AMENDED AND RESTATED
CREDIT AGREEMENT
among
BRANDYWINE REALTY TRUST
and
BRANDYWINE OPERATING PARTNERSHIP, L.P.
as Borrowers
and
THE SUBSIDIARIES OF THE BORROWERS
as Guarantors
and
THE LENDERS IDENTIFIED HEREIN
and
NATIONSBANK, N.A.
as Administrative Agent
DATED AS OF JANUARY 5, 1998
TABLE OF CONTENTS
Page
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SECTION 1 DEFINITIONS AND ACCOUNTING TERMS. . . . . . . . . . . . . . . 1
1.1 Definitions.. . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.2 Computation of Time Periods and Other Definition Provisions.. . 21
1.3 Accounting Terms. . . . . . . . . . . . . . . . . . . . . . . . 21
1.4 Joint Venture Investments.. . . . . . . . . . . . . . . . . . . 22
SECTION 2 CREDIT FACILITY . . . . . . . . . . . . . . . . . . . . . . .22
2.1 Revolving Loans.. . . . . . . . . . . . . . . . . . . . . . . . 22
2.2 Letter of Credit Subfacility. . . . . . . . . . . . . . . . . . 25
2.3 Joint and Several Liability of the Borrowers. . . . . . . . . . 30
2.4 Appointment of BOP. . . . . . . . . . . . . . . . . . . . . . . 32
2.5 Non-Recourse. . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT.32
3.1 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.2 Place and Manner of Payments. . . . . . . . . . . . . . . . . . 33
3.3 Prepayments.. . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.4 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.5 Payment in full at Maturity; Extension of Maturity. . . . . . . 35
3.6 Computations of Interest and Fees.. . . . . . . . . . . . . . . 35
3.7 Pro Rata Treatment. . . . . . . . . . . . . . . . . . . . . . . 36
3.8 Sharing of Payments.. . . . . . . . . . . . . . . . . . . . . . 37
3.9 Capital Adequacy. . . . . . . . . . . . . . . . . . . . . . . . 38
3.10 Inability To Determine Interest Rate.. . . . . . . . . . . . . 38
3.11 Illegality.. . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.12 Requirements of Law. . . . . . . . . . . . . . . . . . . . . . 39
3.13 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
3.14 Compensation.. . . . . . . . . . . . . . . . . . . . . . . . . 42
3.15 Mitigation; Mandatory Assignment.. . . . . . . . . . . . . . . 43
SECTION 4 GUARANTY. . . . . . . . . . . . . . . . . . . . . . . . . . .43
4.1 Guaranty of Payment.. . . . . . . . . . . . . . . . . . . . . . 43
4.2 Obligations Unconditional.. . . . . . . . . . . . . . . . . . . 44
4.3 Modifications.. . . . . . . . . . . . . . . . . . . . . . . . . 44
4.4 Waiver of Rights. . . . . . . . . . . . . . . . . . . . . . . . 45
4.5 Reinstatement.. . . . . . . . . . . . . . . . . . . . . . . . . 45
4.6 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
4.7 Limitation of Guaranty. . . . . . . . . . . . . . . . . . . . . 46
4.8 Rights of Contribution. . . . . . . . . . . . . . . . . . . . . 46
i
SECTION 5 CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . . .46
5.1 Closing Conditions. . . . . . . . . . . . . . . . . . . . . . . 46
5.2 Conditions to All Extensions of Credit. . . . . . . . . . . . . 50
SECTION 6 REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . .51
6.1 Financial Condition.. . . . . . . . . . . . . . . . . . . . . . 51
6.2 No Material Change. . . . . . . . . . . . . . . . . . . . . . . 52
6.3 Organization and Good Standing. . . . . . . . . . . . . . . . . 52
6.4 Due Authorization.. . . . . . . . . . . . . . . . . . . . . . . 52
6.5 No Conflicts. . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.6 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.7 Enforceable Obligations.. . . . . . . . . . . . . . . . . . . . 53
6.8 No Default. . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.9 Ownership.. . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.10 Indebtedness.. . . . . . . . . . . . . . . . . . . . . . . . . 53
6.11 Litigation.. . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.12 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.13 Compliance with Law. . . . . . . . . . . . . . . . . . . . . . 54
6.14 Compliance with ERISA. . . . . . . . . . . . . . . . . . . . . 54
6.15 Organization Structure/Subsidiaries. . . . . . . . . . . . . . 55
6.16 Use of Proceeds; Margin Stock. . . . . . . . . . . . . . . . . 55
6.17 Government Regulation. . . . . . . . . . . . . . . . . . . . . 55
6.18 Environmental Matters. . . . . . . . . . . . . . . . . . . . . 56
6.19 Solvency.. . . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.20 Investments. . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.21 Location of Properties.. . . . . . . . . . . . . . . . . . . . 57
6.22 Disclosure.. . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.23 Licenses, etc. . . . . . . . . . . . . . . . . . . . . . . . . 58
6.24 No Burdensome Restrictions.. . . . . . . . . . . . . . . . . . 58
SECTION 7 AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . .58
7.1 Information Covenants.. . . . . . . . . . . . . . . . . . . . . 58
7.2 Financial Covenants.. . . . . . . . . . . . . . . . . . . . . . 62
7.3 Preservation of Existence.. . . . . . . . . . . . . . . . . . . 62
7.4 Books and Records.. . . . . . . . . . . . . . . . . . . . . . . 63
7.5 Compliance with Law.. . . . . . . . . . . . . . . . . . . . . . 63
7.6 Payment of Taxes and Other Indebtedness.. . . . . . . . . . . . 63
7.7 Insurance.. . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.8 Maintenance of Assets.. . . . . . . . . . . . . . . . . . . . . 63
7.9 Performance of Obligations. . . . . . . . . . . . . . . . . . . 64
7.10 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . 64
7.11 Audits/Inspections.. . . . . . . . . . . . . . . . . . . . . . 64
7.12 Additional Credit Parties. . . . . . . . . . . . . . . . . . . 64
7.13 Interest Rate Protection Agreements. . . . . . . . . . . . . . 65
7.14 [Intentionally Omitted]. . . . . . . . . . . . . . . . . . . . 65
7.15 Construction.. . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 8 NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . .65
ii
8.1 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.2 Liens.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.3 Nature of Business. . . . . . . . . . . . . . . . . . . . . . . 66
8.4 Consolidation and Merger. . . . . . . . . . . . . . . . . . . . 66
8.5 Sale or Lease of Assets.. . . . . . . . . . . . . . . . . . . . 66
8.6 Advances, Investments and Loans.. . . . . . . . . . . . . . . . 66
8.7 Restricted Payments.. . . . . . . . . . . . . . . . . . . . . . 67
8.8 Transactions with Affiliates. . . . . . . . . . . . . . . . . . 67
8.9 Fiscal Year; Organizational Documents.. . . . . . . . . . . . . 67
8.10 Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . 67
8.11 Other Negative Pledges.. . . . . . . . . . . . . . . . . . . . 68
8.12 Construction and Development.. . . . . . . . . . . . . . . . . 68
SECTION 9 EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . .68
9.1 Events of Default.. . . . . . . . . . . . . . . . . . . . . . . 68
9.2 Acceleration; Remedies. . . . . . . . . . . . . . . . . . . . . 71
9.3 Allocation of Payments After Event of Default.. . . . . . . . . 72
SECTION 10 AGENCY PROVISIONS. . . . . . . . . . . . . . . . . . . . . .73
10.1 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.2 Delegation of Duties.. . . . . . . . . . . . . . . . . . . . . 73
10.3 Exculpatory Provisions.. . . . . . . . . . . . . . . . . . . . 73
10.4 Reliance on Communications.. . . . . . . . . . . . . . . . . . 74
10.5 Notice of Default. . . . . . . . . . . . . . . . . . . . . . . 74
10.6 Non-Reliance on Administrative Agent and Other Lenders.. . . . 75
10.7 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . 75
10.8 Administrative Agent in Its Individual Capacity. . . . . . . . 76
10.9 Successor Agent. . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 11 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . .76
11.1 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
11.2 Right of Set-Off.. . . . . . . . . . . . . . . . . . . . . . . 77
11.3 Benefit of Agreement.. . . . . . . . . . . . . . . . . . . . . 77
11.4 No Waiver; Remedies Cumulative.. . . . . . . . . . . . . . . . 79
11.5 Payment of Expenses; Indemnification.. . . . . . . . . . . . . 79
11.6 Amendments, Waivers and Consents.. . . . . . . . . . . . . . . 80
11.7 Counterparts.. . . . . . . . . . . . . . . . . . . . . . . . . 81
11.8 Headings.. . . . . . . . . . . . . . . . . . . . . . . . . . . 81
11.9 Defaulting Lender. . . . . . . . . . . . . . . . . . . . . . . 81
11.10 Survival of Indemnification and Representations and Warranties.81
11.11 Governing Law; Jurisdiction.. . . . . . . . . . . . . . . . . 82
11.12 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . . 82
11.13 Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.14 Severability. . . . . . . . . . . . . . . . . . . . . . . . . 83
11.15 Entirety. . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.16 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . 83
11.17 Confidentiality.. . . . . . . . . . . . . . . . . . . . . . . 83
iii
SCHEDULES
Schedule 1.1(a) Borrowing Base Value
Schedule 1.1(b) Revolving Loan Commitment Percentages
Schedule 1.1(c) Existing Properties
Schedule 2.2(c) Existing Letters of Credit
Schedule 6.15 Organization Structure/Subsidiaries
Schedule 6.18 Environmental Matters
Schedule 6.21 Properties
Schedule 8.2 Liens
Schedule 8.6 Investments
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.1(b) Form of Notice of Borrowing
Exhibit 2.1(e) Form of Notice of Continuation/Conversion
Exhibit 2.1(g) Form of Revolving Loan Note
Exhibit 7.1(c) Form of Borrowing Base Certificate
Exhibit 7.1(d) Form of Officer's Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3 Form of Assignment Agreement
iv
AMENDED AND RESTATED
CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT (this "Credit Agreement") is
entered into as of January 5, 1998 among BRANDYWINE REALTY TRUST ("BRT"), a
Maryland real estate investment trust and BRANDYWINE OPERATING PARTNERSHIP, L.P.
("BOP"), a Delaware limited partnership (collectively as the "Borrowers"); the
Subsidiaries of the Borrowers as Guarantors, the Lenders (as defined herein) and
NATIONSBANK, N.A., as Administrative Agent for the Lenders (the "Administrative
Agent").
RECITALS
WHEREAS, BRT, BOP and certain Subsidiaries of BRT and BOP entered into that
certain Revolving Credit Agreement, dated as of November 25, 1996, with Xxxxx
Xxxxxx Mortgage Capital Group, Inc. and NationsBank, N.A. (as amended the
"Existing Credit Agreement");
WHEREAS, the Borrowers desire to amend and restate the Existing Credit
Agreement to provide a revolving credit facility in an aggregate amount of up to
$300 million;
WHEREAS, the Guarantors have agreed to unconditionally guarantee all the
obligations of the Borrowers hereunder; and
WHEREAS, the Lenders party hereto have agreed to make the requested amended
and restated revolving credit facility available to the Borrowers on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Adjusted EBITDA" means EBITDA, for the applicable period, less the
greater of (a) the sum of $.50 per square foot for all the Properties plus
the then market rate for management fees in connection with all the
Properties (unless previously deducted in
calculating EBITDA) or (b) the sum of actual Capital Expenditures incurred
plus actual management fees incurred (unless previously deducted in
calculating EBITDA) plus actual tenant improvements incurred plus actual
leasing commissions incurred, in each case during such period (it being
understood that expenditures associated with Properties under construction
or development do not constitute Capital Expenditures or tenant
improvements for the purpose of this definition).
"Adjusted Property EBITDA" means for the applicable Property, the
Property EBITDA for such Property for the prior four fiscal quarters less
the greater of (a) the sum of $.50 per square foot for such Property plus
the then market rate for management fees in connection with such Property
(unless previously deducted in calculating Property EBITDA for such
Property) or (b) the sum of actual Capital Expenditures incurred plus
actual management fees incurred (unless previously deducted in calculating
Property EBITDA for such Property) plus actual tenant improvements incurred
plus actual leasing commissions incurred, in each case during the prior
four fiscal quarters (it being understood that expenditures associated with
Properties under construction or development do not constitute Capital
Expenditures or tenant improvements for the purpose of this definition).
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
Applicable Percentage.
"Administrative Agent" means NationsBank, N.A. (or any successor
thereto) or any successor administrative agent appointed pursuant to
Section 10.9.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all
directors and officers of such Person), controlled by or under direct or
indirect common control with such Person. A Person shall be deemed to
control a corporation, partnership, limited liability company or real
estate investment trust if such Person possesses, directly or indirectly,
the power (i) to vote 10% or more of the securities having ordinary voting
power for the election of directors of such corporation, limited liability
company or real estate investment trust or to vote 10% or more of the
partnership interests of such partnership or (ii) to direct or cause
direction of the management and policies of such corporation or
partnership, whether through the ownership of voting securities, as
managing or general partner, by contract or otherwise.
"Agency Services Address" means NationsBank, N.A., 0000 Xxxxxxxxxx
Xxxxx, Xxxxx 000, XxXxxx, Xxxxxxxx 00000, Attn.: Xxxxxxx Xxxxxxxx-Xxxxxxx,
or such other address as may be identified by written notice from the
Administrative Agent to the Borrowers.
"Annualized Adjusted Property EBITDA" means, for the applicable
Property, the Property EBITDA for such Property for the most recent fiscal
quarter multiplied times a fraction equal to 365/the number of days such
Property was owned by a Credit Party during such fiscal quarter less the
greater of (a) the sum of $.50 per square foot for such Property plus the
then market rate for management fees in connection with such Property
(unless previously deducted in calculating Property EBITDA for such
Property) or (b) the sum of
2
actual Capital Expenditures incurred plus actual management fees incurred
(unless previously deducted in calculating Property EBITDA for such
Property) plus actual tenant improvements incurred plus actual leasing
commissions incurred, in each case during the prior four fiscal periods (it
being understood that expenditures associated with Properties under
construction or development do not constitute Capital Expenditures or
tenant improvements for the purpose of this definition).
"Applicable Percentage" means:
(a) if (i) BRT or BOP does not have an Unsecured Senior Debt Rating,
or (ii) if BRT or BOP has an Unsecured Debt Rating from S&P that is worse
than BBB-, or (iii) BRT or BOP has an Unsecured Debt Rating from Moody's
that is worse than Baa3, the appropriate applicable percentages
corresponding to the Leverage Ratio in effect as of the most recent
Calculation Date as shown below:
Pricing Level Leverage Applicable Percentage
Ratio for Eurodollar Loans
------------- --------- ----------------------
I < .20 to 1.0 1.15%
II > .20 to 1.0 but
< .30 to 1.0 1.25%
III > .30 to 1.0 1.375%
(b) if BRT or BOP has an Unsecured Senior Debt Rating from either S&P
or Moody's (or both) and neither (a)(ii) nor (a)(iii) above is applicable,
the appropriate applicable percentages corresponding to the Unsecured
Senior Debt Ratings in effect as of the most recent Calculation Date as
shown below:
Pricing Level Unsecured Senior Applicable Percentage
Debt Rating for Eurodollar Loans
------------- ---------------- ----------------------
I BBB or better from 1.00%
S&P, or Baa2 or
better from
Moody's or both if
rated by both
Moody's and S&P
II BBB- from S&P or 1.15%
Baa3 from Moody's
The Applicable Percentage for Revolving Loans shall be determined and
adjusted on the date (each a "Calculation Date") (i) if the Applicable
Percentage is determined pursuant to clause (a) above, five Business Days
after the date on which the Borrowers provide the officer's certificate in
accordance with the provisions of Section 7.1(d); provided that if the
Borrowers fail to provide the officer's certificate required by Section
7.1(d) on or before the date required by Section 7.1(d), the Applicable
Percentage for Revolving Loans from such date shall be based on Pricing
Level III in clause (a) above until such time that an appropriate officer's
certificate is provided
3
whereupon the Pricing Level shall be determined by the then current
Leverage Ratio or (ii) if the Applicable Percentage is determined pursuant
to clause (b) above, the date BRT or BOP obtains an Unsecured Senior Debt
Rating from S&P or Moody's or the date there is a change in the Unsecured
Senior Debt Rating of BRT or BOP, in each case after the Borrowers provide
written notice and evidence to the Administrative Agent regarding such
Unsecured Debt Rating. Each Applicable Percentage shall be effective from
one Calculation Date until the next Calculation Date. Any adjustment in
the Applicable Percentage shall be applicable only to new Revolving Loans
made (and to continuations and conversions of existing Revolving Loans).
The Applicable Percentage on the Closing Date shall be based on Pricing
Level III as set forth in clause (a) above until the first officer's
certificate is delivered pursuant to Section 7.1(d) or BRT or BOP has an
Unsecured Senior Debt Rating from S&P or Moody's.
The Borrowers shall promptly deliver to the Administrative Agent, at
the address set forth on Schedule 11.1 and at the Agency Services Address,
information regarding any change in the Unsecured Senior Debt Rating that
would change the existing Pricing Level as set forth above.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"BOP" means Brandywine Operating Partnership, L.P., a Delaware limited
partnership, together with any successors and permitted assigns.
"Borrowers" means BRT and BOP and "Borrower" means either one of them.
"Borrowing Base" means, at any date of determination, the sum of the
Borrowing Base Values for each parcel of Eligible Property.
"Borrowing Base Value" means the value of a parcel of Eligible
Property as determined in accordance with Schedule 1.1(a).
"Bridge Facility" means that certain $100 million promissory note
dated as of the Closing Date executed by the Borrowers in favor of
NationsBank, N.A.
"BRT" means Brandywine Realty Trust, a Maryland real estate investment
trust, together with any successors and permitted assigns.
"Business Day" means any day other than a Saturday, a Sunday, a legal
holiday or a day on which banking institutions are authorized or required
by law or other governmental action to close in McLean, Virginia,
Charlotte, North Carolina or New York, New York; provided that in the case
of Eurodollar Loans, such day is also a day on which dealings between banks
are carried on in U.S. dollar deposits in the London interbank market.
"Calculation Date" has the meaning set forth in the definition of
Applicable Percentage.
4
"Capital Expenditures" means all expenditures of the Borrowers and
their Subsidiaries which, in accordance with GAAP, would be classified as
Capital Expenditures, including, without limitation, Capital Leases.
"Capital Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which,
in accordance with GAAP, is or should be accounted for as a capital lease
on the balance sheet of that Person.
"Capitalization Rate" means, as of the Closing Date, 10.5%; however,
the Capitalization Rate shall be reviewed annually (but not more often than
annually) by the Lenders and shall be subject to adjustment by the Required
Lenders, in their sole discretion, based upon market conditions for
comparable property types; provided that the Capitalization Rate cannot be
adjusted by more than 1.25% annually.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) having maturities
of not more than twelve months from the date of acquisition, (b) U.S.
dollar denominated time and demand deposits and certificates of deposit of
(i) any Lender or any of its Affiliates, (ii) any domestic commercial bank
having capital and surplus in excess of $500,000,000 or (iii) any bank
whose short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with
maturities of not more than 270 days from the date of acquisition, (c)
commercial paper and variable or fixed rate notes issued by any Approved
Bank (or by the parent company thereof) or any variable rate notes issued
by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent
thereof) or better by S&P or P-1 (or the equivalent thereof) or better by
Moody's and maturing within six months of the date of acquisition,
(d) repurchase agreements with a bank or trust company (including any of
the Lenders) or securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the
United States of America in which a Credit Party shall have a perfected
first priority security interest (subject to no other Liens) and having, on
the date of purchase thereof, a fair market value of at least 100% of the
amount of the repurchase obligations and (e) Investments, classified in
accordance with GAAP as current assets, in money market investment programs
registered under the Investment Company Act of 1940, as amended, which are
administered by financial institutions having capital of at least
$500,000,000 and the portfolios of which are limited to Investments of the
character described in the foregoing subdivisions (a) through (d).
"Change of Control" means any of the following events:
(a) any "person" or "group" (within the meaning of Section 13(d) or
14(d) of the Exchange Act) has become, directly or indirectly, the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that a Person shall be deemed to have "beneficial ownership" of
all shares that any such Person has the right to acquire,
5
whether such right is exercisable immediately or only after the passage of
time), by way of merger, consolidation or otherwise, of 20% or more of the
voting power of BRT on a fully-diluted basis, after giving effect to the
conversion and exercise of all outstanding warrants, options and other
securities of BRT convertible into or exercisable for voting power of BRT
(whether or not such securities are then currently convertible or
exercisable); or
(b) (i) BRT fails to directly own at least 75% of the aggregate
ownership interests in BOP or (ii) BRT fails to own, directly or
indirectly, the same or greater percentage of voting power of each of the
Credit Parties (other than BOP) as it owns as of the Closing Date.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time. References
to sections of the Code shall be construed also to refer to any successor
sections.
"Commitments" means the commitment of each Lender with respect to the
Revolving Committed Amount.
"Consolidated GIAV" means, for any period with respect to the Credit
Parties and their Subsidiaries on a consolidated basis, the sum of: (a) for
all Properties owned by a Credit Party on the last day of a fiscal quarter
and for twelve months or more, the Adjusted Property EBITDA for each such
Property divided by the Capitalization Rate; plus (b) for all Properties
owned by a Credit Party on the last day of a fiscal quarter and for less
than twelve months, the Annualized Adjusted Property EBITDA for each such
Property divided by the Capitalization Rate plus (c) all unencumbered cash
and Cash Equivalents of the Credit Parties.
"Credit Documents" means this Credit Agreement, the Notes, and all
other related agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto.
"Credit Parties" means the Borrowers and the Guarantors and "Credit
Party" means any one of them.
"Debt Service Coverage Ratio" means the ratio of (a) the sum of (i)
for all Properties owned by a Credit Party on the last day of a fiscal
quarter and for twelve months or more, the Adjusted Property EBITDA for
each such Property plus (ii) for all Properties owned by a Credit Party on
the last day of a fiscal quarter and for less than twelve months, the
Annualized Adjusted Property EBITDA for each such Property to (b) the
Market Funded Debt Payments.
6
"Default" means any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, (a) has
failed to make a Loan or purchase a Participation Interest required
pursuant to the terms of this Credit Agreement (but only for so long as
such Loan is not made or such Participation Interest is not purchased), (b)
has failed to pay to the Administrative Agent or any Lender an amount owed
by such Lender pursuant to the terms of this Credit Agreement (but only for
so long as such amount has not been repaid) or (c) has been deemed
insolvent or has become subject to a bankruptcy or insolvency proceeding or
to a receiver, trustee or similar official.
"Dollars" and "$" means dollars in lawful currency of the United
States of America.
"EBITDA" means, for any period, with respect to the Credit Parties and
their Subsidiaries on a consolidated basis, the sum of (a) Net Income for
such period (excluding the effect of any extraordinary or other
non-recurring gains or losses (including any gain or loss from the sale of
property) or non-cash gains or losses outside of the ordinary course of
business) plus (b) an amount which, in the determination of Net Income for
such period, has been deducted for (i) Interest Expense for such period,
(ii) total federal, state, foreign or other income or franchise taxes for
such period, and (iii) all depreciation and amortization for such period,
all as determined in accordance with GAAP.
"Effective Date" means the date, as specified by the Administrative
Agent, on which the conditions set forth in Section 5.1 shall have been
fulfilled (or waived in the sole discretion of the Lenders) and on which
the initial Loans shall have been made and/or the initial Letters of Credit
shall have been issued.
"Eligible Assignee" means (a) any Lender or any Affiliate or
subsidiary of a Lender and (b) any other commercial bank, financial
institution, institutional lender or "accredited investor" (as defined in
Regulation D of the Securities and Exchange Commission) with total assets
of at least $25 billion, (ii) a long term unsecured debt rating of BBB+ or
better from S&P or its equivalent and (iii) an office in the United States.
"Eligible Property" means, as of any date of determination, (a) the
Existing Properties and (b) any other existing and operating office or
industrial Property either owned directly by a Credit Party or through a
joint venture if such Property satisfies the following criteria: (i) the
Property must not be subject to any Liens (other than Permitted Liens
described in subclauses (a)-(h) of the definition of Permitted Liens), (ii)
the Property must be located within the United States and in a SMSA with a
minimum population of 100,000, (iii) the Property must be connected to
public utilities (unless public utilities are not available), (iv) the
Property must have all improvements located on contiguous parcels of land;
provided that such parcels may be divided by private or dedicated streets,
(v) at least 20 days prior to such Property becoming an Eligible Property
the Lenders shall have received the following: (A) title information,
including evidence of unencumbered title, (B) Phase I environmental study
showing no environmental issues that would require remediation or further
investigation, in either case determined by the Required Lenders to
7
be material, (C) historical operating information (unless otherwise agreed
by the Administrative Agent), (D) rent roll, (E) ground lease, if any, (F)
market data if the Property is located in a new SMSA (unless otherwise
agreed by the Administrative Agent), (G) a structural report of the
Property or in the absence thereof a representation and warranty from the
Borrowers that to the best of their knowledge there exists no structural
defects and (H) copies of all material leases, including any leases that
evidence more than 50,000 square feet or any leases that constitute more
than 50% of a building and (vi) the Property has been approved by the
Required Lenders to be an Eligible Property.
"Environmental Claim" means any investigation, written notice,
violation, written demand, written allegation, action, suit, injunction,
judgment, order, consent decree, penalty, fine, lien, proceeding, or
written claim whether administrative, judicial or private in nature arising
(a) pursuant to, or in connection with, an actual or alleged violation of,
any Environmental Law, (b) in connection with any Hazardous Material, (c)
from any assessment, abatement, removal, remedial, corrective, or other
response action in connection with an Environmental Law or other order of a
Governmental Authority or (d) from any actual or alleged damage, injury,
threat, or harm to health, safety, natural resources, or the environment.
"Environmental Laws" means any current or future legal requirement of
any Governmental Authority pertaining to (a) the protection of health,
safety, and the indoor or outdoor environment, (b) the conservation,
management, or use of natural resources and wildlife, (c) the protection or
use of surface water and groundwater or (d) the management, manufacture,
possession, presence, use, generation, transportation, treatment, storage,
disposal, release, threatened release, abatement, removal, remediation or
handling of, or exposure to, any hazardous or toxic substance or material
or (e) pollution (including any release to land surface water and
groundwater) and includes, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended
by the Superfund Amendments and Reauthorization Act of 1986, 42 USC 9601 et
seq., Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendment of 1984, 42
USC 6901 et seq., Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of 1966, as
amended, 42 USC 7401 et seq., Toxic Substances Control Act of 1976, 15 USC
2601 et seq., Hazardous Materials Transportation Act, 49 USC App. 1801 et
seq., Occupational Safety and Health Act of 1970, as amended, 29 USC 651 et
seq., Oil Pollution Act of 1990, 33 USC 2701 et seq., Emergency Planning
and Community Right-to-Know Act of 1986, 42 USC 11001 et seq., National
Environmental Policy Act of 1969, 42 USC 4321 et seq., Safe Drinking Water
Act of 1974, as amended, 42 USC 300(f) et seq., any analogous implementing
or successor law, and any amendment, rule, regulation, order, or directive
issued thereunder.
"Equity Issuance" means any issuance by a Credit Party to any Person
(other than another Credit Party) of shares of its capital stock, common
shares of beneficial interest or other equity interests, including pursuant
to the exercise of options or warrants or pursuant to the conversion of any
debt securities to equity; provided that the definition of Equity Issuance
as used herein shall not include issuances of equity to employees of a
Credit Party
8
to the extent such issuances do not exceed $1,000,000 in any one instance
or $5,000,000, in the aggregate, during the term of this Credit Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity, whether or not incorporated, which
is under common control with a Borrower or any of its Subsidiaries within
the meaning of Section 4001(a)(14) of ERISA, or is a member of a group
which includes a Borrower and which is treated as a single employer under
Sections 414(b) or (c) of the Code.
"ERISA Event" means (i) with respect to any Plan, the occurrence of a
Reportable Event or the substantial cessation of operations (within the
meaning of Section 4062(e) of ERISA); (ii) the withdrawal of a Borrower,
any Subsidiary of a Borrower or any ERISA Affiliate from a Multiple
Employer Plan during a plan year in which it was a substantial employer (as
such term is defined in Section 4001(a)(2) of ERISA), or the termination of
a Multiple Employer Plan; (iii) the distribution of a notice of intent to
terminate or the actual termination of a Plan pursuant to Section
4041(a)(2) or 4041A of ERISA; (iv) the institution of proceedings to
terminate or the actual termination of a Plan by the PBGC under Section
4042 of ERISA; (v) any event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan; (vi) the complete or partial withdrawal of
a Borrower, any Subsidiary of a Borrower or any ERISA Affiliate from a
Multiemployer Plan; (vii) the conditions for imposition of a lien under
Section 302(f) of ERISA exist with respect to any Plan; or (viii) the
adoption of an amendment to any Plan requiring the provision of security to
such Plan pursuant to Section 307 of ERISA.
"Eurodollar Loan" means a Loan bearing interest based at a rate
determined by reference to the Adjusted Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
Loan comprising part of the same borrowing (including conversions,
extensions and renewals), a per annum interest rate determined pursuant to
the following formula:
Eurodollar Rate = London Interbank Offered Rate
----------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means, for any day, that percentage
(expressed as a decimal) which is in effect from time to time under
Regulation D of the Board of Governors of the Federal Reserve System (or
any successor), as such regulation may be amended from time to time, or any
successor regulation, as the maximum reserve requirement (including,
without limitation, any basic, supplemental, emergency, special, or
marginal reserves) applicable with respect to Eurodollar liabilities as
that term is defined in Regulation D (or against any other category of
liabilities that includes deposits by reference
9
to which the interest rate of Eurodollar Loans is determined) with
respect to member banks of the Federal Reserve System, whether or not
any Lender has any Eurodollar liabilities subject to such reserve
requirement at that time. Eurodollar Loans shall be deemed to constitute
Eurodollar liabilities and as such shall be deemed subject to reserve
requirements without benefits of credits for proration, exceptions or
offsets that may be available from time to time to a Lender. The
Adjusted Eurodollar Rate shall be adjusted automatically on and as of
the effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" means any of the events or circumstances described
in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
modified, succeeded or replaced from time to time, and the rules and
regulations promulgated thereunder.
"Existing Letters of Credit" means the letters of credit described on
Schedule 2.2(c).
"Existing Properties" means those Properties set forth on Schedule
1.1(c).
"Extension of Credit" means, as to any Lender, the making of a Loan by
such Lender (or a participation therein by a Lender) or the issuance of, or
participation in, a Letter of Credit by such Lender.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day and (b) if no such
rate is so published on such next preceding Business Day, the Federal Funds
Rate for such day shall be the average rate quoted to the Administrative
Agent on such day on such transactions as determined by the Administrative
Agent.
"Fed Funds Loan" means a Loan bearing interest based at a rate
determined by reference to the Federal Funds Rate.
"Fee Letter" means that certain letter agreement, dated as of December
12, 1997, between the Administrative Agent and BRT, as amended, modified,
supplemented or replaced from time to time.
"Fixed Charge Coverage Ratio" means for any period the ratio of (a)
Adjusted EBITDA for such period to (b) the sum of Interest Expense plus
Scheduled Funded Debt Payments plus all dividends on preferred stock plus
Letter of Credit Fees payable pursuant
10
to Section 3.4(b)(i) plus non-revenue producing Capital Expenditures (other
than Capital Expenditures for construction and development) for such
period.
"Funded Debt" means, without duplication, the sum of (a) all
Indebtedness of the Credit Parties and their Subsidiaries for borrowed
money, (b) all purchase money Indebtedness of the Credit Parties and their
Subsidiaries, (c) the principal portion of all obligations of the Credit
Parties and their Subsidiaries under Capital Leases, (d) all obligations,
contingent or otherwise, relative to the face amount of all letters of
credit (other than letters of credit supporting trade payables in the
ordinary course of business), whether or not drawn, and banker's
acceptances issued for the account of the Credit Parties or any of their
Subsidiaries (it being understood that, to the extent an undrawn letter of
credit supports another obligation consisting of Indebtedness, in
calculating aggregated Funded Debt only such other obligation shall be
included), (e) all Guaranty Obligations of the Credit Parties and their
Subsidiaries with respect to Funded Debt of another Person, (f) all Funded
Debt of another entity secured by a Lien on any property of the Credit
Parties and their Subsidiaries whether or not such Funded Debt has been
assumed by the Credit Parties or any of their Subsidiaries, (g) all Funded
Debt of any partnership or unincorporated joint venture to the extent the
Credit Parties or one of their Subsidiaries is legally obligated or has a
reasonable expectation of being liable with respect thereto, net of any
assets of such partnership or joint venture, (h) the principal balance
outstanding under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product of
the Credit Parties or any of their Subsidiaries where such transaction is
considered borrowed money indebtedness for tax purposes but is classified
as an operating lease in accordance with GAAP, (i) all obligations of the
Credit Parties and their Subsidiaries in respect of interest rate
protection agreements, foreign currency exchange agreements or other
interest or exchange rate or commodity price hedging agreements and (j) all
take out loan commitments to the extent such take out commitment is not
supported by a financial commitment from a third party containing standard
terms and conditions.
"Funds From Operations", when used with respect to any Person, shall
have the meaning given to such term in, and shall be calculated in
accordance with, standards promulgated by the National Association of Real
Estate Investment Trusts in effect from time to time.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to Section 1.3.
"Governmental Authority" means any Federal, state, local or provincial
court or governmental agency, authority, instrumentality or regulatory
body.
"Gross Implied Asset Value" means (a) for all Properties owned by a
Credit Party on the last day of a fiscal quarter and for twelve months or
more, the Adjusted Property EBITDA for each such Property divided by the
Capitalization Rate or (b) for all Properties owned by a Credit Party on
the last day of a fiscal quarter and for less than twelve months, the
Annualized Adjusted Property EBITDA for each such Property divided by the
Capitalization Rate.
11
"Guarantors" means the Material Subsidiaries of the Borrowers, as set
forth on the signature pages attached hereto, together with each other
Material Subsidiary of the Borrowers that executes a Joinder Agreement.
"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations (other than endorsements in the ordinary
course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person
in any manner, whether direct or indirect, and including without limitation
any obligation, whether or not contingent, (a) to purchase any such
Indebtedness or other obligation or any property constituting security
therefor, (b) to advance or provide funds or other support for the payment
or purchase of such indebtedness or obligation or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including, without limitation, maintenance agreements, comfort letters,
take or pay arrangements, put agreements or similar agreements or
arrangements) for the benefit of the holder of Indebtedness of such other
Person, (c) to lease or purchase property, securities or services primarily
for the purpose of assuring the owner of such Indebtedness or (d) to
otherwise assure or hold harmless the owner of such Indebtedness or
obligation against loss in respect thereof. The amount of any Guaranty
Obligation hereunder shall (subject to any limitations set forth therein)
be deemed to be an amount equal to the outstanding principal amount (or
maximum principal amount, if larger) of the Indebtedness in respect of
which such Guaranty Obligation is made.
"Hazardous Materials" means any substance, material or waste defined
or regulated in or under any Environmental Laws.
"Incentive Stock Plan" means the BRT 1997 Long-Term Incentive Plan, as
amended from time to time, and any other equity incentive plan hereafter
established by BRT pursuant to which awards of equity interests in BRT may
be made to employees of BRT or a Subsidiary.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, or
upon which interest payments are customarily made (c) all obligations of
such Person under conditional sale or other title retention agreements
relating to property purchased by such Person to the extent of the value of
such property (other than customary reservations or retentions of title
under agreements with suppliers entered into in the ordinary course of
business), (d) all obligations, other than intercompany items, of such
Person issued or assumed as the deferred purchase price of property or
services purchased by such Person which would appear as liabilities on a
balance sheet of such Person, (e) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on, or payable out of the proceeds
of production from, property owned or acquired by such Person, whether or
not the obligations secured thereby have been assumed, (f) all Guaranty
Obligations of such Person, (g) the principal portion of all obligations of
such Person under (i) Capital Leases and (ii) any synthetic lease, tax
retention operating lease,
12
off-balance sheet loan or similar off-balance sheet financing product of
such Person where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease in
accordance with GAAP, (h) all obligations of such Person in respect of
interest rate protection agreements, foreign currency exchange agreements,
or other interest or exchange rate or commodity price hedging agreements,
(i) the maximum amount of all performance and standby letters of credit
issued or bankers' acceptances facilities created for the account of such
Person and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (j) all preferred stock issued by such Person and required
by the terms thereof to be redeemed, or for which mandatory sinking fund
payments are due, by a fixed date, and (k) all obligations evidenced by
take out commitments. Subject to the terms of Section 1.4 hereof, the
Indebtedness of any Person shall include the Indebtedness of any
partnership or unincorporated joint venture in which such Person is legally
obligated or has a reasonable expectation of being liable with respect
thereto.
"Initial Revolving Loan Maturity Date" means January 5, 2001.
"Interest Coverage Ratio" means the ratio of (a) Adjusted EBITDA to
(b) Interest Expense.
"Interest Expense" means, for any period, with respect to the Credit
Parties and their Subsidiaries on a consolidated basis, all net interest
expense, whether paid, accrued or capitalized, including the interest
component under Capital Leases, as determined in accordance with GAAP.
"Interest Payment Date" means (a) as to Prime Rate Loans, the last
Business Day of each month and on the Revolving Loan Maturity Date, (b) as
to Fed Funds Loans and Eurodollar Loans on the last day of the applicable
Interest Period and on the Revolving Loan Maturity Date.
"Interest Period" means, (a) as to Eurodollar Loans, a period of one,
two, three or six months' duration and (b) as to Fed Funds Loans, a period
of one to seven days, in each case, as the Borrowers may elect, commencing,
in each case, on the date of the borrowing (including continuations and
conversions thereof); provided, however, (a) if any Interest Period would
end on a day which is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day (except that where the next
succeeding Business Day falls in the next succeeding calendar month, then
on the next preceding Business Day), (b) no Interest Period shall extend
beyond the Revolving Loan Maturity Date, (c) with respect to Eurodollar
Loans, where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the Interest
Period is to end, such Interest Period shall end on the last Business Day
of such calendar month, and (d) no Interest Period shall extend beyond the
Initial Revolving Loan Maturity Date unless the Revolving Loan Maturity
Date has been extended pursuant to Section 3.5(b).
13
"Investment" in any Person means (a) the acquisition (whether for
cash, property, services, assumption of Indebtedness, securities or
otherwise) of assets, shares of capital stock, bonds, notes, debentures,
partnership, joint ventures or other ownership interests or other
securities of such other Person or (b) any deposit with, or advance, loan
or other extension of credit to, such Person (other than deposits made in
connection with the purchase of equipment or other assets in the ordinary
course of business) or (c) any other capital contribution to or investment
in such Person, including, without limitation, any Guaranty Obligation
(including any support for a letter of credit issued on behalf of such
Person) incurred for the benefit of such Person.
"Issuing Lender" means NationsBank, N.A., any successor Administrative
Agent or any other Lender designated by the Administrative Agent.
"Issuing Lender Fees" has the meaning set forth in Section 3.4(b)(ii).
"Joinder Agreement" means a Joinder Agreement substantially in the
form of Exhibit 7.12.
"Lender" means any of the Persons identified as a "Lender" on the
signature pages hereto, and any Person which may become a Lender by way of
assignment in accordance with the terms hereof, together with their
successors and permitted assigns.
"Letter of Credit" means a letter of credit issued for the account of
a Borrower by the Issuing Lender pursuant to Section 2.2 or any Existing
Letter of Credit, as such letter of credit may be amended, modified,
extended, renewed or replaced.
"Letter of Credit Fees" has the meaning set forth in Section
3.4(b)(i).
"Leverage Ratio" means the ratio of (a) Funded Debt to (b)
Consolidated GIAV.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind, including, without limitation,
any agreement to give any of the foregoing, any conditional sale or other
title retention agreement, and any lease in the nature thereof.
"Loan" or "Loans" means the Revolving Loans (or a portion of any
Revolving Loan), individually or collectively, as appropriate.
"LOC Documents" means, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in application
or applicable only to such Letter of Credit) governing or providing for (a)
the rights and obligations of the parties concerned or at risk or (b) any
collateral security for such obligations.
14
"LOC Obligations" means, at any time, the sum of (a) the maximum
amount which is, or at any time thereafter may become, available to be
drawn under Letters of Credit then outstanding, assuming compliance with
all requirements for drawings referred to in such Letters of Credit plus
(b) the aggregate amount of all drawings under Letters of Credit honored by
an Issuing Lender but not theretofore reimbursed.
"LOC Participants" means the Lenders.
"London Interbank Offered Rate" means, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) appearing on Telerate Page 3750 (or
any successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is specified on
Telerate Page 3750, the applicable rate shall be the arithmetic mean of all
such rates. If for any reason such rate is not available, the term "London
Interbank Offered Rate" shall mean, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) appearing on Reuters Screen LIBO Page
as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen
LIBO Page, the applicable rate shall be the arithmetic mean of all such
rates.
"Mandatory Borrowing" has the meaning set forth in Section 2.2(e).
"Market Funded Debt Payments" means the scheduled debt payments that
would have been due on all Funded Debt of the Credit Parties during the
prior four fiscal quarters assuming a principal mortgage amortization of 25
years and assuming the Market Interest Rate as in effect on the date that
the Market Funded Debt Payments are calculated.
"Market Interest Rate" means an interest rate equal to the greater of
(a) the prior 30 day average of the most recent seven year U.S. Treasury
Note plus 2.00% per annum or (b) 8.75% per annum.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, condition (financial or otherwise) or
prospects of a Credit Party or any of their Subsidiaries, (b) the ability
of a Credit Party to perform its respective obligations under this Credit
Agreement or any of the other Credit Documents, or (c) the validity or
enforceability of this Credit Agreement, any of the other Credit Documents,
or the rights and remedies of the Lenders hereunder or thereunder taken as
a whole.
"Material Subsidiary" means a Subsidiary of a Credit Party in which
such Credit Party owns, directly or indirectly, more than 65% of the capital
stock, partnership interests or other equity interests.
15
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating
securities.
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan (other than a Multiemployer
Plan) in which a Credit Party or any ERISA Affiliate and at least one
employer other than a Credit Party or any ERISA Affiliate are contributing
sponsors.
"Net Cash Proceeds" means the gross cash proceeds received from an
Equity Issuance net of actual transaction costs payable to third parties.
"Net Income" means, for any period, the net income after taxes for
such period of Credit Parties and their Subsidiaries on a consolidated
basis, as determined in accordance with GAAP.
"Net Worth" means, as of any date, the net worth of Credit Parties and
their Subsidiaries on a consolidated basis, as determined in accordance
with GAAP.
"Non-Excluded Taxes" has the meaning set forth in Section 3.13.
"Note" or "Notes" means the Revolving Loan Notes, individually or
collectively, as appropriate.
"Notice of Borrowing" means a request by the Borrowers for a Revolving
Loan, in the form of Exhibit 2.1(b).
"Notice of Continuation/Conversion" means a request by the Borrowers
to continue an existing Eurodollar Loan or Fed Funds Loan to a new Interest
Period or to convert a Eurodollar Loan to a Fed Funds Loans or a Prime Rate
Loan or to convert a Fed Funds Loan to a Prime Rate Loan or a Eurodollar
Loan or to convert a Prime Rate Loan to a Eurodollar Loan or a Fed Funds
Loan , in the form of Exhibit 2.1(e).
"Obligations" means, without duplication, all of the obligations of
the Credit Parties to the Lenders and the Administrative Agent, whenever
arising, under this Credit Agreement, the Notes, or any of the other Credit
Documents to which a Credit Party is a party.
"Participation Interest" means the Extension of Credit by a Lender by
way of a purchase of a participation in any Loans as provided in Section
3.8 or in any Letters of Credit or LOC Obligations as provided in Section
2.2.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
16
"Permitted Investments" means Investments which are (a) cash or Cash
Equivalents, (b) accounts receivable created, acquired or made in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms, (c) Investments by one Credit Party in another
Credit Party, (d) the acquisition of new Properties; provided that the
Credit Parties may not invest in undeveloped land unless it is adjacent to
or continguous with other assets being acquired or assets already owned or
such land is part of a construction project approved by the Required
Lenders, has all necessary local permits and approvals and construction
will commence within six months of acquisition, (e) xxxxxxx money and
similar deposits in respect of Properties made in the ordinary course of
business, (f) Investments in Subsidiaries which are not Credit Parties and
Investments in joint ventures (whether or not Subsidiaries) not to exceed,
in the aggregate at any one time, 15% of Total Assets, (g) Investments not
otherwise described in or covered by the other subclauses of this
definition (including, without limitation, Investments in Persons that are
not Subsidiaries or joint ventures (whether or not Subsidiaries), loans to
officers, directors and employees and repurchases of its capital stock or
other ownership interests (including options, warrants and stock
appreciation rights) by a Borrower or any Subsidiary) provided that (i)
such Investments do not exceed, in the aggregate at any one time, 10% of
Total Assets and (ii) such Investments, together with the Investments
referred to in the previous subclause (f), do not exceed (in the aggregate
at any one time) 20% of Total Assets.
"Permitted Liens" means (a) Liens securing Obligations, (b) Liens for
taxes not yet due or Liens for taxes being contested in good faith by
appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which the property
subject to any such Lien is not yet subject to foreclosure, sale or loss on
account thereof), (c) Liens in respect of property imposed by law arising
in the ordinary course of business such as materialmens', mechanics',
warehousemens', carriers', landlords' and other nonconsensual statutory
Liens which are not yet due and payable or which are being contested in
good faith by appropriate proceedings for which adequate reserves
determined in accordance with GAAP have been established (and as to which
the property subject to any such Lien is not yet subject to foreclosure,
sale or loss on account thereof); (d) Liens arising from good faith
deposits in connection with or to secure performance of tenders, bids,
leases, government contracts, performance and return-of-money bonds and
other similar obligations incurred in the ordinary course of business
(other than obligations in respect of the payment of borrowed money), (e)
Liens arising from good faith deposits in connection with or to secure
performance of statutory obligations and surety and appeal bonds, (f)
easements, rights-of-way, restrictions (including zoning restrictions),
matters of plat, minor defects or irregularities in title and other similar
charges or encumbrances not, in any material respect, impairing the use of
the encumbered property for its intended purposes, (g) judgment Liens that
would not constitute an Event of Default, (h) Liens arising by virtue of
any statutory or common law provision relating to bankers' liens, rights of
setoff or similar rights as to deposit accounts or other funds maintained
with a creditor depository institution, (i) Liens in connection with
Indebtedness permitted by Section 8.1(d); provided that if such Lien is on
a Property that was previously an Eligible Property, the Borrowers shall
give the Administrative Agent prior written notice of the creation of such
Lien and shall deliver a certificate as to compliance with all of the terms
of the Credit Agreement, including but not limited to, the financial
covenants set forth in Section 7.2,
17
subsequent to the creation of such Lien, and (j) Liens existing on the date
hereof and identified on Schedule 8.2; provided that no such Lien shall
extend to any property other than the property subject thereto on the
Closing Date.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other
enterprise (whether or not incorporated), or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3) of
ERISA) which is covered by ERISA and with respect to which a Borrower or
any ERISA Affiliate is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" within the
meaning of Section 3(5) of ERISA.
"Prime Rate" means the per annum rate of interest established from
time to time by the Administrative Agent at its principal office in
Charlotte, North Carolina (or such other principal office of the
Administrative Agent as communicated in writing to the Borrowers and the
Lenders) as its Prime Rate. Any change in the interest rate resulting from
a change in the Prime Rate shall become effective as of 12:01 a.m. of the
Business Day on which each change in the Prime Rate is announced by the
Administrative Agent. The Prime Rate is a reference rate used by the
Administrative Agent in determining interest rates on certain loans and is
not intended to be the lowest rate of interest charged on any extension of
credit to any debtor.
"Prime Rate Loan" means any Loan bearing interest at a rate determined
by reference to the Prime Rate.
"Properties" means all real properties owned by the Credit Parties and
their Subsidiaries whether directly or through a joint venture investment.
"Property EBITDA" means, with respect to any Property for the
applicable period, the sum of (a) Net Income of a Credit Party directly
attributable to such Property (excluding the effect of any extraordinary or
other non-recurring gains or losses or non-cash gains or losses outside the
ordinary course of business) plus (b) an amount which in determination of
Net Income of a Credit Party directly attributable to such Property for
such period has been deducted for (i) Interest Expense with respect to such
Property for such period, (ii) total cash payments made with respect to
federal, state, foreign or other income or franchise taxes with respect to
such Property for such period and (iii) all depreciation and amortization
with respect to such Property for such period, all as determined in
accordance with GAAP.
"Regulation D, G, U, or X" means Regulation D, G, U or X,
respectively, of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor to all or a portion thereof.
"REIT" means a real estate investment trust as defined in Sections
856-860 of the Code.
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"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the notice
requirement has been waived by regulation.
"Required Lenders" means the Administrative Agent together with the
Lenders whose aggregate Credit Exposure (as hereinafter defined)
constitutes at least 66 2/3% of the Credit Exposure of all Lenders at such
time; provided, however, that if any Lender shall be a Defaulting Lender at
such time then there shall be excluded from the determination of Required
Lenders the aggregate principal amount of Credit Exposure of such Lender at
such time. For purposes of the preceding sentence, the term "Credit
Exposure" as applied to each Lender shall mean (a) at any time prior to the
termination of the Commitments, the sum of the Revolving Loan Commitment
Percentage of such Lender multiplied by the Revolving Committed Amount and
(b) at any time after the termination of the Commitments, the sum of (i)
the principal balance of the outstanding Loans of such Lender plus (ii)
such Lender's Participation Interests in the face amount of the outstanding
Letters of Credit.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation
or final, non-appealable determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or to which any of its material property is subject.
"Revolving Committed Amount" means THREE HUNDRED MILLION DOLLARS
($300,000,000).
"Revolving Loan Commitment Percentage" means, for each Lender, the
percentage identified as its Revolving Loan Commitment Percentage on
Schedule 1.1(b), as such percentage may be modified in connection with any
assignment made in accordance with the provisions of Section 11.3.
"Revolving Loan Maturity Date" means the Initial Revolving Loan
Maturity Date or, if extended by the Borrowers pursuant to Section 3.5(b),
January 5, 2002.
"Revolving Loans" means the Revolving Loans made to the Borrowers
pursuant to Section 2.1.
"Revolving Note" or "Revolving Notes" means the promissory notes of
the Borrowers in favor of each of the Lenders evidencing the Revolving
Loans provided pursuant to Section 2.1, individually or collectively, as
appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time and as
evidenced in the form of Exhibit 2.1(g).
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor or assignee of the business of such division
in the business of rating securities.
19
"Scheduled Funded Debt Payments" means, as of the date of
determination, for the Credit Parties and their Subsidiaries on a
consolidated basis, the sum of all scheduled payments of principal and any
required prepayments on Funded Debt (other than balloon payments), for the
applicable period, ending on the date of determination (including the
principal component of payments due on Capital Leases during the applicable
period ending on the date of determination) plus any letter of credit fees.
"Securities Act" means the Securities Act of 1933, as amended,
modified, succeeded or replaced from time to time, and the rules and
regulations promulgated thereunder.
"Single Employer Plan" means any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
"SMSA" means Standard Metropolitan Statistical Area as defined by the
United States Census Bureau.
"Solvent" means, with respect to any Person as of a particular date,
that on such date (a) such Person is able to pay its debts and other
liabilities, contingent obligations and other commitments as they mature in
the normal course of business, (b) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature in their ordinary
course, (c) such Person is not engaged in a business or a transaction, and
is not about to engage in a business or a transaction, for which such
Person's assets would constitute unreasonably small capital after giving
due consideration to the prevailing practice in the industry in which such
Person is engaged or is to engage, (d) the fair value of the assets of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person and (e) the present fair
saleable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured. In computing the amount of
contingent liabilities at any time, it is intended that such liabilities
will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Subsidiary" means, as to any Person, (a) any corporation more than
50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time, any class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person
directly or indirectly through Subsidiaries, and (b) any partnership,
association, joint venture, limited liability company, trust or other
entity in which such Person directly or indirectly through Subsidiaries has
more than a 50% equity interest at any time.
"Termination Event" means (a) with respect to any Single Employer
Plan, the occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (b) the
withdrawal of any Credit Party or any of its Subsidiaries or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in
20
which it was a substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan; (c)
the distribution of a notice of intent to terminate or the actual
termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (d)
the institution of proceedings to terminate or the actual termination of a
Plan by the PBGC under Section 4042 of ERISA; (e) any event or condition
which might reasonably constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any
Plan; or (f) the complete or partial withdrawal of any Credit Party or any
of its Subsidiaries or any ERISA Affiliate from a Multiemployer Plan.
"Total Assets" means all assets of the Credit Parties and their
Subsidiaries on a consolidated basis, as determined in accordance with
GAAP.
"Unsecured Funded Debt" means all Funded Debt that was incurred, and
continues to be outstanding, without granting a Lien to the creditor
holding such Funded Debt.
"Unsecured Properties" means all Properties that are not subject to a
Lien other than nonconsensual Permitted Liens.
"Unsecured Senior Debt Rating" means a debt rating provided by S&P or
Xxxxx'x with respect to the unsecured senior long term debt of BRT or BOP.
"Unused Commitment" means, for any period, the amount by which (a) the
then applicable aggregate Revolving Committed Amount exceeds (b) the daily
average sum for such period of the outstanding aggregate principal amount
of all Revolving Loans plus the aggregate amount of LOC Obligations
outstanding.
"Unused Fees" means the fees payable to the Lenders pursuant to
Section 3.4(a).
1.2 Computation of Time Periods and Other Definition Provisions.
For purposes of computation of periods of time hereunder, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding." References in this Credit Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Credit Agreement unless otherwise specifically provided.
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All financial statements delivered to the Lenders hereunder shall be
accompanied by a statement from the Borrowers that GAAP has not changed since
the most recent financial statements delivered by the Borrowers to the Lenders
or if GAAP has changed describing such changes in detail and explaining how such
changes affect the financial statements. All calculations made for the purposes
of determining compliance with this Credit Agreement shall (except as
21
otherwise expressly provided herein) be made by application of GAAP applied on a
basis consistent with the most recent annual or quarterly financial statements
delivered pursuant to Section 6.1 (or, prior to the delivery of the first
financial statements pursuant to Section 6.1, consistent with the financial
statements described in Section 4.1(d)); provided, however, if (a) the Borrowers
shall object to determining such compliance on such basis at the time of
delivery of such financial statements due to any change in GAAP or the rules
promulgated with respect thereto or (b) the Administrative Agent or the Required
Lenders shall so object in writing within 60 days after delivery of such
financial statements (or after the Lenders have been informed of the change in
GAAP affecting such financial statements, if later), then such calculations
shall be made on a basis consistent with the most recent financial statements
delivered by the Borrowers to the Lenders as to which no such objection shall
have been made.
1.4 Joint Venture Investments.
With respect to any ownership of a Property by a Credit Party through a
joint venture (a) EBITDA, Adjusted EBITDA, Adjusted Property EBITDA and
Annualized Adjusted Property EBITDA shall be calculated in accordance with such
Credit Party's ownership interest in the net cash flow of such joint venture and
(b) Indebtedness and Funded Debt shall be calculated as follows: (i) if the
Indebtedness of such joint venture is recourse to such Credit Party, then the
amount of such Indebtedness or Funded Debt that is recourse to such Credit
Party, and (ii) if the Indebtedness of such joint venture is not recourse to
such Credit Party, then such Credit Party's pro rata interest in such
Indebtedness or Funded Debt.
SECTION 2
CREDIT FACILITY
2.1 Revolving Loans.
(a) Revolving Loan Commitment. Subject to the terms and conditions
set forth herein, each Lender severally agrees to make revolving loans
(each a "Revolving Loan" and collectively the "Revolving Loans") to the
Borrowers, in Dollars, at any time and from time to time, during the period
from and including the Effective Date to but not including the Revolving
Loan Maturity Date or such earlier date if the Revolving Committed Amount
has been terminated as provided herein; provided, however, that (i) the sum
of the aggregate principal amount of Revolving Loans outstanding plus the
aggregate amount of LOC Obligations outstanding shall not exceed the lesser
of (A) the Revolving Committed Amount and (B) the Borrowing Base, (ii) with
respect to each individual Lender, the Lender's pro rata share of
outstanding Revolving Loans plus such Lender's pro rata share of
outstanding LOC obligations shall not exceed such Lender's Revolving Loan
Commitment Percentage of the Revolving Committed Amount, and (iii) the
aggregate principal amount of Revolving Loans advanced for construction and
development of Properties that are not preleased in excess of 85% shall not
exceed at any one time (A) for such Properties that are less than 50%
preleased, $20,000,000 and (B) for all such Properties, $100,000,000.
Subject to the terms of this Credit Agreement (including Section 3.3), the
Borrowers may
22
borrow, repay and reborrow Revolving Loans. The Administrative Agent shall
keep a record of the purpose for which each of the Loans was advanced (and
of repayments applied thereto), which record shall be conclusive absent
prima facie error.
(b) Method of Borrowing for Revolving Loans. By no later than 11:00
a.m. (i) one Business Day prior to the date of the requested borrowing of
Revolving Loans that will be Prime Rate Loans or Fed Funds Loans or (ii)
three Business Days prior to the date of the requested borrowing of
Revolving Loans that will be Eurodollar Loans, the Borrowers shall submit a
written Notice of Borrowing in the form of Exhibit 2.1(b) to the
Administrative Agent setting forth (A) the amount requested, (B) whether
such Revolving Loans shall be Prime Rate Loans, Fed Funds Loan or
Eurodollar Loans, (C) with respect to Revolving Loans that will be
Eurodollar Loans or Fed Funds Loan, the Interest Period applicable thereto;
provided, however, that prior to June 30, 1998, or such earlier date as
agreed to by the Administrative Agent, the Borrowers may not, without the
consent of the Administrative Agent, request any Interest Period for
Eurodollar Loans other than a one-month Interest Period, (D) the purpose of
the proceeds of the Revolving Loans and (E) certification that the
Borrowers have complied in all respects with Section 5.2.
(c) Funding of Revolving Loans. Upon receipt of a Notice of
Borrowing, the Administrative Agent shall promptly inform the Lenders as to
the terms thereof. Each Lender shall make its Revolving Loan Commitment
Percentage of the requested Revolving Loans available to the Administrative
Agent by 1:00 p.m. on the date specified in the Notice of Borrowing by
deposit, in Dollars, of immediately available funds at the offices of the
Administrative Agent at its principal office in Charlotte, North Carolina
or at such other address as the Administrative Agent may designate in
writing. The amount of the requested Revolving Loans will then be made
available to the Borrowers by the Administrative Agent by crediting the
account of the Borrowers on the books of such office of the Administrative
Agent, to the extent the amount of such Revolving Loans are made available
to the Administrative Agent.
No Lender shall be responsible for the failure or delay by any other
Lender in its obligation to make Revolving Loans hereunder; provided,
however, that the failure of any Lender to fulfill its obligations
hereunder shall not relieve any other Lender of its obligations hereunder.
Unless the Administrative Agent shall have been notified by any Lender
prior to the date of any such Revolving Loan that such Lender does not
intend to make available to the Administrative Agent its portion of the
Revolving Loans to be made on such date, the Administrative Agent may
assume that such Lender has made such amount available to the
Administrative Agent on the date of such Revolving Loans, and the
Administrative Agent in reliance upon such assumption, may (in its sole
discretion but without any obligation to do so) make available to the
Borrowers a corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent, the Administrative Agent
shall be able to recover such corresponding amount from such Lender. If
such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent will
promptly notify the Borrowers, and the Borrowers shall immediately pay such
corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover from the
23
Lender or the Borrowers, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was
made available by the Administrative Agent to the Borrowers to the date
such corresponding amount is recovered by the Administrative Agent at a per
annum rate equal to (i) from the Borrowers at the applicable rate for such
Revolving Loan pursuant to the Notice of Borrowing and (ii) from a Lender
at the Federal Funds Rate.
(d) Reduction or Termination of Revolving Committed Amount. Upon at
least three Business Days' notice, the Borrowers shall have the right to
permanently terminate or reduce the aggregate unused amount of the
Revolving Committed Amount at any time or from time to time; provided that
(i) each partial reduction shall be in an aggregate amount at least equal
to $5,000,000 and in integral multiples of $1,000,000 above such amount and
(ii) no reduction shall be made which would reduce the Revolving Committed
Amount to an amount less than the aggregate amount of outstanding Revolving
Loans plus the aggregate amount of outstanding LOC Obligations. Any
reduction in (or termination of) the Revolving Committed Amount shall be
permanent and may not be reinstated. The Administrative Agent shall
immediately notify the Lenders of any reduction in the Revolving Committed
Amount.
(e) Continuations and Conversions. The Borrowers shall have the
option, on any Business Day, to continue existing Eurodollar Loans or Fed
Funds Loans for a subsequent Interest Period, to convert Prime Rate Loans
or Fed Funds Loans into Eurodollar Loans, to convert Fed Funds Loans into
Prime Rate Loans or Eurodollar Loans or to convert Eurodollar Loans or Fed
Funds Loans into Prime Rate Loans; provided, however, that (i) each such
continuation or conversion must be requested by the Borrowers pursuant to a
written Notice of Continuation/Conversion, in the form of Exhibit 2.1(e),
in compliance with the terms set forth below, (ii) except as provided in
Section 3.11, Eurodollar Loans and Fed Funds Loans may only be continued or
converted on the last day of the Interest Period applicable thereto, (iii)
Eurodollar Loans may not be continued nor may Prime Rate Loans or Fed Funds
Loans be converted into Eurodollar Loans during the existence and
continuation of a Default or Event of Default and (iv) any request to
continue a Eurodollar Loan that fails to comply with the terms hereof or
any failure to request a continuation of a Eurodollar Loan at the end of an
Interest Period shall result in a conversion of such Eurodollar Loan to a
Prime Rate Loan on the last day of the applicable Interest Period. Each
continuation or conversion must be requested by the Borrowers no later than
11:00 a.m. (A) one Business Day prior to the date for a requested
conversion of a Eurodollar Loan to a Prime Rate Loan or Fed Funds Loan or
(B) three Business Days prior to the date for a requested continuation of a
Eurodollar Loan or conversion of a Prime Rate Loan or Fed Funds Loan to a
Eurodollar Loan, in each case pursuant to a written Notice of
Continuation/Conversion submitted to the Administrative Agent which shall
set forth (x) whether the Borrowers wish to continue or convert such Loans
and (y) if the request is to continue a Eurodollar Loan or convert a Loan
to a Eurodollar Loan or Fed Funds Loan, the Interest Period applicable
thereto; provided that prior to June 30, 1998, the Borrowers may not,
without the consent of the Administrative Agent, request any Interest
Period for Eurodollar Loans other than a one-month Interest Period.
24
(f) Minimum Amounts/Restrictions on Loans. Each request for a
borrowing, conversion or continuation shall be subject to the requirements
that (i) each Eurodollar Loan shall be in a minimum amount of $1,000,000
and in integral multiples of $100,000 in excess thereof, (ii) each Prime
Rate Loan and Fed Funds Loan shall be in a minimum amount of $500,000 (and
integral multiples of $100,000 in excess thereof) or the remaining amount
available under the Revolving Committed Amount, (iii) no more than one Fed
Funds Loan shall be made during any one month, (iv) no more than four Loans
shall be made during any one month and (v) no more than six Eurodollar
Loans shall be outstanding at any one time. For the purposes of this
Section, all Eurodollar Loans with the same Interest Periods beginning on
the same date shall be considered as one Eurodollar Loan, but Eurodollar
Loans with different Interest Periods, even if they begin on the same date,
shall be considered as separate Eurodollar Loans.
(g) Notes. The Revolving Loans made by each Lender shall be
evidenced by a duly executed promissory note of the Borrowers to each
Lender in the face amount of its Revolving Loan Commitment Percentage of
the Revolving Committed Amount in substantially the form of Exhibit 2.1(g).
2.2 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and of the
LOC Documents, if any, and any other terms and conditions which the Issuing
Lender may reasonably require (so long as such terms and conditions do not
impose any financial obligation on or require any Lien (not otherwise
contemplated by this Credit Agreement) to be given by any Credit Party or
conflict with any obligation of, or detract from any action which may be
taken by, any Credit Party or its Subsidiaries under this Credit
Agreement), the Issuing Lender shall from time to time upon request issue
(from the Effective Date to the Revolving Loan Maturity Date and in a form
reasonably acceptable to the Issuing Lender), in Dollars, and the LOC
Participants shall participate in, Letters of Credit for the account of the
Credit Parties; provided, however, that (i) the aggregate amount of LOC
Obligations shall not at any time exceed FORTY MILLION DOLLARS
($40,000,000), (ii) the sum of the aggregate amount of LOC Obligations
outstanding plus Revolving Loans outstanding shall not exceed the lesser of
(A) the Borrowing Base and (B) the Revolving Committed Amount and (iii)
with respect to each individual LOC Participant, the LOC Participant's pro
rata share of outstanding Revolving Loans plus its pro rata share of
outstanding LOC Obligations shall not exceed such LOC Participant's
Revolving Loan Commitment Percentage of the Revolving Committed Amount.
The Issuing Lender may require the issuance and expiry date of each Letter
of Credit to be a Business Day. Each Letter of Credit shall be either (x)
a standby letter of credit issued to support the obligations (including
pension or insurance obligations), contingent or otherwise, of a Credit
Party or any of its Subsidiaries, or (y) a commercial letter of credit in
respect of the purchase of goods or services by a Credit Party or any of
its Subsidiaries in the ordinary course of business. Except as otherwise
expressly agreed upon by all the LOC Participants, no Letter of Credit
shall have an original expiry date more than one year from the date of
issuance or shall have an expiry date beyond the Revolving Loan Maturity
Date. Each Letter of Credit shall comply with the related LOC Documents.
25
(b) Notice and Reports. The request for the issuance of a Letter of
Credit shall be submitted to the Issuing Lender at least three Business
Days prior to the requested date of issuance. The Issuing Lender will, at
least quarterly and more frequently upon request, provide to the
Administrative Agent for dissemination to the Lenders a detailed report
specifying the Letters of Credit which are then issued and outstanding and
any activity with respect thereto which may have occurred since the date of
the prior report, and including therein, among other things, the account
party, the beneficiary, the face amount, and the expiry date as well as any
payments or expirations which may have occurred. The Issuing Lender will
further provide to the Administrative Agent, promptly upon request, copies
of the Letters of Credit and the other LOC Documents.
(c) Participations.
(i) Each LOC Participant acknowledges and confirms that it has a
Participation Interest in the liability of the Issuing Lender under
each Existing Letter of Credit in an amount equal to its Revolving
Loan Commitment Percentage of such Existing Letters of Credit. The
Credit Parties' reimbursement obligations in respect of each Existing
Letter of Credit, and each LOC Participant's obligations in connection
therewith, shall be governed by the terms of this Credit Agreement.
(ii) Each LOC Participant, upon issuance of a Letter of Credit,
shall be deemed to have purchased without recourse a risk
participation from the Issuing Lender in such Letter of Credit and
each LOC Document related thereto and the rights and obligations
arising thereunder and any collateral relating thereto, in each case
in an amount equal to its Revolving Loan Commitment Percentage of the
obligations under such Letter of Credit, and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as
surety, and be obligated to pay to the Issuing Lender therefor and
discharge when due, its Revolving Loan Commitment Percentage of the
obligations arising under such Letter of Credit. Without limiting the
scope and nature of each LOC Participant's participation in any Letter
of Credit, to the extent that the Issuing Lender has not been
reimbursed as required hereunder or under any such Letter of Credit,
each such LOC Participant shall pay to the Issuing Lender its
Revolving Loan Commitment Percentage of such unreimbursed drawing in
same day funds on the day of notification by the Issuing Lender of an
unreimbursed drawing pursuant to the provisions of subsection (d) or
(e) hereof. The obligation of each LOC Participant to so reimburse
the Issuing Lender shall be absolute and unconditional and shall not
be affected by the occurrence of a Default, an Event of Default or any
other occurrence or event. Any such reimbursement shall not relieve
or otherwise impair the obligation of the Borrowers to reimburse the
Issuing Lender under any Letter of Credit, together with interest as
hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Borrowers. Unless the
Borrowers shall promptly notify the Issuing Lender of its intent to
otherwise reimburse the Issuing Lender, the
26
Borrowers shall be deemed to have requested a Revolving Loan at a per annum
rate equal to the rate for Prime Rate Loans in the amount of the drawing,
the proceeds of which will be used to satisfy the reimbursement
obligations. The Borrowers shall reimburse the Issuing Lender on the day of
drawing under any Letter of Credit either with the proceeds of such
Revolving Loan obtained hereunder or otherwise in same day funds as
provided herein or in the LOC Documents. If the Borrowers shall fail to
reimburse the Issuing Lender as provided hereinabove, the unreimbursed
amount of such drawing shall bear interest at a per annum rate equal to the
rate for Prime Rate Loans plus two percent (2%). The Borrowers'
reimbursement obligations hereunder shall be absolute and unconditional
under all circumstances irrespective of (but without waiver of) any rights
of set-off, counterclaim or defense to payment the applicable account party
or the Borrowers may claim or have against an Issuing Lender, the
Administrative Agent, the Lenders, the beneficiary of the Letter of Credit
drawn upon or any other Person, including without limitation, any defense
based on any failure of the applicable account party or the Borrowers to
receive consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit. The Issuing Lender will promptly
notify the LOC Participants of the amount of any unreimbursed drawing and
each LOC Participant shall promptly pay to the Issuing Lender, in Dollars
and in immediately available funds, the amount of such LOC Participant's
Revolving Loan Commitment Percentage of such unreimbursed drawing. Such
payment shall be made on the day such notice is received by such Lender
from the Issuing Lender if such notice is received at or before 2:00 p.m.,
otherwise such payment shall be made at or before 12:00 Noon on the
Business Day next succeeding the day such notice is received. If such LOC
Participant does not pay such amount to the Issuing Lender in full upon
such request, such LOC Participant shall, on demand, pay to the Issuing
Lender interest on the unpaid amount during the period from the date the
LOC Participant received the notice regarding the unreimbursed drawing
until such LOC Participant pays such amount to the Issuing Lender in full
at a rate per annum equal to, if paid within two Business Days of the date
of drawing, the Federal Funds Rate and thereafter at a rate equal to the
Prime Rate. Each LOC Participant's obligation to make such payment to the
Issuing Lender, and the right of the Issuing Lender to receive the same,
shall be absolute and unconditional, shall not be affected by any
circumstance whatsoever and without regard to the termination of this
Credit Agreement or the Commitments hereunder, the existence of a Default
or Event of Default or the acceleration of the obligations hereunder and
shall be made without any offset, abatement, withholding or reduction
whatsoever. Simultaneously with the making of each such payment by a LOC
Participant to the Issuing Lender, such LOC Participant shall,
automatically and without any further action on the part of the Issuing
Lender or such LOC Participant, acquire a participation in an amount equal
to such payment (excluding the portion of such payment constituting
interest owing to the Issuing Lender) in the related unreimbursed drawing
portion of the LOC Obligation and in the interest thereon and in the
related LOC Documents, and shall have a ratable interest in the Issuing
Lender's claim against the Borrowers with respect thereto.
(e) Repayment with Revolving Loans. On any day on which the
Borrowers shall have requested, or been deemed to have requested, a
Revolving Loan borrowing to reimburse a drawing under a Letter of Credit
(as set forth in clause (d) above), the Administrative Agent shall give
notice to the applicable Lenders that a Revolving Loan has
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been requested or deemed requested in connection with a drawing under a
Letter of Credit, in which case a Revolving Loan borrowing comprised solely
of Prime Rate Loans (each such borrowing, a "Mandatory Borrowing") shall be
immediately made from all applicable Lenders (without giving effect to any
termination of the Commitments pursuant to Section 9.2) pro rata based on
each Lender's respective Revolving Loan Commitment Percentage and the
proceeds thereof shall be paid directly to the Issuing Lender for
application to the respective LOC Obligations. Each such Lender hereby
irrevocably agrees to make such Revolving Loans immediately upon any such
request or deemed request on account of each such Mandatory Borrowing in
the amount and in the manner specified in the preceding sentence and on the
same such date notwithstanding (i) the amount of Mandatory Borrowing may
not comply with the minimum amount for borrowings of Revolving Loans
otherwise required hereunder, (ii) whether any conditions specified in
Section 5.2 are then satisfied, (iii) whether a Default or Event of Default
then exists, (iv) failure of any such request or deemed request for
Revolving Loans to be made by the time otherwise required hereunder, (v)
the date of such Mandatory Borrowing, or (vi) any reduction in the
Revolving Committed Amount or any termination of the Commitments. In the
event that any Mandatory Borrowing cannot for any reason be made on the
date otherwise required above (including, without limitation, as a result
of the commencement of a proceeding under the Bankruptcy Code with respect
to a Credit Party), then each such Lender hereby agrees that it shall
forthwith fund (as of the date the Mandatory Borrowing would otherwise have
occurred, but adjusted for any payments received from the Borrowers on or
after such date and prior to such purchase) its Participation Interest in
the outstanding LOC Obligations; provided, further, that in the event any
Lender shall fail to fund its Participation Interest on the day the
Mandatory Borrowing would otherwise have occurred, then the amount of such
Lender's unfunded Participation Interest therein shall bear interest
payable to the Issuing Lender upon demand, at the rate equal to, if paid
within two Business Days of such date, the Federal Funds Rate, and
thereafter at a rate equal to the Prime Rate.
(f) Modification and Extension. The issuance of any supplement,
modification, amendment, renewal, or extensions to any Letter of Credit
shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder; provided that the fees to be
paid pursuant to Section 3.4(b)(i) shall only be due if the expiration date
of such Letter of Credit is extended.
(g) Uniform Customs and Practices. The Issuing Lender may have the
Letters of Credit be subject to The Uniform Customs and Practice for
Documentary Credits, as published as of the date of issue by the
International Chamber of Commerce (Publication No. 500 or the most recent
publication, the "UCP"), in which case the UCP may be incorporated therein
and deemed in all respects to be a part thereof.
(h) Responsibility of Issuing Lender. It is expressly understood and
agreed as between the Lenders that the obligations of the Issuing Lender
hereunder to the LOC Participants are only those expressly set forth in
this Credit Agreement and that the Issuing Lender shall be entitled to
assume that the conditions precedent set forth in Section 5.2 have been
satisfied unless it shall have acquired actual knowledge that any such
condition precedent has not been satisfied; provided, however, that nothing
set forth in this Section
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2.2 shall be deemed to prejudice the right of any LOC Participant to
recover from the Issuing Lender any amounts made available by such LOC
Participant to the Issuing Lender pursuant to this Section 2.2 in the event
that it is determined by a court of competent jurisdiction that the payment
with respect to a Letter of Credit constituted gross negligence or willful
misconduct on the part of the Issuing Lender.
(i) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document, this Credit Agreement
shall govern.
(j) Indemnification of Issuing Lender.
(i) In addition to its other obligations under this Credit
Agreement, the Credit Parties hereby agree to protect, indemnify, pay
and save the Issuing Lender harmless from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) that the Issuing
Lender may incur or be subject to as a consequence, direct or
indirect, of (A) the issuance of any Letter of Credit or (B) the
failure of the Issuing Lender to honor a drawing under a Letter of
Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto Governmental
Authority (all such acts or omissions, herein called "Government
Acts").
(ii) As between the Credit Parties and the Issuing Lender, the
Credit Parties shall assume all risks of the acts, omissions or misuse
of any Letter of Credit by the beneficiary thereof. The Issuing
Lender shall not be responsible for: (A) the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document
submitted by any Credit Party in connection with the application for
and issuance of any Letter of Credit, even if it should in fact prove
to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (B) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign any Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason; (C) failure of the beneficiary of a Letter
of Credit to comply fully with conditions required in order to draw
upon a Letter of Credit; (D) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in cipher; (E)
errors in interpretation of technical terms; (F) any loss or delay in
the transmission or otherwise of any document required to be delivered
to the Issuing Lender in order to make a drawing under a Letter of
Credit or of the proceeds thereof; and (G) any consequences arising
from causes beyond the control of the Issuing Lender, including,
without limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of the Issuing Lender's rights
or powers hereunder.
(iii) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or
omitted by the Issuing Lender, under or in connection with any Letter
of Credit or the related certificates, if taken or omitted in good
faith, shall not put the Issuing Lender under any resulting
29
liability to the Credit Parties. It is the intention of the parties
that this Credit Agreement shall be construed and applied to protect
and indemnify the Issuing Lender against any and all risks involved in
the issuance of the Letters of Credit, all of which risks are hereby
assumed by the Credit Parties, including, without limitation, any and
all risks of the acts or omissions, whether rightful or wrongful, of
any present or future Government Acts. The Issuing Lender shall not,
in any way, be liable for any failure by the Issuing Lender or anyone
else to pay any drawing under any Letter of Credit as a result of any
Government Acts or any other cause beyond the control of the Issuing
Lender.
(iv) Nothing in this subsection (j) is intended to limit the
reimbursement obligation of the Credit Parties contained in this
Section 2.2. The obligations of the Credit Parties under this
subsection (j) shall survive the termination of this Credit Agreement.
No act or omission of any current or prior beneficiary of a Letter of
Credit shall in any way affect or impair the rights of the Issuing
Lender to enforce any right, power or benefit under this Credit
Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (j), the Credit Parties shall have no obligation to
indemnify the Issuing Lender in respect of any liability incurred by
the Issuing Lender arising solely out of the gross negligence or
willful misconduct of the Issuing Lender. Nothing in this Agreement
shall relieve the Issuing Lender of any liability to the Credit
Parties in respect of any action taken by the Issuing Lender which
action constitutes gross negligence or willful misconduct of the
Issuing Lender or a violation of the UCP or Uniform Commercial Code
(as applicable).
2.3 Joint and Several Liability of the Borrowers.
(a) Each of the Borrowers is accepting joint and several liability
hereunder in consideration of the financial accommodation to be provided by
the Lenders under this Credit Agreement, for the mutual benefit, directly
and indirectly, of each of the Borrowers and in consideration of the
undertakings of each of the Borrowers to accept joint and several liability
for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably
and unconditionally accepts, not merely as a surety but also as a
co-debtor, joint and several liability with the other Borrowers with
respect to the payment and performance of all of the Obligations arising
under this Credit Agreement and the other Credit Documents, it being the
intention of the parties hereto that all the Obligations shall be the joint
and several obligations of each of the Borrowers without preferences or
distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make
any payment with respect to any of the obligations hereunder as and when
due or to perform any of such obligations in accordance with the terms
thereof, then in each such event, the other Borrowers will make such
payment with respect to, or perform, such obligation.
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(d) The obligations of each Borrower under the provisions of this
Section 2.3 constitute full recourse obligations of such Borrower,
enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent
permitted by law, each Borrower hereby waives notice of acceptance of its
joint and several liability, notice of occurrence of any Default or Event
of Default (except to the extent notice is expressly required to be given
pursuant to the terms of this Credit Agreement), or of any demand for any
payment under this Credit Agreement, notice of any action at any time taken
or omitted by the Administrative Agent or the Lenders under or in respect
of any of the Obligations hereunder, any requirement of diligence and,
generally, all demands, notices and other formalities of every kind in
connection with this Credit Agreement. Each Borrower hereby assents to,
and waives notice of, any extension or postponement of the time for the
payment of any of the Obligations hereunder, the acceptance of any partial
payment thereon, any waiver, consent or other action or acquiescence by the
Administrative Agent or the Lenders at any time or times in respect of any
default by any Borrower in the performance or satisfaction of any term,
covenant, condition or provision of this Credit Agreement, any and all
other indulgences whatsoever by the Administrative Agent or the Lenders in
respect of any of the Obligations hereunder, and the taking, addition,
substitution or release, in whole or in part, at any time or times, of any
security for any of such Obligations or the addition, substitution or
release, in whole or in part, of any Borrower. Without limiting the
generality of the foregoing, each Borrower assents to any other action or
delay in acting or any failure to act on the part of the Administrative
Agent or the Lenders, including, without limitation, any failure strictly
or diligently to assert any right or to pursue any remedy or to comply
fully with applicable laws or regulations thereunder which might, but for
the provisions of this Section 2.3, afford grounds for terminating,
discharging or relieving such Borrower, in whole or in part, from any of
its obligations under this Section 2.3, it being the intention of each
Borrower that, so long as any of the Obligations hereunder remain
unsatisfied, the obligations of such Borrower under this Section 2.3 shall
not be discharged except by performance and then only to the extent of such
performance. The obligations of each Borrower under this Section 2.3 shall
not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar
proceeding with respect to any reconstruction or similar proceeding with
respect to any Borrower or a Lender. The joint and several liability of
the Borrowers hereunder shall continue in full force and effect
notwithstanding any absorption, merger, amalgamation or any other change
whatsoever in the name, membership, constitution or place of formation of
any Borrower or any of the Lenders.
(f) The provisions of this Section 2.3 are made for the benefit of
the Lenders and their successors and assigns, and may be enforced by them
from time to time against any of the Borrowers as often as occasion
therefor may arise and without requirement on the part of the Lenders first
to xxxxxxxx any of its claims or to exercise any of its rights against the
other Borrower or to exhaust any remedies available to it against the other
Borrower or to resort to any other source or means of obtaining payment of
any of the Obligations hereunder or to elect any other remedy. The
provisions of this Section 2.3 shall remain in effect until all the
Obligations hereunder shall have been paid in full or otherwise
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fully satisfied. If at any time, any payment, or any part thereof, made in
respect of any of the Obligations, is rescinded or must otherwise be
restored or returned by the Lenders upon the insolvency, bankruptcy or
reorganization of any of the Borrowers, or otherwise, the provisions of
this Section 2.3 will forthwith be reinstated and in effect as though such
payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or
in any of the other Credit Documents, to the extent the obligations of any
Borrower shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal
law relating to fraudulent conveyances or transfers) then the obligations
of such Borrower hereunder shall be limited to the maximum amount that is
permissible under applicable law (whether federal or state and including,
without limitation, the Bankruptcy Code).
2.4 Appointment of BOP.
BRT hereby appoints BOP to act as its agent for all purposes under this
Credit Agreement (including, without limitation, with respect to all matters
related to the borrowing and repayment of Loans) and agrees that (i) BOP may
execute such documents on behalf of BRT as BOP deems appropriate in its sole
discretion and BRT shall be obligated by all of the terms of any such document
executed on its behalf, (ii) any notice or communication delivered by the
Administrative Agent or the Lender to BOP shall be deemed delivered to BRT and
(iii) the Administrative Agent or the Lender may accept, and be permitted to
rely on, any document, instrument or agreement executed by BOP on behalf of BRT.
2.5 Non-Recourse.
Notwithstanding anything herein to the contrary, no recourse shall be had
against Brandywine Realty Services Partnership or any past, present or future
shareholder, officer, director or trustee of BRT for any obligation of the
Credit Parties under the Credit Documents, or for any claim based thereon or
otherwise in respect thereof; provided, however, that this Section 2.5 shall not
restrict or limit any claim against any such Person arising out of or occurring
with respect to fraud or any intentional misrepresentation or any act or
omission that is willful or wanton or constitutes gross negligence or willful
misconduct..
SECTION 3
GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT
3.1 Interest.
(a) Interest Rate. All Prime Rate Loans shall accrue interest at the
Prime Rate plus one-fourth percent (.25%) per annum. All Fed Funds Loans
shall accrue interest at the Federal Funds Rate plus one-half percent
(.50%) per annum. All Eurodollar Loans shall accrue interest at the
Adjusted Eurodollar Rate.
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(b) Default Rate of Interest. Upon the occurrence, and during the
continuance, of an Event of Default, the principal of and, to the extent
permitted by law, interest on the Loans and any other amounts owing
hereunder or under the other Credit Documents (including without limitation
fees and expenses) shall bear interest, payable on demand, at a per annum
rate equal to four percent (4%) plus the rate which would otherwise be
applicable (or if no rate is applicable, then the rate for Prime Rate Loans
plus four percent (4%) per annum); provided that unless the Loans have been
accelerated, interest, including the default rate of interest, shall only
be due and payable on the Interest Payment Dates.
(c) Interest Payments. Interest on Loans shall be due and payable in
arrears on each Interest Payment Date. If an Interest Payment Date falls
on a date which is not a Business Day, such Interest Payment Date shall be
deemed to be the succeeding Business Day, except that in the case of
Eurodollar Loans where the succeeding Business Day falls in the succeeding
calendar month, then on the preceding Business Day.
3.2 Place and Manner of Payments.
All payments of principal, interest, fees, expenses and other amounts to be
made by a Borrower under this Agreement shall be received not later than 2:00
p.m. on the date when due, in Dollars and in immediately available funds, by the
Administrative Agent at its offices in Charlotte, North Carolina or the Issuing
Lender at its applicable address. Payments received after such time shall be
deemed to have been received on the next Business Day. The Borrowers shall, at
the time it makes any payment under this Agreement, specify to the
Administrative Agent or Issuing Lender, as applicable, the Loans, Letters of
Credit, fees or other amounts payable by the Borrowers hereunder to which such
payment is to be applied (and in the event that it fails to specify, or if such
application would be inconsistent with the terms hereof, the Administrative
Agent shall, subject to Section 3.7, distribute such payment to the Lenders in
such manner as the Administrative Agent may deem appropriate). The
Administrative Agent will distribute any such payment to the Lenders on the day
received if such payment is received prior to 2:00 p.m.; otherwise the
Administrative Agent will distribute such payment to the Lenders on the next
succeeding Business Day. Whenever any payment hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day (subject to accrual of interest and fees for
the period of such extension), except that in the case of Eurodollar Loans, if
the extension would cause the payment to be made in the next following calendar
month, then such payment shall instead be made on the next preceding Business
Day.
3.3 Prepayments.
(a) Voluntary Prepayments. The Borrowers shall have the right to
prepay Loans in whole or in part from time to time without premium or
penalty; provided, however, that (i) Eurodollar Loans may only be prepaid
on three Business Days' prior written notice to the Administrative Agent
and any prepayment of Eurodollar Loans will be subject to Section 3.14 and
(ii) each such partial prepayment of Loans shall be in the minimum
principal amount of $1,000,000 and integral multiples of $100,000 in excess
thereof.
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(b) Mandatory Prepayments.
(i) Revolving Committed Amount. If at any time the
aggregate amount of Revolving Loans outstanding plus LOC Obligations
outstanding exceeds the lesser of (A) the Revolving Committed Amount
and (B) the Borrowing Base, the Borrowers shall, within sixty days
thereafter, forward to the Administrative Agent an amount necessary to
be in compliance with Section 2.1(a)(i) (to be applied as set forth in
Section 3.3(c) below); provided that if a prepayment is required under
this Section 3.3(b)(i) due to a change in the Capitalization Rate by
the Administrative Agent, the Borrowers shall have ninety days to
forward to the Administrative Agent an amount necessary to be in
compliance with Section 2.1(a)(i).
(ii) Sale or Refinancing of an Eligible Property. Upon the
consummation of the sale or refinancing of an Eligible Property, the
Borrowers shall immediately forward to the Administrative Agent an
amount necessary to be in compliance with Section 2.1(a)(i) (to be
applied as set forth in Section 3.3(c) below).
(iii) Equity Offerings. Upon receipt by a Borrower or
any of its Subsidiaries of the proceeds from an Equity Issuance, the
Borrowers shall immediately apply the Net Cash Proceeds thereof to the
Bridge Facility until such Bridge Facility is paid in full and
terminated and after payment in full of the Bridge Facility shall
immediately forward 100% of the Net Cash Proceeds (if any) to the
Administrative Agent as a prepayment of the Loans (to be applied as
set forth in Section 3.3(c) below).
(c) Application of Prepayments. All amounts required to be paid
pursuant to Section 3.3(b)(i), (ii) and (iii) above shall be applied first
to Prime Rate Loans, second to Fed Funds Loans and third to Eurodollar
Loans in direct order of Interest Period Maturities. All prepayments
hereunder shall be subject to Section 3.14; provided that prepayments
required to be made pursuant to Section 3.3(b) (ii) or 3.3(b)(iii) that
repay a Eurodollar Loan within 30 days of the last day of its Interest
Period shall not be subject to Section 3.14.
3.4 Fees.
(a) Unused Fees. In consideration of the Revolving Committed Amount
being made available by the Lenders hereunder, the Borrowers agree to pay
to the Administrative Agent, for the pro rata benefit of each Lender (based
on each Lender's Revolving Loan Commitment Percentage of the Revolving
Committed Amount), a fee equal to (i) if the average Unused Commitment
during the prior fiscal quarter is less than 50% of the Revolving Committed
Amount, .20% per annum on the Unused Commitment and (ii) if the average
Unused Commitment during the prior fiscal quarter is equal to or greater
than 50% of the Revolving Committed Amount, .15% per annum on the Unused
Commitment (the "Unused Fees"). The accrued Unused Fees shall commence to
accrue on the Effective Date and shall be due and payable in arrears on the
first day of each fiscal quarter of the
34
Borrowers (as well as on the Revolving Loan Maturity Date and on any date
that the Revolving Committed Amount is reduced) for the immediately
preceding fiscal quarter (or portion thereof), beginning with the first of
such dates to occur after the Effective Date.
(b) Letter of Credit Fees.
(i) Letter of Credit Fees. In consideration of the issuance of
Letters of Credit hereunder, the Borrowers agree to pay to the Issuing
Lender, for the pro rata benefit of the applicable Lenders (based on
each Lender's Revolving Loan Commitment Percentage of the Revolving
Committed Amount), a fee (the "Letter of Credit Fees") equal to 1.125%
on the average daily maximum amount available to be drawn under each
such Letter of Credit from the date of issuance to the date of
expiration. The Letter of Credit Fees will be payable in full on the
date of issuance of the Letter of Credit.
(ii) Issuing Lender Fees. In addition to the Letter of Credit
Fees payable pursuant to subsection (i) above, the Borrowers shall pay
to the Issuing Lender for its own account, without sharing by the
other Lenders, (A) a fee equal to .125% per annum on the total sum of
the undrawn amounts of all Letters of Credit issued by the Issuing
Lender, such fee to be paid in full on the date of issuance of the
Letter of Credit and (B) the customary charges from time to time to
the Issuing Lender for its services in connection with the issuance,
amendment, payment, transfer, administration, cancellation and
conversion of, and drawings under, Letters of Credit (collectively,
the "Issuing Lender Fees").
(c) Administrative Fees. The Borrowers agree to pay to the
Administrative Agent, for its own account, an annual fee as agreed to
between the Borrowers and the Administrative Agent in the Fee Letter.
3.5 Payment in full at Maturity; Extension of Maturity.
(a) On the Revolving Loan Maturity Date, the entire outstanding
principal balance of all Revolving Loans and all LOC Obligations, together
with accrued but unpaid interest and all other sums owing with respect
thereto, shall be due and payable in full, unless accelerated sooner
pursuant to Section 9.2.
(b) If on the Initial Revolving Loan Maturity Date (i) no Default or
Event of Default exists and is continuing and (ii) the Borrowers pay to the
Administrative Agent, for the pro rata benefit of the Lenders, an extension
fee equal to one-fifth of one percent (.20%) of the then Revolving
Committed Amount, the Borrowers may elect to extend the Revolving Loan
Maturity Date to January 5, 2002. The Borrowers shall give written notice
to the Administrative Agent of its desire to effect such election at least
30 days, but no more than 90 days, prior to the Initial Revolving Loan
Maturity Date.
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3.6 Computations of Interest and Fees.
(a) Except for Prime Rate Loans which shall be calculated on the
basis of a 365 or 366 day year as the case may be, all computations of
interest and fees hereunder shall be made on the basis of the actual number
of days elapsed over a year of 360 days. Interest shall accrue from and
include the date of borrowing (or continuation or conversion) but exclude
the date of payment.
(b) It is the intent of the Lenders and the Credit Parties to conform
to and contract in strict compliance with applicable usury law from time to
time in effect. All agreements between the Lenders and the Credit Parties
are hereby limited by the provisions of this paragraph which shall override
and control all such agreements, whether now existing or hereafter arising
and whether written or oral. In no way, nor in any event or contingency
(including but not limited to prepayment or acceleration of the maturity of
any obligation), shall the interest taken, reserved, contracted for,
charged, or received under this Credit Agreement, under the Notes or
otherwise, exceed the maximum nonusurious amount permissible under
applicable law. If, from any possible construction of any of the Credit
Documents or any other document, interest would otherwise be payable in
excess of the maximum nonusurious amount, any such construction shall be
subject to the provisions of this paragraph and such interest shall be
automatically reduced to the maximum nonusurious amount permitted under
applicable law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which
would, apart from this provision, be in excess of the maximum lawful
amount, an amount equal to the amount which would have been excessive
interest shall, without penalty, be applied to the reduction of the
principal amount owing on the Loans and not to the payment of interest, or
refunded to the Credit Parties or the other payor thereof if and to the
extent such amount which would have been excessive exceeds such unpaid
principal amount of the Loans. The right to demand payment of the Loans or
any other indebtedness evidenced by any of the Credit Documents does not
include the right to receive any interest which has not otherwise accrued
on the date of such demand, and the Lenders do not intend to charge or
receive any unearned interest in the event of such demand. All interest
paid or agreed to be paid to the Lenders with respect to the Loans shall,
to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term (including any
renewal or extension) of the Loans so that the amount of interest on
account of such indebtedness does not exceed the maximum nonusurious amount
permitted by applicable law.
3.7 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Loans. Each Revolving Loan borrowing, each payment or prepayment
of principal of any Loan, each payment of fees (other than the
Administrative Fees and the Issuing Lender Fees), each reduction of the
Revolving Committed Amount, and each conversion or continuation of any
Loan, shall (except as otherwise provided in Section
36
3.11) be allocated pro rata among the Lenders in accordance with the
respective Revolving Loan Commitment Percentages of such Lenders (or, if
the Commitments of such Lenders have expired or been terminated, in
accordance with the respective principal amounts of the outstanding Loans
and Participation Interests of such Lenders); provided that, if any Lender
shall have failed to pay its applicable pro rata share of any Revolving
Loan, then any amount to which such Lender would otherwise be entitled
pursuant to this Section 3.7 shall instead be payable to the Administrative
Agent until the share of such Loan not funded by such Lender has been
repaid; provided further, that in the event any amount paid to any Lender
pursuant to this Section 3.7 is rescinded or must otherwise be returned by
the Administrative Agent, each Lender shall, upon the request of the
Administrative Agent, repay to the Administrative Agent the amount so paid
to such Lender, with interest for the period commencing on the date such
payment is returned by the Administrative Agent until the date the
Administrative Agent receives such repayment at a rate per annum equal to,
during the period to but excluding the date two Business Days after such
request, the Federal Funds Rate, and thereafter, at the Prime Rate plus two
percent (2%) per annum; and
(b) Letters of Credit. Each payment of unreimbursed drawings in
respect of LOC Obligations shall be allocated to each LOC Participant pro
rata in accordance with its Revolving Loan Commitment Percentage; provided
that, if any LOC Participant shall have failed to pay its applicable pro
rata share of any drawing under any Letter of Credit, then any amount to
which such LOC Participant would otherwise be entitled pursuant to this
subsection (b) shall instead be payable to the Issuing Lender until the
share of such unreimbursed drawing not funded by such Lender has been
repaid; provided further, that in the event any amount paid to any LOC
Participant pursuant to this subsection (b) is rescinded or must otherwise
be returned by the Issuing Lender, each LOC Participant shall, upon the
request of the Issuing Lender, repay to the Administrative Agent for the
account of the Issuing Lender the amount so paid to such LOC Participant,
with interest for the period commencing on the date such payment is
returned by the Issuing Lender until the date the Issuing Lender receives
such repayment at a rate per annum equal to, during the period to but
excluding the date two Business Days after such request, the Federal Funds
Rate, and thereafter, the Prime Rate plus two percent (2%) per annum.
3.8 Sharing of Payments.
The Lenders agree among themselves that, except to the extent otherwise
provided herein, in the event that any Lender shall obtain payment in respect of
any Loan or any other obligation owing to such Lender under this Credit
Agreement through the exercise of a right of setoff, banker's lien or
counterclaim, or pursuant to a secured claim under Section 506 of the Bankruptcy
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by any other means, in excess of its pro rata
share of such payment as provided for in this Credit Agreement, such Lender
shall promptly pay in cash or purchase from the other Lenders a participation in
such Loans and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all Lenders
share such payment in accordance with their respective ratable shares as
provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a
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right of setoff, banker's lien, counterclaim or other event as aforesaid shall
be rescinded or must otherwise be restored, each Lender which shall have shared
the benefit of such payment shall, by payment in cash or a repurchase of a
participation theretofore sold, return its share of that benefit (together with
its share of any accrued interest payable with respect thereto) to each Lender
whose payment shall have been rescinded or otherwise restored. The Credit
Parties agree that any Lender so purchasing such a participation may, to the
fullest extent permitted by law, exercise all rights of payment, including
setoff, banker's lien or counterclaim, with respect to such participation as
fully as if such Lender were a holder of such Loan or other obligation in the
amount of such participation. Except as otherwise expressly provided in this
Credit Agreement, if any Lender shall fail to remit to the Administrative Agent
or any other Lender an amount payable by such Lender to the Administrative Agent
or such other Lender pursuant to this Credit Agreement on the date when such
amount is due, such payments shall be made together with interest thereon for
each date from the date such amount is due until the date such amount is paid to
the Administrative Agent or such other Lender at a rate per annum equal to the
Federal Funds Rate. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section 3.8 applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Lenders under this Section 3.8 to share in the benefits of any
recovery on such secured claim.
3.9 Capital Adequacy.
If, after the date hereof, any Lender has determined that the adoption or
the becoming effective of, or any change in, or any change by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
applicable law, rule or regulation regarding capital adequacy, or compliance by
such Lender, or its parent corporation, with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Lender's (or parent corporation's) capital or assets as a
consequence of its commitments or obligations hereunder to a level below that
which such Lender, or its parent corporation, could have achieved but for such
adoption, effectiveness, change or compliance (taking into consideration such
Lender's (or parent corporation's) policies with respect to capital adequacy),
then, upon notice from such Lender to the Borrowers and the Administrative
Agent, the Borrowers shall be obligated to pay to such Lender such additional
amount or amounts as will compensate such Lender on an after-tax basis (after
taking into account applicable deductions and credits in respect of the amount
indemnified) for such reduction. Each determination by any such Lender of
amounts owing under this Section shall, absent manifest error, be conclusive and
binding on the parties hereto. This covenant shall survive the termination of
this Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.10 Inability To Determine Interest Rate.
If prior to the first day of any Interest Period, the Administrative
Agent shall have determined in good faith (which determination shall be
conclusive and binding upon the Borrowers) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Adjusted Eurodollar Rate for such Interest Period, the
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Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrowers and the Lenders as soon as practicable thereafter, and will also
give prompt written notice to the Borrowers when such conditions no longer
exist. If such notice is given (a) any Eurodollar Loans requested to be made
on the first day of such Interest Period shall be made as Prime Rate Loans
and (b) any Loans that were to have been converted on the first day of such
Interest Period to or continued as Eurodollar Loans shall be converted to or
continued as Prime Rate Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made or continued
as such, nor shall the Borrowers have the right to convert Prime Rate Loans
or Fed Funds Loans to Eurodollar Loans.
3.11 Illegality.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurodollar Loans as contemplated by this Credit Agreement, (a) such
Lender shall promptly give written notice of such circumstances to the Borrowers
and the Administrative Agent (which notice shall be promptly withdrawn whenever
such circumstances no longer exist), (b) the commitment of such Lender hereunder
to make Eurodollar Loans, continue Eurodollar Loans as such and convert a Prime
Rate Loan to Eurodollar Loans shall forthwith be canceled and, until such time
as it shall no longer be unlawful for such Lender to make or maintain Eurodollar
Loans, such Lender shall then have a commitment only to make a Prime Rate Loan
when a Eurodollar Loan is requested and (c) such Lender's Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to Prime Rate
Loans on the respective last days of the then current Interest Periods with
respect to such Loans or within such earlier period as required by law. If any
such conversion of a Eurodollar Loan occurs on a day which is not the last day
of the then current Interest Period with respect thereto, the Borrowers shall
pay to such Lender such amounts, if any, as may be required pursuant to Section
3.14; provided that no such payments shall be required if the conversion of a
Eurodollar Loan occurs within 30 days of the last day of the Interest Period of
such Eurodollar Loan.
3.12 Requirements of Law.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender, or compliance by
any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in each case made
subsequent to the Closing Date (or, if later, the date on which such Lender
becomes a Lender):
(a) shall subject such Lender to any tax of any kind whatsoever with
respect to any Letter of Credit, any Eurodollar Loans made by it or its
obligation to make Eurodollar Loans, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded Taxes
covered by Section 3.13 (including Non-Excluded Taxes imposed solely by
reason of any failure of such Lender to comply with its obligations under
Section 3.13(b)) and changes in taxes measured by or imposed upon the
overall net income, or franchise tax (imposed in lieu of such net income
tax), of such Lender or its applicable lending office, branch, or any
affiliate thereof);
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(b) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Adjusted Eurodollar Rate hereunder; or
(c) shall impose on such Lender any other condition (excluding any
tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the Borrowers from such Lender,
through the Administrative Agent, in accordance herewith, the Borrowers shall be
obligated to promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender on an after-tax basis (after taking into
account applicable deductions and credits in respect of the amount indemnified)
for such increased cost or reduced amount receivable, provided that, in any such
case, the Borrowers may elect to convert the Eurodollar Loans made by such
Lender hereunder to Prime Rate Loans by giving the Administrative Agent at least
one Business Day's notice of such election, in which case the Borrowers shall
promptly pay to such Lender, upon demand, without duplication, such amounts, if
any, as may be required pursuant to Section 3.14. If any Lender becomes
entitled to claim any additional amounts pursuant to this Section 3.12, it shall
provide prompt notice thereof to the Borrowers, through the Administrative
Agent, certifying (x) that one of the events described in this Section 3.12 has
occurred and describing in reasonable detail the nature of such event, (y) as to
the increased cost or reduced amount resulting from such event and (z) as to the
additional amount demanded by such Lender and a reasonably detailed explanation
of the calculation thereof. Such a certificate as to any additional amounts
payable pursuant to this Section 3.12 submitted by such Lender, through the
Administrative Agent, to the Borrowers shall be conclusive and binding on the
parties hereto in the absence of manifest error. This covenant shall survive
the termination of this Credit Agreement and the payment of the Loans and all
other amounts payable hereunder.
3.13 Taxes.
(a) Except as provided below in this Section 3.13, all payments made
by the Borrowers under this Credit Agreement and any Notes shall be made
free and clear of, and without deduction or withholding for or on account
of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any court, or
governmental body, agency or other official, excluding taxes measured by or
imposed upon the overall net income of any Lender or its applicable lending
office, or any branch or affiliate thereof, and all franchise taxes, branch
taxes, taxes on doing business or taxes on the overall capital or net worth
of any Lender or its applicable lending office, or any branch or affiliate
thereof, in each case imposed in lieu of net income taxes: (i) by the
jurisdiction under the laws of which such Lender, applicable lending
office, branch or affiliate is organized or is located,
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or in which its principal executive office is located, or any nation within
which such jurisdiction is located or any political subdivision thereof; or (ii)
by reason of any connection between the jurisdiction imposing such tax and such
Lender, applicable lending office, branch or affiliate other than a connection
arising solely from such Lender having executed, delivered or performed its
obligations, or received payment under or enforced, this Credit Agreement or any
Notes. If any such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder or
under any Notes, (A) the amounts so payable to the Administrative Agent or such
Lender shall be increased to the extent necessary to yield to the Administrative
Agent or such Lender (after payment of all Non-Excluded Taxes) interest on any
such other amounts payable hereunder at the rates or in the amounts specified in
this Credit Agreement and any Notes, provided, however, that the Borrowers shall
be entitled to deduct and withhold any Non-Excluded Taxes and shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state thereof if
such Lender fails to comply with the requirements of paragraph (b) of this
Section 3.13 whenever any Non-Excluded Taxes are payable by the Borrowers, and
(B) as promptly as possible after requested the Borrowers shall send to the
Administrative Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt received by
the Borrowers showing payment thereof. If the Borrowers fail to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrowers shall indemnify the Administrative Agent and
any Lender for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this subsection shall survive the termination of
this Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(i) (A) on or before the date of any payment by the Borrowers
under this Credit Agreement or Notes to such Lender, deliver to the
Borrowers and the Administrative Agent (x) two duly completed copies
of United States Internal Revenue Service Form 1001 or 4224, or
successor applicable form, as the case may be, certifying that it is
entitled to receive payments under this Credit Agreement and any Notes
without deduction or withholding of any United States federal income
taxes and (y) an Internal Revenue Service Form W-8 or W-9, or
successor applicable form, as the case may be, certifying that it is
entitled to an exemption from United States backup withholding tax;
(B) deliver to the Borrowers and the Administrative Agent
two further copies of any such form or certification on or before the
date that any such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrowers; and
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(C) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrowers or the Administrative Agent; or
(ii) in the case of any such Lender that is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Internal Revenue
Code, (A) represent to the Borrowers (for the benefit of the Borrowers
and the Administrative Agent) that it is not a bank within the meaning
of Section 881(c)(3)(A) of the Internal Revenue Code, (B) agree to
furnish to the Borrowers, on or before the date of any payment by the
Borrowers, with a copy to the Administrative Agent, two accurate and
complete original signed copies of Internal Revenue Service Form W-8,
or successor applicable form certifying to such Lender's legal
entitlement at the date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 881(c) of the Internal
Revenue Code with respect to payments to be made under this Credit
Agreement and any Notes (and to deliver to the Borrowers and the
Administrative Agent two further copies of such form on or before the
date it expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recently provided form and, if
necessary, obtain any extensions of time reasonably requested by the
Borrowers or the Administrative Agent for filing and completing such
forms), and (C) agree, to the extent legally entitled to do so, upon
reasonable request by the Borrowers, to provide to the Borrowers (for
the benefit of the Borrowers and the Administrative Agent) such other
forms as may be reasonably required in order to establish the legal
entitlement of such Lender to an exemption from withholding with
respect to payments under this Credit Agreement and any Notes.
Notwithstanding the above, if any change in treaty, law or regulation has
occurred after the date such Person becomes a Lender hereunder which
renders all such forms inapplicable or which would prevent such Lender from
duly completing and delivering any such form with respect to it and such
Lender so advises the Borrowers and the Administrative Agent then such
Lender shall be exempt from such requirements. Each Person that shall
become a Lender or a participant of a Lender pursuant to Section 11.3
shall, upon the effectiveness of the related transfer, be required to
provide all of the forms, certifications and statements required pursuant
to this subsection (b); provided that in the case of a participant of a
Lender, the obligations of such participant of a Lender pursuant to this
subsection (b) shall be determined as if the participant of a Lender were a
Lender except that such participant of a Lender shall furnish all such
required forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
3.14 Compensation.
Except as expressly set forth in Section 3.3(c), the Borrowers promise to
indemnify each Lender and to hold each Lender harmless from any loss or expense
which such Lender may sustain or incur as a consequence of (a) default by the
Borrowers in making a borrowing of, conversion into or continuation of
Eurodollar Loans after the Borrowers have given a notice requesting the
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same in accordance with the provisions of this Credit Agreement, (b) default by
the Borrowers in making any prepayment of a Eurodollar Loan after the Borrowers
have given a notice thereof in accordance with the provisions of this Credit
Agreement and (c) the making of a prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to (i) the amount of interest which
would have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of the applicable Interest Period
(or, in the case of a failure to borrow, convert or continue, the Interest
Period that would have commenced on the date of such failure) in each case at
the applicable rate of interest for such Eurodollar Loans provided for herein
minus (ii) the amount of interest (as reasonably determined by such Lender)
which would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank Eurodollar
market. The agreements in this Section shall survive the termination of this
Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.15 Mitigation; Mandatory Assignment.
Each Lender shall use reasonable efforts to avoid or mitigate any increased
cost or suspension of the availability of an interest rate under Sections 3.9
through 3.14 inclusive to the greatest extent practicable (including
transferring the Loans to another lending office or affiliate of a Lender)
unless, in the opinion of such Lender, such efforts would be likely to have an
adverse effect upon it. In the event a Lender makes a request to the Borrowers
for additional payments in accordance with Sections 3.9, 3.10, 3.11, 3.12, 3.13
or 3.14 or a Lender becomes a Defaulting Lender, then, provided that no Default
or Event of Default has occurred and is continuing at such time, the Borrowers
may, at their own expense (such expense to include any transfer fee payable to
the Administrative Agent under Section 11.3(b) and any expense pursuant to
Section 3.14), and in their sole discretion, require such Lender to transfer and
assign in whole (but not in part), without recourse (in accordance with and
subject to the terms and conditions of Section 11.3(b)), all of its interests,
rights and obligations under this Credit Agreement to an assignee which shall
assume such assigned obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (a) such assignment shall not
conflict with any law, rule or regulation or order of any court or other
governmental authority and (b) the Borrowers or such assignee shall have paid to
the assigning Lender in immediately available funds the principal of and
interest accrued to the date of such payment on the portion of the Loans
hereunder held by such assigning Lender and all other amounts owed to such
assigning Lender hereunder, including amounts owed pursuant to Sections 3.9
through 3.14.
SECTION 4
GUARANTY
4.1 Guaranty of Payment.
Subject to Section 4.7 below, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Lender, the prompt payment of the
Obligations in full when due
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(whether at stated maturity, as a mandatory prepayment, by acceleration or
otherwise). This Guaranty is a guaranty of payment and not of collection and is
a continuing guaranty and shall apply to all Obligations whenever arising.
4.2 Obligations Unconditional.
The obligations of the Guarantors hereunder are absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Credit Documents or any other agreement or instrument referred to
therein, to the fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor. Each Guarantor agrees
that this Guaranty may be enforced by the Lenders without the necessity at any
time of resorting to or exhausting any other security or collateral and without
the necessity at any time of having recourse to the Notes or any other of the
Credit Documents or any collateral, if any, hereafter securing the Obligations
or otherwise and each Guarantor hereby waives the right to require the Lenders
to proceed against the Borrowers or any other Person (including a co-guarantor)
or to require the Lenders to pursue any other remedy or enforce any other right.
Each Guarantor further agrees that it shall have no right of subrogation,
indemnity, reimbursement or contribution against the Borrowers or any other
Guarantor of the Obligations for amounts paid under this Guaranty until such
time as the Lenders have been paid in full, all Commitments under the Credit
Agreement have been terminated and no Person or Governmental Authority shall
have any right to request any return or reimbursement of funds from the Lenders
in connection with monies received under the Credit Documents. Each Guarantor
further agrees that nothing contained herein shall prevent the Lenders from
suing on the Notes or any of the other Credit Documents or foreclosing its
security interest in or Lien on any collateral, if any, securing the Obligations
or from exercising any other rights available to it under this Credit Agreement,
the Notes, any other of the Credit Documents, or any other instrument of
security, if any, and the exercise of any of the aforesaid rights and the
completion of any foreclosure proceedings shall not constitute a discharge of
any of any Guarantor's obligations hereunder; it being the purpose and intent of
each Guarantor that its obligations hereunder shall be absolute, independent and
unconditional under any and all circumstances. Neither any 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 an
impairment, modification, change, release or limitation of the liability of the
Borrowers or by reason of the bankruptcy or insolvency of the Borrowers. Each
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance of by the
Administrative Agent or any Lender upon this Guarantee or acceptance of this
Guarantee. The Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon this Guarantee. All dealings between the Borrowers and
any of the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon this Guarantee. The Guarantors further
agree to all rights of set-off as set forth in Section 11.2.
4.3 Modifications.
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Each Guarantor agrees that (a) all or any part of the security now or
hereafter held for the Credit Party Obligations, if any, may be exchanged,
compromised or surrendered from time to time; (b) the Lenders shall not have any
obligation to protect, perfect, secure or insure any such security interests,
liens or encumbrances now or hereafter held, if any, for the Obligations or the
properties subject thereto; (c) the time or place of payment of the Obligations
may be changed or extended, in whole or in part, to a time certain or otherwise,
and may be renewed or accelerated, in whole or in part; (d) the Borrowers and
any other party liable for payment under the Credit Documents may be granted
indulgences generally; (e) any of the provisions of the Notes or any of the
other Credit Documents may be modified, amended or waived; (f) any party
(including any co-guarantor) liable for the payment thereof may be granted
indulgences or be released; and (g) any deposit balance for the credit of the
Borrowers or any other party liable for the payment of the Obligations or liable
upon any security therefor may be released, in whole or in part, at, before or
after the stated, extended or accelerated maturity of the Obligations, all
without notice to or further assent by such Guarantor, which shall remain bound
thereon, notwithstanding any such exchange, compromise, surrender, extension,
renewal, acceleration, modification, indulgence or release.
4.4 Waiver of Rights.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Guaranty by the Lenders and of
all extensions of credit to the Borrowers by the Lenders; (b) presentment and
demand for payment or performance of any of the Obligations; (c) protest and
notice of dishonor or of default (except as specifically required in the Credit
Agreement) with respect to the Obligations or with respect to any security
therefor; (d) notice of the Lenders obtaining, amending, substituting for,
releasing, waiving or modifying any security interest, lien or encumbrance, if
any, hereafter securing the Obligations, or the Lenders' subordinating,
compromising, discharging or releasing such security interests, liens or
encumbrances, if any; and (e) all other notices to which such Guarantor might
otherwise be entitled.
4.5 Reinstatement.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Lender
on demand for all reasonable costs and expenses (including, without limitation,
reasonable fees of counsel) incurred by the Administrative Agent or such Lender
in connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
4.6 Remedies.
The Guarantors agree that, as between the Guarantors, on the one hand, and
the Administrative Agent and the Lenders, on the other hand, the Obligations may
be declared to be forthwith due and payable as provided in Section 9 (and shall
be deemed to have become
45
automatically due and payable in the circumstances provided in Section 9)
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or preventing such Obligations from becoming automatically due and
payable) as against any other Person and that, in the event of such declaration
(or such Obligations being deemed to have become automatically due and payable),
such Obligations (whether or not due and payable by any other Person) shall
forthwith become due and payable by the Guarantors.
4.7 Limitation of Guaranty.
Notwithstanding any provision to the contrary contained herein or in any of
the other Credit Documents, to the extent the obligations of any Guarantor shall
be adjudicated to be invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of such Guarantor
hereunder shall be limited to the maximum amount that is permissible under
applicable law (whether federal or state and including, without limitation, the
Bankruptcy Code).
4.8 Rights of Contribution.
The Credit Parties agree among themselves that, in connection with payments
made hereunder, each Credit Party shall have contribution rights against the
other Credit Parties as permitted under applicable law. Such contribution
rights shall be subordinate and subject in right of payment to the obligations
of the Credit Parties under the Credit Documents and no Credit Party shall
exercise such rights of contribution until all Credit Party Obligations have
been paid in full and the Commitments terminated.
SECTION 5
CONDITIONS PRECEDENT
5.1 Closing Conditions.
The obligation of the Lenders to enter into this Credit Agreement and make
the initial Extensions of Credit is subject to satisfaction of the following
conditions:
(a) Executed Credit Documents. Receipt by the Administrative Agent
of duly executed copies of: (i) this Credit Agreement; (ii) the Notes; and
(iii) all other Credit Documents, each in form and substance reasonably
acceptable to the Administrative Agent in its sole discretion.
(b) Partnership Documents. With respect to each Credit Party that is
a partnership, receipt by the Administrative Agent of the following:
(i) Authorization. Authorization of the general partner(s) of
such Credit Party, as of the Closing Date, approving and adopting the
Credit Documents to be executed by such Credit Party and authorizing
the execution and delivery thereof.
46
(ii) Partnership Agreements. Certified copies of the partnership
agreement of such Credit Party, together with all amendments thereto.
(iii) Certificates of Good Standing or Existence.
Certificate of good standing or existence for such Credit Party issued
as of a recent date by its state of organization and each other state
where the failure to qualify or be in good standing could have a
Material Adverse Effect.
(iv) Incumbency. An incumbency certificate of the general
partner(s) of such Credit Party, certified by a secretary or assistant
secretary of such general partner to be true and correct as of the
Closing Date.
(c) Corporate Documents. With respect to each Credit Party that is a
corporation, receipt by the Administrative Agent of the following:
(i) Charter Documents. Copies of the articles or certificates
of incorporation or other charter documents of each such Credit Party
certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other jurisdiction
of its incorporation and certified by a secretary or assistant
secretary of such Credit Party to be true and correct as of the
Closing Date.
(ii) Bylaws. A copy of the bylaws of each such Credit Party
certified by a secretary or assistant secretary of such Credit Party
to be true and correct as of the Effective Date.
(iii) Resolutions. Copies of resolutions approving and
adopting the Credit Documents to which it is a party, the transactions
contemplated therein and authorizing execution and delivery thereof,
certified by a secretary or assistant secretary of such Credit Party
to be true and correct and in full force and effect as of the
Effective Date.
(iv) Good Standing. Copies of (A) certificates of good standing,
existence or their equivalent with respect to such Credit Party
certified as of a recent date by the appropriate Governmental
Authorities of the state or other jurisdiction of incorporation and
each other jurisdiction in which the failure to so qualify and be in
good standing could have a Material Adverse Effect and (B) to the
extent available, a certificate indicating payment of all corporate
franchise taxes certified as of a recent date by the appropriate
governmental taxing authorities.
(v) Incumbency. An incumbency certificate of such Credit Party
certified by a secretary or assistant secretary of such Credit Party
to be true and correct as of the Effective Date.
(d) Limited Liability Company Documents. With respect to each Credit
Party that is a limited liability company, receipt by the Administrative
Agent of the following:
47
(i) Certificate of Formation. A copy of the certificate of
formation of such Credit Party certified to be true and complete by
the appropriate Governmental Authority of the state or jurisdiction of
its formation and certified by the sole member of such Credit Party to
be true and correct as of the Closing Date.
(ii) LLC Agreement. A copy of the LLC Agreement of such Credit
Party certified by the sole member of such Credit Party to be true and
correct as of the Closing Date.
(iii) Resolutions. Copies of resolutions approving and
adopting the Credit Documents to which it is a party, the transactions
contemplated therein and authorizing execution and delivery thereof.
(iv) Good Standing. Copies of certificates of good standing,
existence of their equivalent with respect to such Credit Party
certified as of a recent date by the appropriate Governmental
Authorities of the state or other jurisdiction of formation and each
other jurisdiction in which the failure to so qualify and be in good
standing could have a Material Adverse Effect.
(e) Trust Documents. With respect to each Credit Party that is a
REIT, receipt by the Administrative Agent of the following:
(i) Declaration of Trust. A copy of the Declaration of Trust of
such Credit Party certified to be true and complete by the appropriate
Governmental Authority of the state or jurisdiction of its formation
and certified by the trustee of such Credit Party to be true and
correct as of the Closing Date.
(ii) Bylaws. A copy of the Bylaws of such Credit Party certified
by the trustee of such Credit Party to be true and complete as of the
Closing Date.
(iii) Resolutions. Copies of the resolutions of the Board of
Trustees of such Credit Party approving and adopting the Credit
Documents to which it is a party, the transactions contemplated
therein and authorizing execution and delivery thereof.
(iv) Good Standing. Copies of certificates of good standing,
existence of their equivalent with respect to such Credit Party
certified as of a recent date by the appropriate Governmental
Authorities of the state or other jurisdiction of formation and each
other jurisdiction in which the failure to so qualify and be in good
standing could have a Material Adverse Effect.
(f) Financial Statements. Receipt and approval by the Lenders of:
(i) the consolidated financial statements of the Credit Parties and their
Subsidiaries for each of the three years ending December 31, 1994, 1995 and
1996, to the extent available, including balance sheets and income and cash
flow statements, audited by nationally recognized
48
independent public accountants and containing an unqualified opinion of
such firm that such statements present fairly, in all material respects,
the consolidated financial position and results of operations of such
Person, and are prepared in conformity with GAAP, (ii) interim consolidated
financial statements of the Credit Parties and their Subsidiaries for the
nine months ending September 30, 1997, including balance sheets and income
and cash flow statements, accompanied by a certificate of the chief
financial officer of BRT to the effect that such annual Financial
Statements fairly present in all material respects the financial condition
of the Credit Parties and their Subsidiaries and have been prepared in
accordance with GAAP, subject to changes resulting from audit and normal
year-end audit adjustments and (iii) as requested by the Administrative
Agent, historical information on the Existing Properties, certified as true
and correct by the chief financial officer of BRT.
(g) Financial Projections and Other Information. Receipt and
approval by the Lenders of (i) financial projections for the Credit Parties
and their Subsidiaries on a consolidated basis and (ii) summary financial
projections for each Property, for the calendar year ending 1998, in a form
acceptable to the Lenders, and such other financial information as the
Lenders may require.
(h) Opinion of Counsel. Receipt by the Administrative Agent of
opinions (which shall cover, among other things, authority, legality,
validity, binding effect and enforceability), satisfactory to the
Administrative Agent, addressed to the Administrative Agent on behalf of
the Lenders and dated as of the Closing Date, from legal counsel to the
Credit Parties.
(i) Material Adverse Effect. There shall not have occurred a change
since September 30, 1997 that has had or could reasonably be expected to
have a Material Adverse Effect.
(j) Litigation. There shall not exist any pending or threatened
action, suit, investigation or proceeding against a Credit Party or any of
their Subsidiaries that would have or would reasonably be expected to have
a Material Adverse Effect.
(k) Officer's Certificates. The Administrative Agent shall have
received a certificate on behalf of Credit Parties as of the Closing Date
stating that (i) the Credit Parties and each of their Subsidiaries are in
compliance with all existing material financial obligations, (ii) no
action, suit, investigation or proceeding is pending or threatened in any
court or before any arbitrator or governmental instrumentality that
purports to effect a Credit Party or any transaction contemplated by the
Credit Documents, if such action, suit, investigation or proceeding could
have or could be reasonably expected to have a Material Adverse Effect,
(iii) the financial statements and information delivered pursuant to
Section 5.1(f) and (g) were prepared in good faith and using reasonable
assumptions and (iv) immediately after giving effect to this Credit
Agreement, the other Credit Documents and all the transactions contemplated
therein to occur on such date, (A) each of the Credit Parties is Solvent,
(B) no Default or Event of Default exists, (C) all representations and
warranties contained herein and in the other Credit Documents are true and
correct in all
49
material respects, and (D) the Credit Parties and their Subsidiaries are in
compliance with each of the financial covenants set forth in Section 7.2.
(l) Fees and Expenses. Payment by the Borrowers of all fees and
expenses owed by them to the Lenders and the Administrative Agent,
including, without limitation, payment to the Administrative Agent of the
fees set forth herein and in the Fee Letter.
(m) Borrowing Base Certificate. Receipt by the Administrative Agent
of a Borrowing Base Certificate, in the form of Exhibit 7.1(c), dated as
of the Closing Date.
(n) Consents and Approvals. All governmental, shareholder, partner
and third-party consents and approvals necessary or, in the opinion of the
Administrative Agent, desirable in connection with the Loans and the
transactions contemplated under the Credit Documents shall have been duly
obtained and shall be in full force and effect, and a copy of each such
consent or approval shall have been delivered to the Administrative Agent.
(o) Due Diligence. Completion by the Lenders of all due diligence
with respect to the Credit Parties and their Subsidiaries, including, but
not limited to, a review of (i) all existing Funded Debt and (ii) each
Existing Property.
(p) Existing Credit Agreement. Receipt by the Administrative Agent
of satisfactory evidence of the repayment of all loans and obligations
under the Existing Credit Agreement and the termination of the commitments
thereunder.
(q) Other. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably and timely requested
by any Lender, including, but not limited to, information regarding
litigation, tax, accounting, labor, insurance, pension liabilities (actual
or contingent), real estate leases, material contracts, debt agreements,
property ownership and contingent liabilities of the Credit Parties and
their Subsidiaries.
5.2 Conditions to All Extensions of Credit.
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make Loans nor shall an Issuing Lender be
required to issue or extend a Letter of Credit unless:
(a) Delivery of Notice. The Borrowers shall have delivered (i) in
the case of a Loan, a Notice of Borrowing, duly executed and completed, by
the time specified in Section 2.1 and (ii) in the case of any Letter of
Credit, the Issuing Lender shall have received an appropriate request for
issuance in accordance with the provisions of Section 2.2.
(b) Representations and Warranties. The representations and
warranties made by the Credit Parties in any Credit Document are true and
correct in all material respects at and as if made as of such date except
to the extent they expressly relate to an earlier date.
50
(c) No Default. No Default or Event of Default shall exist or be
continuing either prior to or after giving effect thereto.
(d) Availability. Immediately after giving effect to the making of
the requested Revolving Loan (and the application of the proceeds thereof),
or the issuance of a Letter of Credit, as the case may be, (i) the sum of
the Revolving Loans outstanding plus LOC Obligations outstanding shall not
exceed the lesser of (A) the Revolving Committed Amount less, for any
Property under construction and development that is less than 50%
preleased, the construction and development costs remaining to be incurred
for such Property unless and until outside construction financing for the
project is obtained (plus the amount of the requested Revolving Loan if
such Revolving Loan is being used for such construction and development
costs) and (B) the Borrowing Base, and (ii) the aggregate principal amount
of Revolving Loans advanced for construction and development of Properties
that are not preleased in excess of 85% shall not exceed (A) for such
Properties that are less than 50% preleased, $20,000,000 and (B) for all
such Properties, $100,000,000.
(e) Development and Construction. If (i) the proceeds of the
requested Revolving Loan are to be used for development and construction of
a Property, the Borrowers have notified the Administrative Agent with
respect thereto and (ii) if, after giving effect to the making of the
requested Revolving Loan, the aggregate principal amount of outstanding
Revolving Loans advanced for construction and development of Properties
exceeds $30,000,000, the Borrowers must have received the approval of the
Required Lenders.
(f) Restrictions on Loans. After giving effect to the making of the
requested Revolving Loan, the Borrowers shall be in compliance with the
terms of Section 2.1(f).
The delivery of each Notice of Borrowing shall constitute a representation and
warranty by the Borrowers of the correctness of the matters specified in
subsections (b), (c), (d) and (e) above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Administrative Agent and each
Lender that:
6.1 Financial Condition.
The financial statements delivered to the Lenders pursuant to Section
5.1(d) and Section 7.1(a) and (b): (a) have been prepared in accordance with
GAAP and (b) present fairly the consolidated financial condition, results of
operations and cash flows of the Credit Parties and their Subsidiaries as of
such date and for such periods. Since September 30, 1997, there has been no
sale, transfer or other disposition by any Credit Party or any of their
Subsidiaries of any material part of the business or property of the Credit
Parties and their Subsidiaries, taken as a whole, and no purchase or other
acquisition by any of them of any business or property (including any capital
51
stock of any other Person) material in relation to the consolidated financial
condition of the Credit Parties and their Subsidiaries, taken as a whole, in
each case, which, is not (i) reflected in the most recent financial statements
delivered to the Lenders pursuant to Section 5.1(d) and Section 7.1 or in the
notes thereto or (ii) otherwise permitted by the terms of this Credit Agreement
and communicated to the Administrative Agent.
6.2 No Material Change.
Since the later of September 30, 1997 or the date of the last Revolving
Loan made under this Credit Agreement, there has been no development or event
relating to or affecting a Credit Party or any of its Subsidiaries which has had
or would be reasonably expected to have a Material Adverse Effect.
6.3 Organization and Good Standing.
Each Credit Party (a) is either a partnership, a corporation, a limited
liability company or a REIT duly organized, validly existing and in good
standing under the laws of the State (or other jurisdiction) of its organization
or formation, (b) is duly qualified and in good standing as a foreign
partnership, a foreign corporation, a foreign limited liability company or a
foreign REIT and authorized to do business in every other jurisdiction unless
the failure to be so qualified, in good standing or authorized would not have or
would not be expected to have a Material Adverse Effect and (c) has the power
and authority to own its properties and to carry on its business as now
conducted and as proposed to be conducted.
6.4 Due Authorization.
Each Credit Party (a) has the power and authority to execute, deliver and
perform this Credit Agreement and the other Credit Documents to which it is a
party and to incur the obligations herein and therein provided for and (b) is
duly authorized to, and has been authorized by all necessary action, to execute,
deliver and perform this Credit Agreement and the other Credit Documents to
which it is a party.
6.5 No Conflicts.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor the performance of or
compliance with the terms and provisions thereof by a Credit Party will (a)
violate or conflict with any provision of its organizational documents, (b)
violate, contravene or materially conflict with any Requirement of Law or any
other law, regulation (including, without limitation, Regulation U or Regulation
X), order, writ, judgment, injunction, decree or permit applicable to it, (c)
violate, contravene or conflict with contractual provisions of, or cause an
event of default under, any indenture, loan agreement, mortgage, deed of trust,
contract or other agreement or instrument to which it is a party or by which it
may be bound, the violation of which would have or would be reasonably expected
to have a Material Adverse Effect, or (d) result in or require the creation of
any Lien upon or with respect to its properties.
52
6.6 Consents.
Except for consents, approvals and authorizations which have been obtained,
no consent, approval, authorization or order of, or filing, registration or
qualification with, any court or Governmental Authority or third party in
respect of any Credit Party is required in connection with the execution,
delivery or performance of this Credit Agreement or any of the other Credit
Documents by such Credit Party.
6.7 Enforceable Obligations.
This Credit Agreement and the other Credit Documents have been duly
executed and delivered and constitute legal, valid and binding obligations of
each Credit Party enforceable against such Credit Party in accordance with their
respective terms, except as may be limited by bankruptcy or insolvency laws or
similar laws affecting creditors' rights generally or by general equitable
principles.
6.8 No Default.
No Credit Party, nor any of its Subsidiaries, is in default in any respect
under any contract, lease, loan agreement, indenture, mortgage, security
agreement or other agreement or obligation to which it is a party or by which
any of its properties is bound which default would have or would be reasonably
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred or exists except as previously disclosed in writing to the Lenders.
6.9 Ownership.
Each Credit Party and its Subsidiaries is the owner of, and has good and
marketable title to, all of its respective assets and none of such assets is
subject to any Lien other than Permitted Liens. As of the Closing Date, each of
Brandywine Holdings II, Inc. and Brandywine Holdings III, Inc. owns no assets
and will be dissolved in the near future.
6.10 Indebtedness.
The Credit Parties and their Subsidiaries have no Indebtedness except as
otherwise permitted by this Credit Agreement.
6.11 Litigation.
There are no actions, suits or legal, equitable, arbitration or
administrative proceedings, pending or, to the knowledge of any Credit Party,
threatened against, a Credit Party or any of its Subsidiaries which would have
or would be reasonably expected to have a Material Adverse Effect.
53
6.12 Taxes.
Each Credit Party, and each of its Subsidiaries, has filed, or caused to be
filed, all tax returns (federal, state, local and foreign) required to be filed
and has paid (a) all amounts of taxes shown thereon to be due (including
interest and penalties) and (b) all other taxes, fees, assessments and other
governmental charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing by it, except for such taxes (i) which are
not yet delinquent or (ii) that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP. No Credit Party is aware of any proposed tax assessments
against it or any of its Subsidiaries.
6.13 Compliance with Law.
Each Credit Party, and each of its Subsidiaries, is in compliance with all
Requirements of Law and all other laws, rules, regulations, orders and decrees
(including without limitation Environmental Laws) applicable to it, or to its
properties, unless such failure to comply would not have or would not be
reasonably expected to have a Material Adverse Effect. No Requirement of Law
would be reasonably expected to cause a Material Adverse Effect.
6.14 Compliance with ERISA.
Except as would not result in or be reasonably expected to result in a
Material Adverse Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred,
and, to the best of each Credit Party's, each Subsidiary of a Credit
Party's and each ERISA Affiliate's knowledge, no event or condition has
occurred or exists as a result of which any ERISA Event could reasonably be
expected to occur, with respect to any Plan; (ii) no "accumulated funding
deficiency," as such term is defined in Section 302 of ERISA and Section
412 of the Code, whether or not waived, has occurred with respect to any
Plan; (iii) each Plan has been maintained, operated, and funded in
compliance with its own terms and in material compliance with the
provisions of ERISA, the Code, and any other applicable federal or state
laws; and (iv) no Lien in favor or the PBGC or a Plan has arisen or is
reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as
defined in Section 4001(a)(16) of ERISA), whether or not vested, under each
Single Employer Plan, as of the last annual valuation date prior to the
date on which this representation is made or deemed made (determined, in
each case, in accordance with Financial Accounting Standards Board
Statement 87, utilizing the actuarial assumptions used in such Plan's most
recent actuarial valuation report), did not exceed as of such valuation
date the fair market value of the assets of such Plan.
(c) No Credit Party, Subsidiary of a Credit Party or ERISA Affiliate
has incurred, or, to the best of each such party's knowledge, is reasonably
expected to incur, any
54
withdrawal liability under ERISA to any Multiemployer Plan or Multiple
Employer Plan. No Credit Party, Subsidiary of a Credit Party or ERISA
Affiliate would become subject to any withdrawal liability under ERISA if
any such party were to withdraw completely from all Multiemployer Plans and
Multiple Employer Plans as of the valuation date most closely preceding the
date on which this representation is made or deemed made. No Credit Party,
Subsidiary of a Credit Party or ERISA Affiliate has received any
notification that any Multiemployer Plan is in reorganization (within the
meaning of Section 4241 of ERISA), is insolvent (within the meaning of
Section 4245 of ERISA), or has been terminated (within the meaning of Title
IV of ERISA), and no Multiemployer Plan is, to the best of each such
party's knowledge, reasonably expected to be in reorganization, insolvent,
or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility
has occurred with respect to a Plan which has subjected or may subject any
Credit Party, any Subsidiary of a Credit Party or any ERISA Affiliate to
any liability under Sections 406, 409, 502(i), or 502(l) of ERISA or
Section 4975 of the Code, or under any agreement or other instrument
pursuant to which any Credit Party, any Subsidiary of a Credit Party or any
ERISA Affiliate has agreed or is required to indemnify any person against
any such liability.
(e) No Credit Party, Subsidiary of a Credit Party nor any of their
ERISA Affiliates has material liability with respect to "expected
post-retirement benefit obligations" within the meaning of the Financial
Accounting Standards Board Statement 106. Each Plan which is a welfare
plan (as defined in Section 3(1) of ERISA) to which Sections 601-609 of
ERISA and Section 4980B of the Code apply has been administered in
compliance in all material respects with such sections.
6.15 Organization Structure/Subsidiaries.
As of the Closing Date, (a) Schedule 6.15 is a complete and accurate
organization chart of the Credit Parties and their Subsidiaries, and (b) no
Credit Party has any Subsidiaries except as set forth on Schedule 6.15.
6.16 Use of Proceeds; Margin Stock.
The proceeds of the Loans hereunder will be used solely for the purposes
specified in Section 7.10. None of the proceeds of the Loans will be used in a
manner that would violate Regulation U, Regulation X, Regulation G or Regulation
T.
6.17 Government Regulation.
No Credit Party, nor any of its Subsidiaries, is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Investment Company Act of 1940 or the Interstate Commerce Act, each as amended.
In addition, no Credit Party, nor any of its Subsidiaries, is (a) an "investment
company" registered or required to be registered under the Investment Company
Act of 1940, as amended, or controlled by such a company, or (b) a "holding
company," or a "Subsidiary company" of a "holding
55
company," or an "affiliate" of a "holding company" or of a "Subsidiary" or a
"holding company," within the meaning of the Public Utility Holding Company Act
of 1935, as amended. No director, executive officer or principal shareholder of
a Credit Party or any of its Subsidiaries is a director, executive officer or
principal shareholder of any Lender. For the purposes hereof the terms
"director," "executive officer" and "principal shareholder" (when used with
reference to any Lender) have the respective meanings assigned thereto in
Regulation O issued by the Board of Governors of the Federal Reserve System.
6.18 Environmental Matters.
(a) Except as set forth on Schedule 6.18, to the knowledge of the
Credit Parties:
(i) Each of the Properties and all operations at the
Properties are in material compliance with all applicable
Environmental Laws, and there is no violation of any Environmental Law
with respect to the Properties or the businesses operated by a Credit
Party or any of its Subsidiaries (the "Businesses"), and there are no
conditions relating to the Businesses or Properties that would be
reasonably expected to give rise to liability under any applicable
Environmental Laws.
(ii) No Credit Party, nor any of its Subsidiaries, has
received any written notice of, or inquiry from any Governmental
Authority regarding, any violation, alleged violation, non-compliance,
liability or potential liability regarding Hazardous Materials or
compliance with Environmental Laws with regard to any of the
Properties or the Businesses, nor does any Credit Party or any of its
Subsidiaries have knowledge that any such notice is being threatened.
(iii) Hazardous Materials have not been transported or
disposed of from the Properties, or generated, treated, stored or
disposed of at, on or under any of the Properties or any other
location, in each case by, or on behalf or with the permission of, any
Credit Party or any of its Subsidiaries in a manner that would
reasonably be expected to give rise to liability under any applicable
Environmental Law.
(iv) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of any Credit
Party or any of its Subsidiaries, threatened, under any Environmental
Law to which any Credit Party or any of its Subsidiaries is or will be
named as a party, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any
Environmental Law with respect to any Credit Party or any of its
Subsidiaries, the Properties or the Businesses, in any amount
reportable under the federal Comprehensive Environmental Response,
Compensation and Liability Act or any analogous state law, except
releases in compliance with any Environmental Laws.
(v) There has been no release or threat of release of
Hazardous Materials at or from the Properties, or arising from or
related to the operations (including, without limitation, disposal) of
a Credit Party or any of its Subsidiaries
56
in connection with the Properties or otherwise in connection with the Businesses
except in compliance with Environmental Laws.
(vi) None of the Properties contains, or to the best of our
knowledge has previously contained, any Hazardous Materials at, on or
under the Properties in amounts or concentrations that, if released,
constitute or constituted a violation of, or could give rise to
liability under, Environmental Laws.
(vii) No Credit Party, nor any of its Subsidiaries, has
assumed any liability of any Person (other than another Borrower)
under any Environmental Law.
(b) Each Credit Party, and each of its Subsidiaries, has adopted
procedures that are designed to (i) ensure that each such party, any of its
operations and each of the properties owned or leased by such party remains
in compliance with applicable Environmental Laws and (ii) minimize any
liabilities or potential liabilities that each such party, any of its
operations and each of the properties owned or leased by each such party
may have under applicable Environmental Laws.
6.19 Solvency.
Each Credit Party, is and, after consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.
6.20 Investments.
All Investments of the Credit Parties and their Subsidiaries are Permitted
Investments.
6.21 Location of Properties.
As of the Closing Date, set forth on Schedule 6.21 is a list of all
Properties (with street address, county and state where located) and the owner
of such Property.
6.22 Disclosure.
Neither this Credit Agreement nor any financial statements delivered to the
Lenders nor any other document, certificate or statement furnished to the
Lenders by or on behalf of any Credit Party in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein or herein not misleading in light of the circumstances in which made;
provided, however, that the Credit Parties make no representation or warranty
regarding the information delivered pursuant to Section 7.1(i).
57
6.23 Licenses, etc.
The Credit Parties and their Subsidiaries have obtained, and hold in full
force and effect, all franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights of way and
other rights, consents and approvals which are necessary for the operation of
their respective businesses as presently conducted, except where the failure to
obtain the same would not have or would not reasonably be expected to have a
Material Adverse Effect.
6.24 No Burdensome Restrictions.
No Credit Party, nor any of its Subsidiaries, is a party to any agreement
or instrument or subject to any other obligation or any charter or corporate
restriction or any provision of any applicable law, rule or regulation which,
individually or in the aggregate, would have or would be reasonably expected to
have a Material Adverse Effect.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans and LOC Obligations, together with
interest and fees and other obligations then due and payable hereunder, have
been paid in full and the Commitments and Letters of Credit hereunder shall have
terminated:
7.1 Information Covenants.
The Borrowers will furnish, or cause to be furnished, to the Administrative
Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in any
event within 90 days after the close of each fiscal year of the Credit
Parties, a consolidated balance sheet and income statement of the Credit
Parties and their Subsidiaries as of the end of such fiscal year, together
with related consolidated statements of operations and retained earnings
and of cash flows for such fiscal year, setting forth in comparative form
consolidated figures for the preceding fiscal year, all such financial
information described above to be in reasonable form and detail and audited
by independent certified public accountants of recognized national standing
reasonably acceptable to the Administrative Agent and whose opinion shall be
to the effect that such financial statements have been prepared in
accordance with GAAP (except for changes with which such accountants concur)
and shall not be limited as to the scope of the audit or qualified in any
manner.
(b) Quarterly Financial Statements. As soon as available, and in any
event within 45 days after the close of each fiscal quarter of the Credit
Parties, a consolidated balance sheet and income statement of the Credit
Parties and their Subsidiaries, as of the end of such fiscal quarter,
together with related consolidated statements of operations and retained
58
earnings and of cash flows for such fiscal quarter in each case setting
forth in comparative form consolidated figures for (A) the corresponding
period of the preceding fiscal year and (B) management's proposed budget
for such period, all such financial information described above to be in
reasonable form and detail and reasonably acceptable to the Administrative
Agent, and accompanied by a certificate of the chief financial officer of
BOP to the effect that such quarterly financial statements fairly present
in all material respects the financial condition of the Credit Parties and
their Subsidiaries and have been prepared in accordance with GAAP, subject
to changes resulting from audit and normal year-end audit adjustments.
(c) Borrowing Base Certificate. As soon as available and in any
event within 45 days after the end of each fiscal quarter of the Credit
Parties, a Borrowing Base Certificate in the form of Exhibit 7.1(c).
(d) Officer's Certificate. At the time of delivery of the financial
statements provided for in Sections 7.1(a) and 7.1(b) above, a certificate
of the chief financial officer of BRT, substantially in the form of Exhibit
7.1(d), (i) demonstrating compliance with the financial covenants contained
in Section 7.2 by calculation thereof as of the end of each such fiscal
period, (ii) stating that no Default or Event of Default exists, or if any
Default or Event of Default does exist, specifying the nature and extent
thereof and what action the Borrowers propose to take with respect thereto
and (iii) updating Schedule 6.15 and Schedule 6.21 as appropriate.
(e) Accountant's Certificate. Within the period for delivery of the
annual financial statements provided in Section 7.1(a), a certificate of
the accountants conducting the annual audit stating that they have reviewed
this Credit Agreement and stating further whether, in the course of their
audit, they have become aware of any Default or Event of Default and, if
any such Default or Event of Default exists, specifying the nature and
extent thereof.
(f) Annual Information and Projections. Within 30 days after the end
of each fiscal year of the Credit Parties, all such financial information
regarding the Credit Parties and their Subsidiaries and specifically
regarding the Properties, as the Administrative Agent shall reasonably
request, including, but not limited to, partnership and joint venture
agreements, property cash flow projections, property budgets, actual and
budgeted capital expenditures, operating statements (current year and
immediately preceding year, if the Property existed as a Property in the
immediately preceding year), mortgage information, rent rolls, lease
expiration reports, leasing status reports, note payable summary, bullet
note summary, equity funding requirements, contingent liability summary,
line of credit summary, line of credit collateral summary, wrap note or
note receivable summary, schedule of outstanding letters of credit, summary
of cash and cash equivalents, projection of management and leasing fees and
overhead budgets.
(g) Auditor's Reports. Promptly upon receipt thereof, a copy of any
"management letter" submitted by independent accountants to any Credit
Party or any of its
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Subsidiaries in connection with any annual, interim or special audit of the
books of such Credit Party or any of its Subsidiaries.
(h) Reports. Promptly upon transmission or receipt thereof, (i)
copies of any filings and registrations with, and reports to or from, the
Securities and Exchange Commission, or any successor agency, and copies of
all financial statements, proxy statements, notices and reports as any
Credit Party or any of its Subsidiaries shall send to its shareholders or
partners generally, (ii) copies of all income tax returns filed by a Credit
Party and (iii) upon the written request of the Administrative Agent, all
reports and written information to and from the United States Environmental
Protection Agency, or any state or local agency responsible for
environmental matters, the United States Occupational Health and Safety
Administration, or any state or local agency responsible for health and
safety matters, or any successor agencies or authorities concerning
environmental, health or safety matters; provided, however, that if any
such transmissions are done electronically, the Borrowers shall instead
promptly notify the Administrative Agent of same and provide information on
how to retrieve such information.
(i) Market Information. No later than the thirtieth day following
the end of the second and the fourth fiscal quarter of each fiscal year of
BRT, the Borrowers shall obtain from reliable sources market information
for each SMSA in which an Eligible Property is located and provide copies
of such market information to the Administrative Agent.
(j) Notices. Upon a Credit Party obtaining knowledge thereof, such
Credit Party will give written notice to the Administrative Agent
immediately of (i) the occurrence of an event or condition consisting of a
Default or Event of Default, specifying the nature and existence thereof
and what action the Credit Parties propose to take with respect thereto,
and (ii) the occurrence of any of the following with respect to any Credit
Party or any of its Subsidiaries (A) the pendency or commencement of any
litigation, arbitral or governmental proceeding against any Credit Party or
any of its Subsidiaries which if adversely determined would have or would
be reasonably expected to have a Material Adverse Effect, (B) the
institution of any proceedings against any Credit Party or any of its
Subsidiaries with respect to, or the receipt of notice by such Person of
potential liability or responsibility for violation, or alleged violation
of any federal, state or local law, rule or regulation, including but not
limited to, Environmental Laws, the violation of which would have or would
be reasonably expected to have a Material Adverse Effect or (C) the
occurrence of any default or nonpayment of nonrecourse Indebtedness of a
Credit Party in an aggregate principal amount in excess of $10,000,000.
(k) ERISA. Upon a Credit Party or any ERISA Affiliate obtaining
knowledge thereof, the Credit Parties will give written notice to the
Administrative Agent promptly (and in any event within five Business Days)
of: (i) any event or condition, including, but not limited to, any
Reportable Event, that constitutes, or might reasonably lead to, a ERISA
Event; (ii) with respect to any Multiemployer Plan, the receipt of notice
as prescribed in ERISA or otherwise of any withdrawal liability assessed
against a Credit Party or any ERISA Affiliate, or of a determination that
any Multiemployer Plan is in reorganization or insolvent (both within the
meaning of Title IV of ERISA); (iii) the failure to make full
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payment on or before the due date (including extensions) thereof of all
amounts which a Credit Party or any ERISA Affiliate is required to
contribute to each Plan pursuant to its terms and as required to meet the
minimum funding standard set forth in ERISA and the Code with respect
thereto; or (iv) any change in the funding status of any Plan that could
have a Material Adverse Effect; together, with a description of any such
event or condition or a copy of any such notice and a statement by the
chief financial officer of a Credit Party briefly setting forth the details
regarding such event, condition, or notice, and the action, if any, which
has been or is being taken or is proposed to be taken by a Credit Party or
any ERISA Affiliate with respect thereto. Promptly upon request, the
Credit Parties shall furnish the Administrative Agent and the Lenders with
such additional information concerning any Plan as may be reasonably
requested, including, but not limited to, copies of each annual
report/return (Form 5500 series), as well as all schedules and attachments
thereto required to filed with the Department of Labor and/or the Internal
Revenue Service pursuant to ERISA and the Code, respectively, for each
"plan year" (within the meaning of Section 3(39) of ERISA).
(l) Environmental.
(i) Subsequent to a notice from any Governmental Authority
that would reasonably cause concern or during the existence of an
Event of Default, and upon the written request of the Administrative
Agent, the Credit Parties will furnish or cause to be furnished to the
Administrative Agent, at the Credit Parties' expense, an updated
report of an environmental assessment of reasonable scope, form and
depth, including, where appropriate, invasive soil or groundwater
sampling, by a consultant reasonably acceptable to the Administrative
Agent as to the nature and extent of the presence of any Hazardous
Materials on any Property and as to the compliance by the Credit
Parties and with Environmental Laws. If the Credit Parties fail to
deliver such an environmental report within seventy-five (75) days
after receipt of such written request then the Administrative Agent
may arrange for same, and the Credit Parties hereby grant to the
Administrative Agent and its representatives access to the Properties
and a license of a scope reasonably necessary to undertake such an
assessment (including, where appropriate, invasive soil or groundwater
sampling). The reasonable cost of any assessment arranged for by the
Administrative Agent pursuant to this provision will be payable by the
Credit Parties on demand.
(ii) Each of the Credit Parties and their Subsidiaries will
conduct and complete all investigations, studies, sampling, and
testing and all remedial, removal, and other actions necessary to
address all Hazardous Materials on, from, or affecting any Property to
the extent necessary to be in compliance with all Environmental Laws
and all other applicable federal, state, and local laws, regulations,
rules and policies and with the orders and directives of all
Governmental Authorities exercising jurisdiction over such Property to
the extent any failure would have or would be reasonably expected to
have a Material Adverse Effect.
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(m) Other Information. With reasonable promptness upon any such
request, such other information regarding the Properties or regarding the
business, assets or financial condition of the Credit Parties and their
Subsidiaries as the Administrative Agent or any Lender may reasonably
request.
7.2 Financial Covenants.
(a) Debt Service Coverage Ratio. The Debt Service Coverage Ratio, as
of the end of each fiscal quarter of the Credit Parties, shall be greater
than or equal to 1.50 to 1.0.
(b) Interest Coverage Ratio. The Interest Coverage Ratio, as of the
end of each fiscal quarter of Credit Parties for the twelve month period
ending on such date, shall be greater than or equal to 2.25 to 1.0.
(c) Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio, as
of the end of each fiscal quarter of the Credit Parties for the twelve
month period ending on such date, shall be greater than or equal to 1.75 to
1.0.
(d) Net Worth. At all times, the Net Worth of the Credit Parties and
their Subsidiaries on a consolidated basis shall be greater than or equal
to the sum of (i) $300,000,000 plus (ii) 85% of the Net Cash Proceeds from
all Equity Issuances (other than Equity Issuances referred to in the
following subclause (iii)) plus (iii) 85% of the actual increase in Net
Worth (if any) resulting from an Equity Issuance made in connection with an
Incentive Stock Plan.
(e) Leverage Ratio. Subsequent to the earlier of (i) termination of
the Bridge Facility or (ii) 210 days following the Closing Date, the
Leverage Ratio, as of the end of each fiscal quarter of the Credit Parties,
shall be less than or equal to .55 to 1.0.
(f) Unsecured Funded Debt Ratio. Subsequent to the earlier of (i)
termination of the Bridge Facility or (ii) 210 days following the Closing
Date, the ratio of (A) Unsecured Funded Debt to (b) the sum of Gross
Implied Asset Values of all Unsecured Properties, as of the end of each
fiscal quarter of the Credit Parties, shall be less than or equal to .55 to
1.0.
7.3 Preservation of Existence.
Each of the Credit Parties will do all things necessary to preserve and
keep in full force and effect its existence, rights, franchises and authority
except as permitted by Section 8.4; provided that a Credit Party may dissolve if
it has no assets at the time of dissolution. Without limiting the generality of
the foregoing, BRT will do all things necessary to maintain its status as a
REIT.
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7.4 Books and Records.
Each of the Credit Parties will, and will cause its Subsidiaries to, keep
complete and accurate books and records of its transactions in accordance with
good accounting practices on the basis of GAAP (including the establishment and
maintenance of appropriate reserves).
7.5 Compliance with Law.
Each of the Credit Parties will, and will cause its Subsidiaries to, comply
in all material respects with all material laws, rules, regulations and orders,
and all applicable material restrictions imposed by all Governmental
Authorities, applicable to it and its property (including, without limitation,
Environmental Laws and ERISA).
7.6 Payment of Taxes and Other Indebtedness.
Each of the Credit Parties will, and will cause its Subsidiaries to, pay,
settle or discharge (a) all taxes, assessments and governmental charges or
levies imposed upon it, or upon its income or profits, or upon any of its
properties, before they shall become delinquent, (b) all lawful claims
(including claims for labor, materials and supplies) which, if unpaid, might
give rise to a Lien upon any of its properties, and (c) except as prohibited
hereunder, all of its other Indebtedness as it shall become due; provided,
however, that a Credit Party or any of its Subsidiaries shall not be required to
pay any such tax, assessment, charge, levy, claim or Indebtedness which is being
contested in good faith by appropriate proceedings and as to which adequate
reserves therefor have been established in accordance with GAAP, unless the
failure to make any such payment (i) would give rise to an immediate right to
foreclose on a Lien securing such amounts or (ii) would have a Material Adverse
Effect.
7.7 Insurance.
Each of the Credit Parties will, and will cause its Subsidiaries to, at all
times maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) in such amounts, covering such risks and liabilities and
with such deductibles or self-insurance retentions as are in accordance with
normal industry practice.
7.8 Maintenance of Assets.
Each of the Credit Parties will maintain and preserve its Properties and
all other assets in good repair, working order and condition, normal wear and
tear excepted, and will make, or cause to be made, in the Properties and other
assets, from time to time, all repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto as may be needed or proper, to
the extent and in the manner customary for companies in similar businesses.
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7.9 Performance of Obligations.
Each of the Credit Parties will perform in all material respects all of its
obligations under the terms of all material agreements, indentures, mortgages,
security agreements or other debt instruments to which it is a party or by which
it is bound.
7.10 Use of Proceeds.
The Credit Parties will use the proceeds of the Loans solely (a) to acquire
Properties, (b) to renovate existing Properties, (c) to develop and construct
Properties subject to the limitations set forth in this Credit Agreement and (d)
for general working capital in the ordinary course (including the payment of
dividends if such payment is otherwise in compliance with the terms of this
Credit Agreement); provided that it is understood that proceeds of Loans may not
be used to acquire undeveloped land unless such land is adjacent or contiguous
with other assets being acquired or already owned or such land is part of a
construction project approved by the Required Lenders and has all necessary
local permits and approvals and construction will commence within six months of
acquisition. The Credit Parties will use the Letters of Credit solely for the
purposes set forth in Section 2.2(a).
7.11 Audits/Inspections.
Upon reasonable notice and during normal business hours, each Credit Party
will, and will cause its Subsidiaries to, permit representatives appointed by
the Administrative Agent, including, without limitation, independent
accountants, agents, attorneys and appraisers to visit and inspect such Credit
Party's or such Subsidiary's property, including, without limitation, the
Properties, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains and shall permit the Administrative Agent or its
representatives to investigate and verify the accuracy of information provided
to the Lenders, including, without limitation, the performance of valuation
reviews from time to time to assess the composition of the Borrowing Base, and
to discuss all such matters with the officers, employees and representatives of
the Credit Parties and their Subsidiaries.
7.12 Additional Credit Parties.
At any time a Person that is not a Credit Party becomes a Material
Subsidiary of a Credit Party, the Borrowers shall notify the Administrative
Agent and promptly thereafter (but in any event within 30 days after such Person
becomes a Material Subsidiary of a Credit Party) (a) execute a Joinder Agreement
in substantially the same form as Exhibit 7.12, and (b) deliver such other
documentation as the Administrative Agent may reasonably request in connection
with the foregoing, including, without limitation, information regarding the
real property owned by such Person, including title and environmental reports,
certified resolutions and other organizational and authorizing documents of such
Person and favorable opinions of counsel to such Person (which shall cover,
among other things, the legality, validity, binding effect and enforceability of
the documentation referred to above), all in form, content and scope reasonably
satisfactory to the Administrative Agent.
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7.13 Interest Rate Protection Agreements.
If for any consecutive period of 30 days or more Eurodollar Loans
constitute less than 75% of the aggregate principal amount of all outstanding
Revolving Loans, then the Borrowers shall enter into interest rate protection
agreements in form and substance acceptable to the Administrative Agent.
7.14 [Intentionally Omitted]
7.15 Construction.
With respect to any construction and development engaged in by the Credit
Parties, the Credit Parties shall or shall cause another Person to: (a) comply
with all applicable regulations and codes and (b) complete all such construction
and development in accordance with approved plans and specifications.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans and LOC Obligations, together with
interest, fees and other obligations hereunder, have been paid in full and the
Commitments and Letters of Credit hereunder shall have terminated:
8.1 Indebtedness.
No Credit Party will, nor will it permit any of its Subsidiaries to,
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the other
Credit Documents;
(b) Indebtedness owing from one Credit Party to another Credit Party;
(c) Indebtedness in respect of current accounts payable and accrued
expenses incurred in the ordinary course of business;
(d) Indebtedness subject to a Lien not to exceed, in the aggregate at
any one time, 25% of Consolidated GIAV; and
(e) Other unsecured Indebtedness as long as the Credit Parties are
otherwise in compliance with the terms of this Credit Agreement.
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8.2 Liens.
No Credit Party will, nor will it permit any of its Subsidiaries to,
contract, create, incur, assume or permit to exist any Lien with respect to any
of its Properties or any other assets of any kind (whether real or personal,
tangible or intangible), whether now owned or after acquired, except for
Permitted Liens.
8.3 Nature of Business.
No Credit Party will, nor will it permit any of its Subsidiaries to, alter
the character of its business from that conducted as of the Closing Date or
engage in any business other than the business conducted as of the Closing Date.
8.4 Consolidation and Merger.
No Credit Party will enter into any transaction of merger or consolidation
or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); provided that notwithstanding the foregoing provisions of this
Section 8.4, any Credit Party may be merged or consolidated with or into another
Credit Party; provided that (a) if the transaction is between a Borrower and
another Credit Party such Borrower is the continuing or surviving entity; (b)
the Administrative Agent is given prior written notice of such action, and the
Credit Parties execute and deliver such documents, instruments and certificates
as the Administrative Agent may reasonably request; and (c) after giving effect
thereto no Default or Event of Default exists.
8.5 Sale or Lease of Assets.
No Credit Party will convey, sell, lease, transfer or otherwise dispose of,
in one transaction or a series of transactions, all or any part of its business
or assets whether now owned or hereafter acquired other than (a) the sale or
transfer of assets that do not constitute Eligible Properties; (b) the transfer
of assets which constitute a Permitted Investment; (c) the sale of Eligible
Properties by the Credit Parties; provided that (i) prior to such sale or
transfer of an Eligible Property, the Credit Parties notify the Administrative
Agent in writing and provide a certificate as to compliance, after giving effect
to such sale or transfer, with all of the terms of the Credit Agreement,
including but not limited to, the financial covenants set forth in Section 7.2;
(ii) the Borrowers make a prepayment on the outstanding Revolving Loans, if
necessary, as required by Section 3.3(b)(ii) and (iii) at the time of such sale,
and after giving effect thereto, no Default or Event of Default shall exist.
8.6 Advances, Investments and Loans.
Neither the Credit Parties nor any of their Subsidiaries will (a) make any
Investments except for Permitted Investments or (b) so long as Brandywine Realty
Services Partnership ("BRSP") is named in Section 2.5 hereof, make any
Investments in BRSP (whether or not such Investment would otherwise be a
Permitted Investment) or otherwise cause or permit BRSP to be a Subsidiary of
any Credit Party.
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8.7 Restricted Payments.
(a) No Credit Party will, directly or indirectly, declare or pay any
dividends or make any other distribution upon any of its shares of
beneficial interests or any shares of its capital stock of any class or
with respect to any of its partnership interests that exceeds, in the
aggregate, 90% of Funds From Operations earned subsequent to the Effective
Date; provided that (i) any Subsidiary of a Credit Party may pay dividends
or make distributions to its parent and (ii) BRT may pay such dividends as
is necessary to maintain its status as a REIT.
(b) Except as permitted by Section 8.6 and except for the conversion
of partnership units of BOP into cash or into shares of beneficial interest
of BRT, no Credit Party will, nor will it permit any of its Subsidiaries
to, at any time, for cash, purchase, redeem or otherwise acquire or retire
or make any provisions for redemption, acquisition or retirement of any
shares of its capital stock of any class or any warrants or options to
purchase any such shares or with respect to any of its partnership
interests.
8.8 Transactions with Affiliates.
No Credit Party will, nor will it permit any of its Subsidiaries to, enter
into any transaction or series of transactions, whether or not in the ordinary
course of business, with any officer, director, shareholder, Subsidiary or
Affiliate other than on terms and conditions substantially as favorable as would
be obtainable in a comparable arm's-length transaction with a Person other than
an officer, director, shareholder, Subsidiary or Affiliate.
8.9 Fiscal Year; Organizational Documents.
No Credit Party will (a) change its fiscal year or (b) change its articles
or certificate of incorporation, its bylaws, its declaration of trust, its
limited liability company agreement, its articles or certificate of partnership
or partnership agreement or any other organization or formation documents in any
manner that would have an adverse effect of the rights of the Lenders under the
Credit Documents; provided that (i) BRT may take such action, with prior written
notice to the Administrative Agent, as is necessary to maintain its status as a
REIT and (ii) the Credit Parties will provide prompt written notice of any
change to be made in compliance with the terms of this Section 8.9.
8.10 Limitations.
No Credit Party will, nor will it permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause, incur, assume, suffer or
permit to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of any such Person to pay any Indebtedness owed to the
Credit Parties.
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8.11 Other Negative Pledges.
The Credit Parties will not enter into, assume or become subject to any
agreement prohibiting or otherwise restricting the creation or assumption of any
Lien upon its properties or assets, whether now owned or hereafter acquired, or
requiring the grant of any security for such obligation if security is given for
some other obligation except as provided under the Credit Documents.
8.12 Construction and Development.
The Credit Parties shall not engage in construction and development
projects in which the total project costs of all such concurrent construction
and development projects exceed, in the aggregate at any one time, $100,000,000
(it being understood and agreed for purposes of this Section 8.12 that a project
shall be considered under construction and/or development until a certificate of
occupancy therefore (or other similar certificate) shall have been issued by the
applicable Governmental Authority).
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the following
specified events (each an "Event of Default"):
(a) Payment. The Credit Parties shall default in the payment (i)
when due of any principal amount of any Loans or any reimbursement
obligation arising from drawings under Letters of Credit or (ii) within
three days of when due of any interest on the Loans or any fees or other
amounts owing hereunder, under any of the other Credit Documents or in
connection herewith.
(b) Representations. Any representation, warranty or statement made
or deemed to be made by any Credit Party herein, in any of the other Credit
Documents, or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in any material
respect on the date as of which it was made or deemed to have been made.
(c) Covenants. Any Credit Party shall:
(i) default in the due performance or observance of any
term, covenant or agreement contained in Sections 7.2, 7.3, 7.10,
7.11, 7.12, 7.14, or 8.1 through 8.12 inclusive; or
(ii) default in the due performance or observance by it of
any term, covenant or agreement contained in Section 7.1 and such
default shall
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continue unremedied for a period of five Business Days after the
earlier of a Credit Party becoming aware of such default or notice
thereof given by the Administrative Agent; or
(iii) default in the due performance or observance by it
of any term, covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) or (ii) of this Section 9.1) contained
in this Credit Agreement and such default shall continue unremedied
for a period of at least 30 days after the earlier of a Credit Party
becoming aware of such default or notice thereof given by the
Administrative Agent.
(d) Other Credit Documents. (i) Any Credit Party shall default in
the due performance or observance of any term, covenant or agreement in any
of the other Credit Documents and such default shall continue unremedied
for a period of at least 30 days after the earlier of a Credit Party
becoming aware of such default or notice thereof given by the
Administrative Agent, or (ii) any Credit Document (or any provision of any
Credit Document, including Section 4 of the Credit Agreement) shall fail to
be in full force and effect or any Credit Party shall so assert or any
Credit Document shall fail to give the Administrative Agent and/or the
Lenders the security interests, liens, rights, powers and privileges
purported to be created thereby.
(e) Bankruptcy, etc. The occurrence of any of the following with
respect to any Credit Party or any of its Subsidiaries (i) a court or
governmental agency having jurisdiction in the premises shall enter a
decree or order for relief in respect of any Credit Party or any of its
Subsidiaries in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appoint a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of any Credit Party or any of its Subsidiaries or for any
substantial part of its property or ordering the winding up or liquidation
of its affairs; or (ii) an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect is
commenced against any Credit Party or any of its Subsidiaries and such
petition remains unstayed and in effect for a period of 60 consecutive
days; or (iii) any Credit Party or any of its Subsidiaries shall commence a
voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the
appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of such Person or any
substantial part of its property or make any general assignment for the
benefit of creditors; or (iv) any Credit Party or any of its Subsidiaries
shall admit in writing its inability to pay its debts generally as they
become due or any action shall be taken by such Person in furtherance of
any of the aforesaid purposes.
(f) Defaults under Other Agreements. With respect to any recourse
Indebtedness (other than Indebtedness outstanding under this Credit
Agreement) of any Credit Party or any of its Subsidiaries in an aggregate
principal amount in excess of $10,000,000, (i) a Credit Party or one of its
Subsidiaries shall (A) default in any payment (beyond the applicable grace
period with respect thereto, if any) with respect to any such
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recourse Indebtedness, or (B) default (after giving effect to any
applicable grace period) in the observance or performance of any term,
covenant or agreement relating to such recourse Indebtedness or contained
in any instrument or agreement evidencing, securing or relating thereto, or
any other event or condition shall occur or condition exist, the effect of
which default or other event or condition is to cause, or permit, the
holder or holders of such recourse Indebtedness (or trustee or agent on
behalf of such holders) to cause (determined without regard to whether any
notice or lapse of time is required) any such recourse Indebtedness to
become due prior to its stated maturity; or (ii) any such recourse
Indebtedness shall be declared due and payable, or required to be prepaid
other than by a regularly scheduled required prepayment prior to the stated
maturity thereof; or (iii) any such Indebtedness shall mature and remain
unpaid. With respect to any nonrecourse Indebtedness of any Credit Party or
any of its Subsidiaries in an aggregate principal amount in excess of
$20,000,000, a default in payment (whether by acceleration or otherwise)
shall occur and such payment default is not cured or waived within sixty
days after the occurrence thereof.
(g) Judgments. One or more judgments, orders, or decrees shall be
entered against any one or more of the Credit Party involving a liability
of $10,000,000 or more, in the aggregate (to the extent not paid or covered
by insurance provided by a carrier who has acknowledged coverage), and such
judgments, orders or decrees (i) are the subject of any enforcement
proceeding commenced by any creditor or (ii) shall continue unsatisfied,
undischarged and unstayed for a period ending on the first to occur of (A)
the last day on which such judgment, order or decree becomes final and
unappealable or (B) 20 days.
(h) ERISA Events. The occurrence of any of the following events or
conditions, unless such event or occurrence would not have or be reasonably
expected to have a Material Adverse Effect: (1) any "accumulated funding
deficiency," as such term is defined in Section 302 of ERISA and Section
412 of the Code, whether or not waived, shall exist with respect to any
Plan, or any lien shall arise on the assets of a Credit Party or any ERISA
Affiliate in favor of the PBGC or a Plan; (2) an ERISA Event shall occur
with respect to a Single Employer Plan, which is, in the reasonable opinion
of the Administrative Agent, likely to result in the termination of such
Plan for purposes of Title IV of ERISA; (3) an ERISA Event shall occur with
respect to a Multiemployer Plan or Multiple Employer Plan, which is, in the
reasonable opinion of the Administrative Agent, likely to result in (i) the
termination of such Plan for purposes of Title IV of ERISA, or (ii) a
Credit Party or any ERISA Affiliate incurring any liability in connection
with a withdrawal from, reorganization of (within the meaning of Section
4241 of ERISA), or insolvency (within the meaning of Section 4245 of ERISA)
of such Plan; or (4) any prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which may subject a Credit Party or any ERISA
Affiliate to any liability under Sections 406, 409, 502(i), or 502(l) of
ERISA or Section 4975 of the Code, or under any agreement or other
instrument pursuant to which a Credit Party or any ERISA Affiliate has
agreed or is required to indemnify any person against any such liability.
(i) Ownership. There shall occur a Change of Control.
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(j) Management. Xxxxxx Xxxxxxx is no longer active in the management
of the Credit Parties and their Subsidiaries; provided that upon the death
or disability of Xxxxxx Xxxxxxx, the Credit Parties and their Subsidiaries
shall have six months to provide the Administrative Agent with substitute
personnel as replacement; such substitute personnel to be acceptable to the
Administrative Agent in its sole reasonable discretion.
(k) REIT Status. BRT does not maintain its REIT status or is no
longer deemed to be a REIT.
9.2 Acceleration; Remedies.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived in writing by the
Required Lenders (or the Lenders as may be required hereunder), the
Administrative Agent shall, upon the request and direction of the Required
Lenders, by written notice to the Borrowers, take any of the following actions
without prejudice to the rights of the Administrative Agent or any Lender to
enforce its claims against the Borrowers, except as otherwise specifically
provided for herein:
(a) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
(b) Acceleration of Loans. Declare the unpaid principal of and any
accrued interest in respect of all Loans, any reimbursement obligations
arising from drawings under Letters of Credit and any and all other
indebtedness or obligations of any and every kind owing by a Credit Party
to any of the Lenders hereunder to be due whereupon the same shall be
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Credit Parties.
(c) Cash Collateral. Direct the Credit Parties to pay (and the
Credit Parties agree that upon receipt of such notice, or upon the
occurrence of an Event of Default under Section 9.1(e), they will
immediately pay) to the Administrative Agent additional cash, to be held by
the Administrative Agent, for the benefit of the Lenders, in a cash
collateral account as additional security for the LOC Obligations in
respect of subsequent drawings under all then outstanding Letters of Credit
in an amount equal to the maximum aggregate amount which may be drawn under
all Letters of Credits then outstanding.
(d) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Credit Documents, including, without
limitation, all rights and remedies against a Guarantor and all rights of
set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all accrued interest in respect thereof, all accrued and unpaid fees, all
reimbursement obligations under Letters of Credit and all other indebtedness or
obligations owing to the Lenders hereunder shall immediately become due and
payable without the giving of any notice or other action by the Administrative
Agent or the Lenders, which notice or other action is expressly waived by the
Credit Parties.
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Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code
or any other insolvency statute.
9.3 Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Credit Agreement, after the
occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Administrative Agent, or any Lender on account of
amounts outstanding under any of the Credit Documents shall be paid over or
delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees) of the
Administrative Agent in connection with enforcing the rights of the Lenders
under the Credit;
SECOND, to payment of any fees owed to the Administrative Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses, (including, without limitation, reasonable attorneys' fees) of
each of the Lenders in connection with enforcing its rights under the
Credit Documents;
FOURTH, to the payment of all accrued fees and interest payable to the
Lenders hereunder;
FIFTH, to the payment of the outstanding principal amount of the
Loans, and unreimbursed drawings under Letters of Credit, to the payment or
cash collateralization of the outstanding LOC Obligations pro rata, as set
forth below;
SIXTH, to all other obligations which shall have become due and
payable under the Credit Documents and not repaid pursuant to clauses
"FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans and
LOC Obligations held by such Lender bears to the aggregate then outstanding
Loans and LOC Obligations) of amounts available to be applied pursuant to
clauses "THIRD", "FOURTH," "FIFTH," and "SIXTH" above and (c) to the extent that
any amounts available for distribution pursuant to clause "FIFTH" above are
attributable to the issued by undrawn amount of outstanding Letters of Credit,
such amounts shall be held by the Administrative Agent in a cash collateral
account and applied (x) first, to reimburse the Issuing Lender from time to time
for any drawings under such Letters of Credit and (y) then, following the
expiration of all Letters of Credit, to all
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other obligations of the types described in clauses "FIFTH" and "SIXTH" above in
the manner provided in this Section 9.3.
SECTION 10
AGENCY PROVISIONS
10.1 Appointment.
Each Lender hereby designates and appoints NationsBank, N.A. as
Administrative Agent of such Lender to act as specified herein and the other
Credit Documents, and each such Lender hereby authorizes the Administrative
Agent, as the agent for such Lender, to take such action on its behalf under the
provisions of this Credit Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated by the
terms hereof and of the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere herein and in the other Credit Documents, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein and therein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Credit Agreement or any of the other Credit
Documents, or shall otherwise exist against the Administrative Agent. The
provisions of this Section are solely for the benefit of the Administrative
Agent and the Lenders and none of the Credit Parties shall have any rights as a
third party beneficiary of the provisions hereof. In performing its functions
and duties under this Credit Agreement and the other Credit Documents, the
Administrative Agent shall act solely as an agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligation or relationship of
agency or trust with or for any Credit Parties.
10.2 Delegation of Duties.
The Administrative Agent may execute any of its duties hereunder or under
the other Credit Documents by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
10.3 Exculpatory Provisions.
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (a) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection herewith or in connection with any of the other Credit Documents
(except for its or such Person's own gross negligence or willful misconduct) or
(b) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any of the Credit Parties
contained herein or in any of the other Credit Documents or in any certificate,
report, document, financial statement or other written or oral statement
referred to or provided for in, or received by the Administrative Agent under or
in
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connection herewith or in connection with the other Credit Documents, or
enforceability or sufficiency therefor of any of the other Credit Documents, or
for any failure of the Credit Parties to perform their obligations hereunder or
thereunder. The Administrative Agent shall not be responsible to any Lender for
the effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Credit Agreement, or any of the other Credit Documents or
for any representations, warranties, recitals or statements made herein or
therein or made by the Credit Parties in any written or oral statement or in any
financial or other statements, instruments, reports, certificates or any other
documents in connection herewith or therewith furnished or made by the
Administrative Agent to the Lenders or by or on behalf of the Credit Parties to
the Administrative Agent or any Lender or be required to ascertain or inquire as
to the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or the use of the Letters of Credit or of the existence or
possible existence of any Default or Event of Default or to inspect the
properties, books or records of the Credit Parties. The Administrative Agent is
not a trustee for the Lenders and owes no fiduciary duty to the Lenders.
10.4 Reliance on Communications.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any of the Credit Parties, independent accountants and
other experts selected by the Administrative Agent with reasonable care). The
Administrative Agent may deem and treat each Lender as the owner of its
interests hereunder for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent in accordance with Section 11.3(b). The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Credit
Agreement or under any of the other Credit Documents unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder or under any of the other Credit Documents in accordance with a
request of the Required Lenders (or to the extent specifically provided in
Section 11.6, all the Lenders) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders (including their
successors and assigns).
10.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or a Credit Party
referring to the Credit Document, describing such Default or Event of Default
and stating that such notice is a "notice of default." In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice
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thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders.
10.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent,
NationsBanc Xxxxxxxxxx Securities, Inc. ("NMSI") nor any of their officers,
directors, employees, agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by the Administrative Agent,
NMSI or any affiliate thereof hereinafter taken, including any review of the
affairs of any Credit Party, shall be deemed to constitute any representation or
warranty by the Administrative Agent or NMSI to any Lender. Each Lender
represents to the Administrative Agent and NMSI that it has, independently and
without reliance upon the Administrative Agent or NMSI or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, assets, operations,
property, financial and other conditions, prospects and creditworthiness of the
Credit Parties and made its own decision to make its Loans hereunder and enter
into this Credit Agreement. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent, NMSI 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, appraisals
and decisions in taking or not taking action under this Credit Agreement, and to
make such investigation as it deems necessary to inform itself as to the
business, assets, operations, property, financial and other conditions,
prospects and creditworthiness of the Credit Parties. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, the Administrative Agent and NMSI shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, assets, property, financial or
other conditions, prospects or creditworthiness of the Credit Parties which may
come into the possession of the Administrative Agent, NMSI or any of their
officers, directors, employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its capacity as
such (to the extent not reimbursed by the Credit Parties and without limiting
the obligation of the Credit Parties to do so), ratably according to their
respective Commitments (or if the Commitments have expired or been terminated,
in accordance with the respective principal amounts of outstanding Loans and
Participation Interest of the Lenders), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including without limitation at any time following payment in full of the
Obligations) be imposed on, incurred by or asserted against the Administrative
Agent in its capacity as such in any way relating to or arising out of this
Credit Agreement or the other Credit Documents or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or willful misconduct of the Administrative
Agent. If any indemnity furnished to the Administrative Agent for any purpose
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shall, in the opinion of the Administrative Agent, be insufficient or become
impaired, the Administrative Agent may call for additional indemnity and cease,
or not commence, to do the acts indemnified against until such additional
indemnity is furnished. The agreements in this Section shall survive the
payment of the Obligations and all other amounts payable hereunder and under the
other Credit Documents.
10.8 Administrative Agent in Its Individual Capacity.
The Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Credit
Parties as though the Administrative Agent were not the Administrative Agent
hereunder. With respect to the Loans made and Letters of Credit issued and all
obligations owing to it, the Administrative Agent shall have the same rights and
powers under this Credit Agreement as any Lender and may exercise the same as
though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
10.9 Successor Agent.
The Administrative Agent may, at any time, resign upon 20 days written
notice to the Lenders. Upon any such resignation, the Required Lenders shall
have the right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 45 days after the notice of
resignation, then the retiring Administrative Agent shall select a successor
Administrative Agent provided such successor is a Lender hereunder or an
Eligible Assignee. Upon the acceptance of any appointment as the Administrative
Agent hereunder by a successor, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations as the Administrative
Agent, as appropriate, under this Credit Agreement and the other Credit
Documents and the provisions of this Section 10.9 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was the
Administrative Agent under this Credit Agreement.
SECTION 11
MISCELLANEOUS
11.1 Notices.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set out below, (c) the Business Day following the day on which the same
has been delivered prepaid to a reputable national overnight air courier
service, or (d) the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address or telecopy numbers set
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forth on Schedule 11.1, or at such other address as such party may specify by
written notice to the other parties hereto.
11.2 Right of Set-Off.
In addition to any rights now or hereafter granted under applicable law or
otherwise, and not by way of limitation of any such rights, upon the occurrence
of an Event of Default and the commencement of remedies described in Section
9.2, each Lender is authorized at any time and from time to time, without
presentment, demand, protest or other notice of any kind (all of which rights
being hereby expressly waived), to set-off and to appropriate and apply any and
all deposits (general or special) and any other indebtedness at any time held or
owing by such Lender (including, without limitation, branches, agencies or
Affiliates of such Lender wherever located) to or for the credit or the account
of any Credit Party against obligations and liabilities of such Credit Party to
the Lenders hereunder, under the Notes, the other Credit Documents or otherwise,
irrespective of whether the Administrative Agent or the Lenders shall have made
any demand hereunder and although such obligations, liabilities or claims, or
any of them, may be contingent or unmatured, and any such set-off shall be
deemed to have been made immediately upon the occurrence of an Event of Default
even though such charge is made or entered on the books of such Lender
subsequent thereto. The Credit Parties hereby agree that any Person purchasing
a participation in the Loans and Commitments hereunder pursuant to Section
11.3(c) or 3.8 may exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a Lender hereunder.
11.3 Benefit of Agreement.
(a) Generally. This Credit Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided that none of the Credit Parties may
assign and transfer any of its interests (except as permitted by Sections
8.4 or 8.5) without the prior written consent of the Lenders; and provided
further that the rights of each Lender to transfer, assign or grant
participations in its rights and/or obligations hereunder shall be limited
as set forth below in subsections (b) and (c) of this Section 11.3.
Notwithstanding the above (including anything set forth in subsections (b)
and (c) of this Section 11.3), nothing herein shall restrict, prevent or
prohibit any Lender from (A) pledging its Loans hereunder to a Federal
Reserve Bank in support of borrowings made by such Lender from such Federal
Reserve Bank, or (B) granting assignments or participations in such
Lender's Loans and/or Commitments hereunder to its parent company and/or to
any Affiliate of such Lender or to any existing Lender or Affiliate
thereof.
(b) Assignments. In addition to the assignments permitted by Section
11.3(a), each Lender may, with the prior written consent of the Borrowers
and the Administrative Agent (provided that no consent of the Borrowers
shall be required during the existence and continuation of an Event of
Default), which consent shall not be unreasonably withheld or delayed,
assign all or a portion of its rights and obligations hereunder pursuant to
an assignment agreement substantially in the form of Exhibit 11.3 to one or
more Eligible Assignees; provided that (i) any such assignment shall be in
a minimum aggregate amount
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of $10,000,000 of the Commitments and in integral multiples of $1,000,000
above such amount (or the remaining amount of Commitments held by such
Lender) and (ii) each such assignment shall be of a constant, not varying,
percentage of all of the assigning Lender's rights and obligations under
the Commitment being assigned. Any assignment hereunder shall be effective
upon satisfaction of the conditions set forth above and delivery to the
Administrative Agent of a duly executed assignment agreement together with
a transfer fee of $3,500 payable to the Administrative Agent for its own
account. Upon the effectiveness of any such assignment, the assignee shall
become a "Lender" for all purposes of this Credit Agreement and the other
Credit Documents and, to the extent of such assignment, the assigning
Lender shall be relieved of its obligations hereunder to the extent of the
Loans and Commitment components being assigned. The Borrowers agree that
upon notice of any such assignment and surrender of the appropriate Note or
Notes, it will promptly provide to the assigning Lender and to the assignee
separate promissory notes in the amount of their respective interests
substantially in the form of the original Note or Notes (but with notation
thereon that it is given in substitution for and replacement of the
original Note or Notes or any replacement notes thereof).
By executing and delivering an assignment agreement in accordance with this
Section 11.3(b), the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and the
other parties hereto as follows: (i) such assigning Lender warrants that it
is the legal and beneficial owner of the interest being assigned thereby
free and clear of any adverse claim and the assignee warrants that it is an
Eligible Assignee; (ii) except as set forth in clause (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement, any of
the other Credit Documents or any other instrument or document furnished
pursuant hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Credit Agreement,
any of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto or the financial condition of any
Credit Party or the performance or observance by any Credit Party of any of
its obligations under this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant hereto or
thereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such assignment agreement; (iv) such assignee
confirms that it has received a copy of this Credit Agreement, the other
Credit Documents and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
assignment agreement; (v) such assignee will independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Credit Agreement and the other
Credit Documents; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action on its behalf and to exercise such
powers under this Credit Agreement or any other Credit Document as are
delegated to the Administrative Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms
all the obligations which by the terms of this Credit Agreement and the
other Credit Documents are required to be performed by it as a Lender.
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(c) Participations. Each Lender may sell, transfer, grant or assign
participations in all or any part of such Lender's interests and
obligations hereunder; provided that (i) such selling Lender shall remain a
"Lender" for all purposes under this Credit Agreement (such selling
Lender's obligations under the Credit Documents remaining unchanged) and
the participant shall not constitute a Lender hereunder, (ii) no such
participant shall have, or be granted, rights to approve any amendment or
waiver relating to this Credit Agreement or the other Credit Documents
except to the extent any such amendment or waiver would (A) reduce the
principal of or rate of interest on or fees in respect of any Loans in
which the participant is participating or increase any Commitments with
respect thereto, or (B) postpone the date fixed for any payment of
principal (including the extension of the final maturity of any Loan or the
date of any mandatory prepayment), interest or fees in which the
participant is participating, (iii) sub-participations by the participant
(except to an Affiliate, parent company or Affiliate of a parent company of
the participant) shall be prohibited and (iv) any such participations shall
be in a minimum aggregate amount of $10,000,000 of the Commitments and in
integral multiples of $1,000,000 in excess thereof. In the case of any such
participation, the participant shall not have any rights under this Credit
Agreement or the other Credit Documents (the participant's rights against
the selling Lender in respect of such participation to be those set forth
in the participation agreement with such Lender creating such
participation) and all amounts payable by the Credit Parties hereunder
shall be determined as if such Lender had not sold such participation;
provided, however, that such participant shall be entitled to receive
additional amounts under Sections 3.9, 3.12, 3.13 and 3.14 to the same
extent that the Lender from which such participant acquired its
participation would be entitled to the benefit of such cost protection
provisions.
11.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent or any Lender
in exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Credit Parties and the
Administrative Agent or any Lender shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege hereunder or
under any other Credit Document preclude any other or further exercise thereof
or the exercise of any other right, power or privilege hereunder or thereunder.
The rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Administrative Agent or any Lender would otherwise
have. No notice to or demand on any Credit Party in any case shall entitle any
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent
or the Lenders to any other or further action in any circumstances without
notice or demand.
11.5 Payment of Expenses; Indemnification.
The Credit Parties agree to: (a) pay all reasonable out-of-pocket costs
and expenses of (i) the Administrative Agent and NationsBanc Xxxxxxxxxx
Securities, Inc. ("NMSI") in connection with (A) the negotiation, preparation,
execution and delivery, syndication and administration of this Credit Agreement
and the other Credit Documents and the documents and instruments referred to
therein (including, without limitation, the reasonable fees and expenses of
Xxxxx & Xxx Xxxxx,
79
special counsel to the Administrative Agent, and (B) any amendment, waiver or
consent relating hereto and thereto including, but not limited to, any such
amendments, waivers or consents resulting from or related to any work-out,
renegotiation or restructure relating to the performance by the Credit Parties
under this Credit Agreement, and (ii) the Administrative Agent and the Lenders
in connection with (A) enforcement of the Credit Documents and the documents and
instruments referred to therein, including, without limitation, in connection
with any such enforcement, the reasonable fees and disbursements of counsel for
the Administrative Agent and each of the Lenders, and (B) any bankruptcy or
insolvency proceeding of a Credit Party of any of its Subsidiaries, and (b)
indemnify the Administrative Agent, NMSI and each Lender, its officers,
directors, employees, representatives and agents from and hold each of them
harmless against any and all losses, liabilities, claims, damages or expenses
incurred by any of them as a result of, or arising out of, or in any way related
to, or by reason of, any investigation, litigation or other proceeding (whether
or not the Administrative Agent, NMSI or any Lender is a party thereto) related
to (i) the entering into and/or performance of any Credit Document or the use of
proceeds of any Loans (including other extensions of credit) hereunder or the
consummation of any other transactions contemplated in any Credit Document,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other
proceeding (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified), (ii) any Environmental
Claim and (iii) any claims for Non-Excluded Taxes.
11.6 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document nor any of the
terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing and signed by the Required Lenders and the Credit Parties; provided that
no such amendment, change, waiver, discharge or termination shall without the
consent of each Lender affected thereby:
(a) extend the final maturity of any Loan or any portion thereof or
postpone any other date fixed for any payment of principal (other than in
accordance with Section 3.5(b));
(b) reduce the rate or extend the time of payment of interest (other
than as a result of waiving the applicability of any post-default increase
in interest rates) thereon or fees hereunder;
(c) reduce or waive the principal amount of any Loan;
(d) increase the Commitment of a Lender over the amount thereof in
effect (it being understood and agreed that a waiver of any Default or
Event of Default or a waiver of any mandatory reduction in the Commitments
shall not constitute a change in the terms of any Commitment of any
Lender);
(e) release a Credit Party from its obligations under the Credit
Documents;
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(f) amend, modify or waive any provision of this Section or Section
3.4(a), 3.4(b), 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, 5.2, 9.1(a),
11.2, 11.3 or 11.5;
(g) reduce any percentage specified in, or otherwise modify, the
definition of Required Lenders; or
(h) consent to the assignment or transfer by a Credit Party of any of
its rights and obligations under (or in respect of) the Credit Documents except
as permitted under Section 8.4.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any reorganization plan that affects the Loans or the
Letters of Credit, and each Lender acknowledges that the provisions of Section
1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set
forth herein and (y) the Required Lenders may consent to allow a Credit Party to
use cash collateral in the context of a bankruptcy or insolvency proceeding.
11.7 Counterparts.
This Credit Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument.
11.8 Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 Defaulting Lender.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then notwithstanding the provisions of Section 11.6 it shall not be
entitled to vote on any matter requiring the consent of the Required Lenders or
to object to any matter requiring the consent of all the Lenders; provided,
however, that all other benefits and obligations under the Credit Documents
shall apply to such Defaulting Lender.
11.10 Survival of Indemnification and Representations and Warranties.
All indemnities set forth herein and all representations and warranties
made herein shall survive the execution and delivery of this Credit Agreement,
the making of the Loans, the issuance of the Letters of Credit and the repayment
of the Loans and other obligations and the termination of the Commitments
hereunder.
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11.11 Governing Law; Jurisdiction.
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NORTH CAROLINA. Any legal action or proceeding with
respect to this Agreement or any other Credit Document may be brought
in the courts of the State of North Carolina in Mecklenburg County, or
of the United States for the Western District of North Carolina and,
by execution and delivery of this Credit Agreement, each Credit Party
hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of such courts. Each
Credit Party further irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address for notices pursuant to
Section 11.1, such service to become effective 15 days after such
mailing. Nothing herein shall affect the right of a Lender to serve
process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against a Credit Party in any
other jurisdiction. Each Credit Party agrees that a final judgment in
any action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner
provided by law; provided that nothing in this Section 11.11(a) is
intended to impair a Credit Party's right under applicable law to
appeal or seek a stay of any judgment.
(b) Each Credit Party hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection
with this Credit Agreement or any other Credit Document brought in the
courts referred to in subsection (a) hereof and hereby further
irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
11.12 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
11.13 Time.
All references to time herein shall be references to Eastern Standard Time
or Eastern Daylight Time, as the case may be, unless specified otherwise.
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11.14 Severability.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.15 Entirety.
This Credit Agreement together with the other Credit Documents represent
the entire agreement of the parties hereto and thereto, and supersede all prior
agreements and understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents or the transactions
contemplated herein and therein.
11.16 Binding Effect.
(a) This Credit Agreement shall become effective at such time when
all of the conditions set forth in Section 5.1 have been satisfied or
waived by the Lenders and it shall have been executed by the Credit Parties
and the Administrative Agent, and the Administrative Agent shall have
received copies hereof (telefaxed or otherwise) which, when taken together,
bear the signatures of each Lender, and thereafter this Credit Agreement
shall be binding upon and inure to the benefit of the Credit Parties, the
Administrative Agent and each Lender and their respective successors and
assigns.
(b) This Credit Agreement shall be a continuing agreement and shall
remain in full force and effect until all Loans, LOC Obligations, interest,
fees and other Obligations have been paid in full and all Commitments and
Letters of Credit have been terminated. Upon termination, the Credit
Parties shall have no further obligations (other than the indemnification
provisions that survive) under the Credit Documents; provided that should
any payment, in whole or in part, of the Obligations be rescinded or
otherwise required to be restored or returned by the Administrative Agent
or any Lender, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, then the Credit Documents shall automatically
be reinstated and all amounts required to be restored or returned and all
costs and expenses incurred by the Administrative Agent or Lender in
connection therewith shall be deemed included as part of the Obligations.
11.17 Confidentiality.
Each Lender agrees that it will use its reasonable best efforts to keep
confidential and to cause any representative designated under Section 7.11 to
keep confidential any non-public information from time to time supplied to it
under any Credit Document; provided, however, that nothing herein shall prevent
the disclosure of any such information to (a) the extent a Lender in good faith
believes such disclosure is required by Requirement of Law, (b) counsel for a
Lender or to its accountants, (c) bank examiners or auditors or comparable
Persons, (d) any affiliate of a Lender, (e) any other Lender, or any assignee,
transferee or participant, or any potential assignee, transferee or participant,
of all or any portion of any Lender's rights under this Agreement who is
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notified of the confidential nature of the information or (f) any other Person
in connection with any litigation to which any one or more of the Lenders is a
party; and provided further that no Lender shall have any obligation under this
Section 11.17 to the extent any such information becomes available on a
non-confidential basis from a source other than a Credit Party or that any
information becomes publicly available other than by a breach of this Section
11.17.
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Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWERS:
BRANDYWINE REALTY TRUST, a Maryland
real estate investment trust
By:
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Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
BRANDYWINE OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
By:
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Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
GUARANTORS: LC/N HORSHAM LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general
partner
LC/N XXXXX VALLEY LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general
partner
XXXXXXX LANSDALE LIMITED PARTNERSHIP III,
a Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx L.L.C., a Pennsylvania
limited liability company, its general
partner
NEWTECH III LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx L.L.C., a Pennsylvania
limited liability company, its general
partner
XXXXXX OPERATING PARTNERSHIP I, L.P., a
Delaware limited partnership
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
NEWTECH IV LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general
partner
C/N OAKLANDS LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general
partner
FIFTEEN HORSHAM, L.P., a Pennsylvania limited
partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general
partner
C/N LEEDOM LIMITED PARTNERSHIP II, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
C/N IRON RUN LIMITED PARTNERSHIP III, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
C/N OAKLANDS LIMITED PARTNERSHIP III a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
IRON RUN LIMITED PARTNERSHIP V, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE TB I, L.P., a Pennsylvania limited
partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE XX XX, L.P., a Pennsylvania limited
partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE TB III, L.P., a Pennsylvania limited
partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE DOMINION, L.P., a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE P.M., L.P., a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE REALTY PARTNERS, a
Pennsylvania general partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general
partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
BRANDYWINE REALTY SERVICES
CORPORATION, a Pennsylvania corporation
BRANDYWINE ACQUISITIONS, LLC, a
Delaware limited liability company
BRANDYWINE MAIN STREET, LLC, a
Delaware limited liability company
1100 BRANDYWINE, LLC, a
Delaware limited liability company
BRANDYWINE LEASING, LLC, a
Delaware limited liability company
BRANDYWINE TB I, L.L.C., a
Pennsylvania limited liability company
BRANDYWINE XX XX, L.L.C., a
Pennsylvania limited liability company
BRANDYWINE TB III, L.L.C., a
Pennsylvania limited liability company
BRANDYWINE XXXXXX, LLC, a
Pennsylvania limited liability company
BRANDYWINE DOMINION, L.L.C., a
Pennsylvania limited liability company
BRANDYWINE P.M., L.L.C., a
Pennsylvania limited liability company
By:
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer of
each of the above-named entities
LENDERS:
NATIONSBANK, N.A., acting in its capacity
as Administrative Agent and individually as a Lender
By:
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Name:
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Title:
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