
**Percentage taken to 10 decimal places.
ATTACHMENT TO SCHEDULE 1 TO
ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address and account information for the Assignor
and the Assignee.
SCHEDULE 2 TO
ASSIGNMENT AGREEMENT
NOTICE OF ASSIGNMENT
______________, 19___
To: [NAME OF ADMINISTRATIVE AGENT]
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
We refer to that Unsecured Revolving Credit Agreement (the "Credit
Agreement") described in Item 1 of Schedule 1 attached hereto ("Schedule 1").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Loan Agreement.
This Notice of Assignment (this "Notice") is given and delivered to the
Administrative Agent pursuant to Section 13.3.1 of the Credit Agreement.
The Assignor and the Assignee have entered into an Assignment Agreement,
dated as of ______, 19___ (the "Assignment"), pursuant to which, among other
things, the Assignor has sold, assigned, delegated and transferred to the
Assignee, and the Assignee has purchased, accepted and assumed from the Assignor
the percentage interest specified in Item 3 of Schedule 1 of all outstanding
rights and obligations under the Credit Agreement. From and after such purchase,
the Assignor's Commitment shall be the amount specified in Item 5 of Schedule 1.
The Effective Date of the Assignment shall be the later of the date specified in
Item 5 of Schedule 1 or two (2) Business Days (or such shorter period as agreed
to by the Administrative Agent) after this Notice of Assignment and any fee
required by Section 13.3.1 of the Credit Agreement have been delivered to the
Administrative Agent, provided that the Effective Date shall not occur if any
condition precedent agreed to by the Assignor and the Assignee or set forth in
Section 13 of the Credit Agreement has not been satisfied.
The Assignor and the Assignee hereby give to the Administrative Agent
notice of the assignment and delegation referred to herein. The Assignor will
confer with the Administrative Agent before the date specified in Item 6 of
Schedule 1 to determine if the Assignment Agreement will become effective on
such date pursuant to Section 3 hereof, and will confer with the Administrative
Agent to determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Administrative Agent if the Assignment
Agreement does not become effective on any proposed Effective Date as a result
of the failure to satisfy the conditions precedent agreed to by the Assignor and
the Assignee. At the request of the Administrative Agent, the Assignor will give
the Administrative Agent written confirmation of the satisfaction of the
conditions precedent.
The Assignor or the Assignee shall pay to the Administrative Agent on or
before the Effective Date the processing fee of $3,500 required by Section
13.3.1 of the Loan Agreement.
If Notes are outstanding on the Effective Date, the Assignor and the
Assignee request and direct that the Administrative Agent prepare and cause the
Borrower to execute and deliver new Notes or, as appropriate, replacements notes
to the Assignor and the Assignee. The Assignor and, if applicable, the Assignee
each agree to deliver to the Administrative Agent the original Note received by
it from the Borrower upon its receipt of a new Note in the appropriate amount.
The Assignee advised the Administrative Agent that notice and payment
instructions are set forth in the attachment to Schedule 1.
The Assignee hereby represents and warrants that none of the funds, monies,
assets or other consideration being used to make the purchase pursuant to the
Assignment are "plan assets" as defined under ERISA and that its rights,
benefits and interests in and under the Loan Documents will not be "plan assets"
under ERISA.
The Assignee authorized the Administrative Agent to act as its agent under
the Loan Document in accordance with the terms thereof. The Assignee
acknowledges that the Administrative Agent has no duty to supply information
with respect to the Borrower or the Loan Documents to the Assignee until the
Assignee becomes a party to the Credit Agreement.*
*May be eliminated if Assignee is a party to the Loan Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: ______________________ By:
Title: __ Title:
ACKNOWLEDGED AND CONSENTED TO
BY BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION OF CHICAGO,
as Administrative Agent
SCHEDULE 6.1
CREDIT PARTIES
SCHEDULE 6.9
LITIGATION
None.
SCHEDULE 6.19
ENVIRONMENTAL MATTERS
SCHEDULE 6.24
TRADE NAMES
None.
SCHEDULE 6.25
SUBSIDIARIES (EXCLUDING CREDIT PARTIES)
There are no Subsidiaries that are not Credit Parties and no
Investment Affiliates.
SCHEDULE 6.26
PROPERTY
SCHEDULE 9.6
LIENS (OTHER THAN THOSE COVERED BY 9.6(i)-(vi))
