Exhibit 10.24
REVOLVING LOAN AGREEMENT
Dated as of August 11, 2004
This REVOLVING LOAN AGREEMENT ("Agreement") is entered into by and among
BIOMED REALTY TRUST, INC., a Maryland corporation ("Parent"), BIOMED REALTY,
L.P., a Maryland limited partnership ("Operating Partnership"), the other
borrowers whose names are set forth on the signature pages of this Agreement
(the "Other Existing Borrowers"), each other Wholly-Owned Subsidiary of the
Operating Partnership which may hereafter become a party to this Agreement as a
borrower pursuant to Section 5.13 (collectively, with Parent, Operating
Partnership and the Other Existing Borrowers, the "Borrowers," all on a joint
and several basis); each bank whose name is set forth on the signature pages of
this Agreement, and each lender which may hereafter become a party to this
Agreement pursuant to Section 2.8 or Section 11.8 (collectively, the "Banks"
and, individually, a "Bank"); U.S. BANK NATIONAL ASSOCIATION, as Administrative
Agent, U.S. BANK NATIONAL ASSOCIATION, as Lead Arranger and as Swing Loan Bank,
KEYBANK NATIONAL ASSOCIATION, as Syndication Agent, and ROYAL BANK OF CANADA, as
Documentation Agent.
RECITALS
WHEREAS, Borrowers have requested that the Banks provide certain credit
accommodations to Borrowers; and
WHEREAS, the Banks are willing to do so on the terms set forth in this
Agreement,
NOW, THEREFORE, in consideration of the recitals herein and the mutual
covenants contained herein, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Adjusted NOI" means, with respect to any Revenue-Producing Property
and for any fiscal period, (a) NOI of that Revenue-Producing Property
minus (b) the Capital Improvement Reserve for such Revenue-Producing
Property.
"Administrative Agent" means U.S. Bank, when acting in its capacity
as the Administrative Agent under any of the Loan Documents, or any
successor Administrative Agent.
"Administrative Agent's Office" means the Administrative Agent's
address at 0000 Xx Xxxxx Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000, or such other
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address as the Administrative Agent hereafter may designate by written
notice to Borrowers and the Banks.
"Advance" means any advance made or to be made by any Bank to
Borrowers as provided in Article 2, and includes each Alternate Base Rate
Advance and LIBOR Rate Advance.
"Affiliate" means, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled
by, such Person. As used in this definition, "control" (and the
correlative terms, "controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise); provided that, in any event, any Person that owns, directly or
indirectly, 10% or more of the securities having ordinary voting power for
the election of directors or other governing body of a corporation, or 10%
or more of the partnership or other ownership interests of any other
Person, will be deemed to be an Affiliate of such corporation, partnership
or other Person.
"Agreement" means this Revolving Loan Agreement, either as
originally executed or as it may from time to time be supplemented,
modified, amended, restated or extended.
"Agreement Regarding Fees" means the Agreement Regarding Fees dated
of even date herewith among the Borrowers and Administrative Agent.
"Alternate Base Rate" means, as of any date of determination, the
rate per annum equal to the higher of (a) the Reference Rate in effect on
such date and (b) the Federal Funds Rate in effect on such date plus one-
half of 1% (50 basis points) (rounded upwards, if necessary, to the next
1/100 of 1%).
"Alternate Base Rate Advance" means an Advance made hereunder and
specified to be an Alternate Base Rate Advance in accordance with Article
2.
"Alternate Base Rate Loan" means a Loan made hereunder and specified
to be an Alternate Base Rate Loan in accordance with Article 2.
"Applicable Margin" means the interest rate margin set forth below
in the LIBOR Rate Margin column with respect to LIBOR Rate Loans opposite
the Leverage Ratio as of the last day of the Fiscal Quarter most recently
ended:
Leverage Ratio LIBOR Rate Margin
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Less than .35 to 1.00 1.20%
Equal to or greater than .35 to 1.00 1.375%
but less than or equal to .43 to 1.00
Greater than .43 to 1.00 1.55%
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As of the date of this Agreement, the Leverage Ratio is less than .35 to
1.00, and the Applicable Margin under this Agreement is initially 1.20%.
Thereafter, the Applicable Margin for each following Fiscal Quarter shall
be adjusted (should the Leverage Ratio change) based on the Leverage Ratio
in effect as of the last day of the preceding Fiscal Quarter; provided,
however, that any such change in the Applicable Margin (and therefore any
change in the applicable interest rate for LIBOR Rate Loans) shall not be
effective until 45 days following the commencement of each Fiscal Quarter
(so that, for example, the Applicable Margin determined on the basis of
the Leverage Ratio calculated as of September 30, shall not become
effective until November 14 [45 days following September 30]). Each
previously Applicable Margin shall remain in effect until a new Applicable
Margin is established as aforesaid. If Borrowers fail to deliver the
necessary financial information within 45 days after the end of each
Fiscal Quarter in order to determine the new Applicable Margin, or should
Administrative Agent reasonably believe that such financial information
does not accurately reflect the Leverage Ratio, the Administrative Agent
may of its own volition, upon prior written notice to Borrowers (which
notice shall include the basis for Administrative Agent's determination),
establish the Applicable Margin based upon what Administrative Agent
reasonably believes was in fact the Leverage Ratio as of the last day of
the prior Fiscal Quarter.
"Asset Value" means, as of any date of determination and with
respect to any Revenue-Producing Property owned by a Person as of such
date, an amount equal to (a) the Adjusted NOI of such Person from such
Real Property for the previous four full consecutive Fiscal Quarters
divided by (b) the Capitalization Rate. Notwithstanding the foregoing, if
the Revenue-Producing Property has been owned for less than one quarter,
the "Asset Value" shall equal the purchase price paid, net of fees and
closing costs; and if the Revenue-Producing Property has been owned for at
least one quarter but less than four quarters, the "Asset Value" shall be
an amount equal to (i) the Adjusted NOI from such Real Property for the
quarterly history available during ownership, annualized, divided by (ii)
the Capitalization Rate. In determining Adjusted NOI for the purposes of
this definition, (1) that portion of Adjusted NOI attributable to leases
that were in effect during the calculation period, but which have been
terminated as of the date of determination, shall be deducted from the
calculation, (2) proforma annual Adjusted NOI (as reasonably determined by
Administrative Agent) with respect to newly signed and currently effective
leases which have been in effect for less than one full quarter shall be
added to the calculation (provided, that following one full quarter during
which any such new lease has been in effect, the proforma Adjusted NOI for
such lease shall be converted to the actual Adjusted NOI attributable to
such lease, as reasonably determined by Administrative Agent, for such
quarter or such longer period of time that the Lease has been in effect,
annualized), and (3) no deductions (or additions) shall be made from (or
to) NOI in respect of extraordinary or unusual one-time expenses (or
income) in respect of any such Revenue-Producing Property.
"Bank" means each bank whose name is set forth in the signature
pages of this Agreement and each lender which may hereafter become a party
to this Agreement pursuant to Section 2.8 or Section 11.8.
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"Banking Day" means any Monday, Tuesday, Wednesday, Thursday or
Friday, other than a day on which commercial banks are authorized or
required to be closed in California or New York City.
"Bayshore Property" means the Real Property owned by the Operating
Partnership located in Brisbane, California.
"Borrowers" means, collectively, (a) Parent, (b) Operating
Partnership, (c) the Other Existing Borrowers, and (d) any other
Wholly-Owned Subsidiary of the Operating Partnership that hereafter
executes a Joinder Agreement pursuant to Section 5.13. Borrowers are
jointly and severally obligated with respect to the Obligations.
"Borrowing Base" means, as of any date of determination, an amount
equal to (a) the sum of (i) fifty percent (50%) of the aggregate Asset
Values of the Revenue-Producing Properties that are Qualified Unencumbered
Asset Pool Properties in the Unencumbered Asset Pool, plus (ii) fifty
percent (50%) of Borrower's Invested Cash in the Development Properties
that are Qualified Unencumbered Asset Pool Properties in the Unencumbered
Asset Pool, less (b) the then total outstanding balance of all unsecured
Indebtedness of Parent and its Subsidiaries (excluding the Loan).
Notwithstanding the 50% advance rate specified in subparagraph (a)(i)
above, the applicable advance rate with respect to the KOP Property shall
be 45% until such time as the Operating Partnership or a Borrower that is
a Wholly-Owned Subsidiary of the Operating Partnership owns fee simple
title to such property (as opposed to simply an 89% interest in the entity
that owns such property).
"Capital Improvement Reserve" means with respect to any
Revenue-Producing Property now or hereafter owned by the Borrowers or
their Subsidiaries for any period of time, an amount equal to an
annualized amount of thirty cents ($.30) per year multiplied by the Net
Rentable Area contained therein.
"Capital Lease Obligations" means all monetary obligations of a
Person under any leasing or similar arrangement which, in accordance with
Generally Accepted Accounting Principles, is classified as a capital
lease.
"Capitalization Rate" means nine and three quarters percent (9.75%).
Any change to the Capitalization Rate shall be subject to the prior
written approval of the Borrowers and the Requisite Banks.
"Cash" means, when used in connection with any Person, all cash,
marketable securities and other highly liquid cash equivalents (not
including restricted cash and tenant deposits) owned by that Person that
are treated as cash in accordance with Generally Accepted Accounting
Principles consistently applied.
"Cash Flow Coverage" means, as of the last day of each Fiscal
Quarter, the ratio of (a) EBITDA of Parent and its Subsidiaries for the
fiscal period consisting of that Fiscal Quarter and the three immediately
preceding Fiscal Quarters, to (b) the Interest Expense for that fiscal
period.
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"Certificate" means a certificate signed by a Senior Officer or
Responsible Official (as applicable) of the Person providing the
certificate.
"Closing Date" means the time and Banking Day on which the
conditions set forth in Section 8.1 are satisfied or waived. The
Administrative Agent shall notify Borrowers and the Banks of the date that
is the Closing Date.
"Code" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"Commitments" means the commitments of each of the Banks (as
initially specified in Schedule 1.1 hereto) to make Advances under this
Agreement, as such Commitments may increase or decrease pursuant to the
terms of this Agreement.
"Commitments Assignment and Acceptance" means an assignment and
acceptance agreement substantially in the form of Exhibit A.
"Committed Advance" means an Advance made to Borrowers by any Bank
in accordance with its Commitment pursuant to Section 2.1.
"Committed Loans" means Loans that are comprised of Committed
Advances.
"Compliance Certificate" means a certificate in the form of Exhibit
B, properly completed and signed by a Senior Officer of Borrowers.
"Confidential Information" means (i) all of the terms, covenants,
conditions or agreements set forth in any letters of intent or in this
Agreement or any amendments hereto and any related agreements of whatever
nature, (ii) the information and reports provided in compliance with
Article 7 of this Agreement, (iii) any and all information provided,
disclosed or otherwise made available to the Administrative Agent and the
Banks including, without limitation, any and all plans, maps, studies
(including market studies), reports or other data, operating expense
information, as-built plans, specifications, site plans, drawings, notes,
analyses, compilations, or other documents or materials relating to the
properties or their condition or use, whether prepared by Borrowers or
others, which use, or reflect, or that are based on, derived from, or are
in any way related to the foregoing, and (iv) any and all other
information of Borrowers that the Administrative Agent or any Bank may
have access to including, without limitation, ideas, samples, media,
techniques, sketches, specifications, designs, plans, forecasts, financial
information, technical information, drawings, works of authorship, models,
inventions, know-how, processes, apparatuses, equipment, algorithms,
financial models and databases, software programs, software source
documents, manuals, documents, properties, names of tenants or potential
tenants, vendors, suppliers, distributors and consultants, and formulae
related to the current, future, and proposed products and services of
Borrowers or tenants or potential tenants (including, without limitation,
information concerning research, experimental work, development, design
details and specifications, engineering, procurement requirements,
purchasing, manufacturing, customer lists, investors, employees, clients,
business and contractual relationships, business forecasts, and sales and
marketing plans). Such Confidential Information may
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be disclosed or accessible to the Administrative Agent and the Banks as
embodied within tangible material (such as documents, drawings, pictures,
graphics, software, hardware, graphs, charts, or disks), orally, or
visually.
"Contractual Obligation" means, as to any Person, any provision of
any outstanding security issued by that Person or of any material
agreement, instrument or undertaking to which that Person is a party or by
which it or any of its Property is bound.
"Controlled Entity" means a Person (a) that is a Subsidiary of
Parent, (b) that is a general partnership or a limited partnership in
which the Operating Partnership or a Wholly-Owned Subsidiary of the
Operating Partnership is the sole managing general partner and such
managing general partner has the sole power to (i) sell all or
substantially all of the assets of such Person, (ii) incur Indebtedness in
the name of such Person, (iii) xxxxx x Xxxx on all or any portion of the
assets of such Person and (iv) otherwise generally manage the business and
assets of such Person or (c) that is a limited liability company for which
the Operating Partnership or a Wholly-Owned Subsidiary of the Operating
Partnership is the sole manager and such manager has the sole power to do
the acts described in subclauses (i) through (iv) of clause (b) above.
"Debt Offering" means the issuance and sale by any Borrower of any
debt securities of such Borrower.
"Debt Service" means for any period, the sum of all Interest Expense
and mandatory or regularly scheduled principal payments due and payable
during such period excluding any balloon payments due upon maturity of any
indebtedness. Debt Service shall include the portion of rent payable by a
Person during such period under Capital Lease Obligations that should be
treated as principal in accordance with Generally Accepted Accounting
Principles.
"Debtor Relief Laws" means the Bankruptcy Code of the United States
of America, as amended from time to time, and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws
from time to time in effect affecting the rights of creditors generally.
"Default" means any event that, with the giving of any applicable
notice or passage of time specified in Section 9.1, or both, would be an
Event of Default.
"Defaulting Bank" means (a) any Bank that has failed to fund any
Advance within two (2) Banking Days after such funding is required
pursuant to this Agreement; or (b) any Bank that has (i) breached any
other material term or condition of this Agreement or (ii) failed to make
any other payment to Administrative Agent (whether such payment is a
reimbursement for costs, expenses or attorneys' fees, an indemnity
payment, the repayment of erroneously paid funds, a portion of any set-off
to be turned over to Administrative Agent or otherwise) when such payment
is due and payable under this Agreement or any other Loan Document, if
such breach or failure has not been cured or paid within ten (10) days
after notice thereof from Administrative Agent to such Bank.
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"Default Rate" means the interest rate prescribed in Section 3.9.
"Designated Deposit Account" means a deposit account to be
maintained by Borrowers with U.S. Bank or one of its Affiliates, as from
time to time designated by Borrowers by written notification to the
Administrative Agent.
"Development Property" means undeveloped or partially developed real
property on which one or more Life Sciences Buildings are to be
constructed, for which all material entitlements (including proper zoning
and any needed general and/or specific plan amendments) have been obtained
and as to which building permits have been issued for the construction of
such Life Sciences Building(s). Once a "Development Property" becomes a
"Revenue-Producing Property," it shall cease to be a Development Property
for purposes of this Agreement; and in no event shall any property be
double counted as both a Development Property and a Revenue-Producing
Property for purposes of calculating the Borrowing Base, or for any other
purposes under this Agreement.
"Distribution" means, with respect to any shares of capital stock or
any warrant or option to purchase an equity security or other equity
security or interest issued by a Person, (i) the retirement, redemption,
purchase or other acquisition for Cash or for Property by such Person of
any such security or interest, (ii) the declaration or (without
duplication) payment by such Person of any dividend in Cash or in Property
on or with respect to any such security or interest, (iii) any Investment
by such Person in the holder of 5% or more of any such security or
interest if a purpose of such Investment is to avoid characterization of
the transaction as a Distribution and (iv) any other payment in Cash or
Property by such Person constituting a distribution under applicable Laws
with respect to such security or interest.
"Documentation Agent" means Royal Bank of Canada.
"Dollars" or "$" means United States dollars.
"EBITDA" means, with respect to any Person (or any asset of a
Person) for any fiscal period, the sum of (a) the Net Income of such
Person (or attributable to such asset) for that period, plus (b) any
non-operating non-recurring loss reflected in such Net Income, minus (c)
any non-operating non-recurring gain reflected in such Net Income, plus
(d) Interest Expense of such Person for that period, plus (e) the
aggregate amount of federal and state taxes on or measured by income of
such Person for that period (whether or not payable during that period),
plus (f) depreciation, amortization and all other non-cash expenses
(including non-cash officer compensation, but to be deducted when paid) of
such Person for that period, less (g) the Capital Improvement Reserve for
that period, in each case as determined in accordance with Generally
Accepted Accounting Principles; provided, that in performing the foregoing
calculation of EBITDA with respect to any Person, that portion of EBITDA
attributable to such Person's equity interests in any unconsolidated joint
ventures shall be deducted, and such Person's pro rata share of EBITDA in
such unconsolidated entities shall be added back into the calculation.
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"Eligible Assignee" means (a) another Bank, (b) with respect to any
Bank, any Affiliate of that Bank, (c) any commercial bank having a
combined capital and surplus of $5,000,000,000.00 or more, (d) the central
bank of any country which is a member of the Organization for Economic
Cooperation and Development, (e) any savings bank, savings and loan
association or similar financial institution which (A) has a net worth of
$500,000,000 or more, (B) is engaged in the business of lending money and
extending credit under credit facilities substantially similar to those
extended under this Agreement and (C) is operationally and procedurally
able to meet the obligations of a Bank hereunder to the same degree as a
commercial bank, and (f) any other financial institution (including a
mutual fund or other fund) approved by Administrative Agent and, unless an
Event of Default shall have occurred and be continuing, Parent (such
approval not to be unreasonably withheld or delayed) having total assets
of $500,000,000 or more which meets the requirements set forth in
subclauses (B) and (C) of clause (e) above; provided that each Eligible
Assignee must either (a) be organized under the Laws of the United States
of America, any State thereof or the District of Columbia or (b) be
organized under the Laws of the Cayman Islands or any country which is a
member of the Organization for Economic Cooperation and Development, or a
political subdivision of such a country, and (i) act hereunder through a
branch, agency or funding office located in the United States of America
and (ii) be exempt from withholding of tax on interest and deliver the
documents related thereto pursuant to Section 11.21.
"Employee Plan" means any (a) employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) any plan
(as defined in Section 4975(e)(1) of the Code) that is subject to Section
4975 of the Code, (c) any entity the underlying assets of which include
plan assets (as defined in 29 C.F.R. Section 2510.3-101 or otherwise under
ERISA) by reason of a plan's investment in such entity (including an
insurance company general account), or (d) a governmental plan (as defined
in Section 3(32) of ERISA or Section 414(d) of the Code) organized in a
jurisdiction within the United States of America having prohibitions on
transactions with such governmental plan substantially similar to those
contained in Section 406 of ERISA or Section 4975 of the Code.
"Equity Offering" means the issuance and sale by any Borrower of any
equity securities of such Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974,
and any regulations issued pursuant thereto, as amended or replaced and as
in effect from time to time.
"ERISA Affiliate" means each Person (whether or not incorporated)
which is required to be aggregated with Parent pursuant to Section 414 of
the Code.
"Event of Default" shall have the meaning provided in Section 9.1.
"Exception Properties" means the Landmark at Eastview Property and
the KOP Property.
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"Federal Funds Rate" means, as of any date of determination, the
rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day (or, if such
day is not a Banking Day, for the next preceding Banking Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Banking Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three (3)
Federal funds brokers of recognized standing selected by the
Administrative Agent. For purposes of this Agreement, any change in the
Alternate Base Rate due to a change in the Federal Funds Rate shall be
effective as of the opening of business on the effective date of such
change.
"Fiscal Quarter" means the fiscal quarter of Borrowers ending on
each March 31, June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of Borrowers ending on each
December 31.
"Fixed Charge Coverage" means, as of the last day of any Fiscal
Quarter, the ratio of (a) EBITDA of Parent and its Subsidiaries for the
fiscal period consisting of that Fiscal Quarter and the three immediately
preceding Fiscal Quarters to (b) the sum of (i) Debt Service of the Parent
and its Subsidiaries for such fiscal period plus (ii) all Preferred
Distributions of Parent and its Subsidiaries made with respect to such
fiscal period.
"Funds Available for Distribution" means with respect to any fiscal
period, an amount equal to Funds From Operations, minus Net Capital
Expenditures of Parent and its Subsidiaries incurred during such fiscal
period, provided such amount shall be adjusted to exclude the effects of
(a) straight lining of rents, and (b) the above/below market lease
amortization recorded in accordance with FAS 141, without duplication.
"Funds From Operations" means with respect to any fiscal period, an
amount equal to the Net Income (or Deficit) of Parent for that period
computed in accordance with generally accepted accounting principles,
excluding gains (or losses) from sales of property, plus depreciation and
amortization and after adjustments for unconsolidated partnerships and
joint ventures. Adjustments for unconsolidated partnerships and joint
ventures will be calculated to reflect Funds From Operations on the same
basis. Funds From Operations shall be reported in accordance with the
NAREIT Policy Bulletin dated April 5, 2002.
"Generally Accepted Accounting Principles" means, as of any date of
determination, accounting principles (a) set forth as generally accepted
in then currently effective Opinions of the Accounting Principles Board of
the American Institute of Certified Public Accountants, (b) set forth as
generally accepted in then currently effective Statements of the Financial
Accounting Standards Board or (c) that are then approved by such other
entity as may be approved by a significant segment of the accounting
profession in the United States of America. The term "consistently
applied," as used in connection therewith, means that the accounting
principles applied are consistent in all material respects with those
applied at prior dates or for prior periods.
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"Governmental Agency" means (a) any international, foreign, federal,
state, county or municipal government, or political subdivision thereof,
(b) any governmental or quasi-governmental agency, authority, board,
bureau, commission, department, instrumentality or public body or (c) any
court or administrative tribunal, each of competent jurisdiction.
"Gross Asset Value" means, as of the last day of any Fiscal Quarter,
(a) the EBITDA of Parent and its Subsidiaries for such quarter and the
preceding three (3) quarters, divided by the Capitalization Rate, plus (b)
Cash of Parent and its Subsidiaries, plus (c) fifty percent (50%) of
Parent's and its Subsidiaries' Invested Cash in Development Properties,
plus (d) fifty percent (50%) of all cash Investments of Parent and its
Subsidiaries in all other Investments that are permitted under Section
6.13. In determining Gross Asset Value, (i) with respect to
Revenue-Producing Properties owned by Parent and its Subsidiaries for less
than one quarter, the purchase price of such Properties shall be added to
the calculation of Gross Asset Value (provided that no EBITDA attributable
to any such Revenue-Producing Property shall be added to the calculation
of Gross Asset Value under subparagraph (a) above in order to avoid double
counting), and (ii) with respect to Revenue-Producing Properties owned by
Parent and its Subsidiaries at least one quarter but less than four
quarters, the EBITDA of Parent and its Subsidiaries attributable to such
Revenue-Producing Properties shall be annualized for purposes of the
calculation set forth in subparagraph (a) above.
"Guaranty Obligation" means, as to any Person, any (a) guarantee by
that Person of Indebtedness of, or other obligation performable by, any
other Person or (b) assurance given by that Person to an obligee of any
other Person with respect to the performance of an obligation by, or the
financial condition of, such other Person, whether direct, indirect or
contingent, including any purchase or repurchase agreement covering such
obligation or any collateral security therefor, any agreement to provide
funds (by means of loans, capital contributions or otherwise) to such
other Person, any agreement to support the solvency or level of any
balance sheet item of such other Person or any "keep-well" or other
arrangement of whatever nature given for the purpose of assuring or
holding harmless such obligee against loss with respect to any obligation
of such other Person; provided, however, that the term Guaranty Obligation
shall not include endorsements of instruments for deposit or collection in
the ordinary course of business. The amount of any Guaranty Obligation in
respect of Indebtedness shall be deemed to be an amount equal to the
stated or determinable amount of the related Indebtedness (unless the
Guaranty Obligation is limited by its terms to a lesser amount, in which
case to the extent of such amount) or, if not stated or determinable, the
reasonably anticipated liability in respect thereof as determined by the
Person in good faith pursuant to Generally Accepted Accounting Principles.
"Hazardous Materials" means substances defined as "hazardous
substances" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., or
as "hazardous", "toxic" or "pollutant" substances or as "solid waste"
pursuant to the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq., the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq., or as "friable asbestos" pursuant to the
Toxic Substances Control Act, 15 U.S.C. Section 2601
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et seq. or any other applicable Hazardous Materials Law, in each case as
such Laws are amended from time to time.
"Hazardous Materials Laws" means all Laws governing the treatment,
transportation or disposal of Hazardous Materials applicable to any of the
Real Property.
"Indebtedness" means, as to any Person (without duplication), (a)
indebtedness of such Person for borrowed money or for the deferred
purchase price of Property (excluding trade and other accounts payable in
the ordinary course of business in accordance with ordinary trade terms),
including any Guaranty Obligation, (b) indebtedness of such Person of the
nature described in clause (a) that is non-recourse to the credit of such
Person but is secured by assets of such Person, to the extent of the fair
market value of such assets as determined in good faith by such Person,
(c) Capital Lease Obligations of such Person, (d) indebtedness of such
Person arising under bankers' acceptance facilities or under facilities
for the discount of accounts receivable of such Person, (e) the undrawn
face amount of any letters of credit issued for the account of such
Person, (f) any net obligations of such Person under Swap Agreements, (g)
all liabilities secured by any mortgage, pledge, security interest, lien,
charge or other encumbrance existing on property owned or acquired subject
thereto, whether or not the liability secured thereby shall have been
assumed, and (h) without duplication, a Person's pro rata share of any of
the above-described obligations of its unconsolidated Affiliates.
Indebtedness shall include all obligations, contingent and otherwise, that
in accordance with Generally Accepted Accounting Principles should be
classified upon the obligor's balance sheet as liabilities, including all
of the foregoing whether or not so classified.
"Initial Pool Properties" means the Revenue-Producing Properties and
Development Properties, if any, described in Schedule 4.18.
"Intangible Assets" means assets that are considered intangible
assets under Generally Accepted Accounting Principles, including customer
lists, goodwill, copyrights, trade names, trademarks and patents.
"Interest Expense" means, with respect to any Person and as of the
last day of any fiscal period, the sum of (a) all interest (including
capitalized interest), fees, charges and related expenses paid or payable
(without duplication) for that fiscal period by that Person to a lender in
connection with borrowed money (including any obligations for fees,
charges and related expenses payable to the issuer of any letter of
credit) or the deferred purchase price of assets that are considered
"interest expense" under Generally Accepted Accounting Principles plus (b)
the portion of rent paid or payable (without duplication) for that fiscal
period by that Person under Capital Lease Obligations that should be
treated as interest in accordance with Financial Accounting Standards
Board Statement No. 13 minus (plus) (c) amounts received (paid) under Swap
Agreements.
"Interest Period" means, with respect to any LIBOR Rate Loan, the
related LIBOR Period.
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"Invested Cash" means all cash equity invested by the Parent or
another Borrower in a Development Property, including the purchase price,
hard construction costs and soft costs reasonably acceptable to
Administrative Agent that have been directly expended toward the
acquisition or development of such Development Property.
"Investment" means, when used in connection with any Person, any
investment by or of that Person, whether by means of purchase or other
acquisition of stock or other securities of any other Person or by means
of a loan, advance creating a debt, capital contribution, guaranty or
other debt or equity participation or interest in any other Person,
including any partnership and joint venture interests of such Person. The
amount of any Investment shall be the amount actually invested (minus any
return of capital with respect to such Investment which has actually been
received in Cash or has been converted into Cash), without adjustment for
subsequent increases or decreases in the value of such Investment.
"Joinder Agreement" means the joinder agreement with respect to this
Agreement to be executed and delivered pursuant to Section 5.13 by any
additional Borrower in the form of Exhibit C (with such changes thereto as
Administrative Agent shall in its discretion reasonably require) either as
originally executed or as it may from time to time be supplemented,
modified, amended, extended or supplanted.
"KOP Property" means that certain real property (sometimes referred
to by the Parties as the "King of Prussia Property") located in
Philadelphia, Pennsylvania, more particularly described in Schedule 4.18
hereto.
"Landmark at Eastview Property" means that certain real property
located in Westchester County, New York, as more particularly described in
Schedule 4.18 hereto.
"Laws" means, collectively, all international, foreign, federal,
state and local statutes, treaties, rules, regulations, ordinances, codes
and administrative or judicial precedents.
"Lead Arranger" means U.S. Bank.
"Letter of Credit" means a standby letter of credit which is payable
upon presentation of a sight draft and other documents, as originally
issued pursuant to this Agreement or as amended, modified, extended,
renewed or supplemented thereafter.
"Letter of Credit Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time
plus (b) the aggregate amount of all unreimbursed drawings under Letters
of Credit at such time.
"Letter of Credit Request" means the request described in Section
2.6.
"Leverage Ratio" means, as of the last day of each Fiscal Quarter,
the ratio of (a) Total Liabilities of Parent and its Subsidiaries as of
that date to (b) the Gross Asset Value as of that date.
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"LIBOR Banking Day" means any Banking Day on which dealings in
Dollar deposits are conducted by and among banks in the London interbank
market.
"LIBOR Lending Office" means, as to each Bank, its office or branch
so designated by written notice to Borrowers and the Administrative Agent
as its LIBOR Lending Office. If no LIBOR Lending Office is designated by a
Bank, its LIBOR Lending Office shall be its office at its address for
purposes of notices hereunder.
"LIBOR Period" means, as to each LIBOR Rate Loan, the period
commencing on the date specified by Borrowers pursuant to Section 2.1(c)
and ending 1, 2, 3 or 6 months (or, with the written consent of all of the
Banks, any other period) thereafter, as specified by Borrowers in the
applicable Request for Loan; provided that:
(a) The first day of any LIBOR Period shall be a LIBOR Banking
Day;
(b) Any LIBOR Period that would otherwise end on a day that is not
a LIBOR Banking Day shall be extended to the next succeeding LIBOR Banking
Day unless such LIBOR Banking Day falls in another calendar month, in
which case such LIBOR Period shall end on the next preceding LIBOR Banking
Day; and
(c) No LIBOR Period shall extend beyond the Maturity Date.
"LIBOR Rate" means, with respect to any LIBOR Rate Loan, the
interest rate per annum (rounded upwards, if necessary, to the nearest
1/100th of one percent) as determined on the basis of the offered rates
for deposits in Dollars, for the period of time comparable to such
Interest Period which appears on the Telerate page 3750 as of 11:00 a.m.
London time on the day that is two (2) LIBOR Banking Days preceding the
first day of such Interest Period; provided, however, if the rate
described above does not appear on the Telerate system on any applicable
interest determination date, LIBOR shall be the rate (rounded upwards as
described above, if necessary) for deposits in Dollars for a period
substantially equal to the Interest Period on the Reuters Page "LIBO" (or
such other page as may replace the LIBO Page on that service for the
purpose of displaying such rates), as of 11:00 a.m. (London Time), on the
day that is two (2) LIBOR Banking Days prior to the beginning of such
Interest Period. If both the Telerate and Reuters systems are unavailable,
then the rate for that date will be determined on the basis of the offered
rates for deposits in Dollars for a period of time comparable to such
Interest Period which are offered by four major banks in the London
interbank market at approximately 11:00 a.m. London time, on the day that
is two (2) LIBOR Banking Days preceding the first day of such Interest
Period as selected by Administrative Agent. The principal London office of
each of the four major London banks will be requested to provide a
quotation of its U.S. dollar deposit offered rate. If at least two such
quotations are provided, the rate for that date will be the arithmetic
mean of the quotations. If fewer than two quotations are provided, the
rate for that date will be determined on the basis of the rates quoted for
loans in Dollars to leading European banks for a period of time comparable
to such Interest Period offered by major banks in New York City at
approximately 11:00 a.m. (New York City time), on the day that is two (2)
LIBOR Banking Days preceding the first day of such Interest Period. In the
event that
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Administrative Agent is unable to obtain any such quotation as provided
above, it will be deemed that LIBOR pursuant to a LIBOR Rate Loan cannot
be determined and the provisions of Section 3.8 shall apply. In the event
that the Board of Governors of the Federal Reserve System shall impose a
Reserve Percentage with respect to LIBOR deposits of Administrative Agent,
then for any period during which such Reserve Percentage shall apply, the
LIBOR Rate shall be equal to the amount determined above divided by an
amount equal to 1 minus the Reserve Percentage.
"LIBOR Rate Advance" means an Advance made hereunder and specified
to be a LIBOR Rate Advance in accordance with Article 2.
"LIBOR Rate Loan" means a Loan made hereunder and specified to be a
LIBOR Rate Loan in accordance with Article 2.
"LIBOR Reference Bank" means U.S. Bank or such other Bank as may
be appointed by the Administrative Agent with the approval of Parent
(which shall not be unreasonably withheld).
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance, lien or charge
of any kind, whether voluntarily incurred or arising by operation of Law
or otherwise, affecting any Property, including any conditional sale or
other title retention agreement, any lease in the nature of a security
interest, and/or the filing of any financing statement (other than a
precautionary financing statement with respect to a lease that is not in
the nature of a security interest) under the Uniform Commercial Code or
comparable Law of any jurisdiction with respect to any Property.
"Life Sciences Buildings" means office buildings, office/laboratory
buildings and research or manufacturing/warehouse buildings, the major
tenants of which are primarily medical, pharmaceutical, biotech or other
life sciences companies, or are otherwise affiliated with the life
sciences industry.
"Line Commitment" means, subject to Section 2.7 and Section 2.8,
One Hundred Million Dollars ($100,000,000). The respective Pro Rata Shares
of the Banks with respect to the Line Commitment are set forth in Schedule
1.1.
"Line Loan" means any Loan made under the Line Commitment.
"Line Note" means any of the promissory notes made by Borrowers to a
Bank evidencing Advances under that Bank's Pro Rata Share of the Line
Commitment, substantially in the form of Exhibit D, either as originally
executed or as the same may from time to time be supplemented, modified,
amended, renewed, extended or supplanted.
"Loan" means the aggregate of the Advances made at any one time by
the Banks pursuant to Section 2.1 and the Swing Loans made pursuant to
Section 2.5.
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"Loan Documents" means, collectively, this Agreement, the Notes,
each Joinder Agreement and any other agreements of any type or nature
hereafter executed and delivered by Borrowers to the Administrative Agent
or to any Bank in any way relating to or in furtherance of this Agreement,
in each case either as originally executed or as the same may from time to
time be supplemented, modified, amended, restated, extended or supplanted.
"Margin Stock" means "margin stock" as such term is defined in
Regulation T, U or X.
"Material Adverse Effect" means (a) a material adverse change in the
status of the business, results of operations or condition (financial or
otherwise) of Borrowers taken as a whole, and/or (b) any set of
circumstances or events which (i) has had or would reasonably be expected
to have a material adverse effect upon the validity or enforceability of
any Loan Document (other than as a result of any action or inaction of the
Administrative Agent or any Bank), or (ii) has materially impaired or
would reasonably be expected to materially impair the ability of Borrowers
to perform the Obligations.
"Maturity Date" means August 11, 2007, or if the Maturity Date has
then been extended pursuant to Section 2.10, such extended Maturity Date.
"Monthly Payment Date" means the first day of each calendar month.
"Mortgageable Ground Lease" means any lease (a) which is a direct
lease granted by the fee owner of real property, (b) which has a remaining
term (calculated one time only from the later of the Closing Date or the
date the property subject to such lease becomes part of the Unencumbered
Asset Pool) of not less than thirty (30) years, including extension
options which are exercisable solely at the discretion of a Borrower, (c)
under which no material default has occurred and is continuing, (d) with
respect to which a security interest may be granted, and (e) which
Administrative Agent has otherwise reasonably determined is financeable.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA to which Borrowers or any of
their ERISA Affiliates contribute or are obligated to contribute.
"Negative Pledge" means a Contractual Obligation (other than the
Loan Documents) that contains a covenant binding on Borrowers that
prohibits Liens on any of their Property, other than any such covenant
contained in a Contractual Obligation granting or relating to a particular
Lien which affects only the Property that is the subject of such Lien.
"Net Capital Expenditures" means with respect to any Person for any
fiscal period, an amount equal to the sum of the amount of capital
expenditures paid in cash by such Person in order to maintain the general
condition and operation of its Real Property during such fiscal period,
excluding any non-recurring capital expenditures made to update or enhance
building infrastructure or building systems on such Real Property, plus
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the amount of leasing costs (including leasing commissions and standard
tenant improvements) paid in cash by such Person with respect to its Real
Property during such fiscal period.
"Net Income" means, with respect to any Person and with respect to
any fiscal period, the net income of that Person for that period,
determined in accordance with Generally Accepted Accounting Principles,
consistently applied.
"Net Rentable Area" means with respect to any Real Property, the
floor area of any buildings, structures or improvements available for
leasing to tenants (excluding storage lockers and parking spaces), as
reasonably determined by Administrative Agent, the manner of such
determination to be consistent for all Real Property unless otherwise
approved by Administrative Agent.
"Net Worth" means, as of the last day of any Fiscal Quarter, (a)
the Gross Asset Value of the Parent and its Subsidiaries, minus (b) Total
Liabilities of Parent and its Subsidiaries as of such date.
"NOI" means, with respect to any Revenue-Producing Property for any
applicable time period, the gross rental income from such property less
the aggregate amount of all expenses incurred and/or paid in connection
with the operation and maintenance of such Revenue-Producing Property
(excluding capital expenditures) that are allocable to such time period,
computed without regard to depreciation or debt service, but otherwise
calculated in accordance with Generally Accepted Accounting Principles.
"Non-Recourse Debt" means Indebtedness of Parent or any of its
Subsidiaries for which the liability of Parent or such Subsidiary (except
with respect to fraud, Hazardous Materials Laws liability and other
customary exceptions) either is contractually limited to collateral
securing such Indebtedness or is so limited by operation of Law.
"Notes" means the Line Notes and the Swing Loan Note.
"Obligations" means all present and future obligations of every
kind or nature of Borrowers at any time and from time to time owed to the
Administrative Agent or the Banks or any one or more of them, under any
one or more of the Loan Documents, whether due or to become due, matured
or unmatured, liquidated or unliquidated, or contingent or noncontingent,
including obligations of performance as well as obligations of payment,
and including interest that accrues after the commencement of any
proceeding under any Debtor Relief Law by or against Borrowers.
"Opinions of Counsel" means the favorable written legal opinions of
Xxxxxx & Xxxxxxx LLP and Xxxxxxx LLP, counsel to Borrowers, in form and
substance reasonably satisfactory to Administrative Agent, respectively,
together with copies of all factual certificates and legal opinions
delivered to such counsel in connection with such opinion upon which such
counsel has relied.
"Party" means any Person other than the Administrative Agent and the
Banks, which now or hereafter is a party to any of the Loan Documents.
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"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereof established under ERISA.
"Pension Plan" means any "employee pension benefit plan" (as such
term is defined in Section 3(2) of ERISA), other than a Multiemployer
Plan, which is subject to Title IV of ERISA and with respect to Borrowers
is maintained by Borrowers or to which Borrowers contribute or have an
obligation to contribute, and with respect to any Subsidiary of any
Borrower is maintained by such Subsidiary or to which such Subsidiary
contributes or has an obligation to contribute.
"Permitted Business Activities" means the acquisition, development,
renovation, ownership, leasing and operation of Life Sciences Buildings
(including Development Properties that will contain Life Sciences
Buildings following completion of development).
"Permitted Encumbrances" means:
(a) Inchoate Liens incident to construction on or maintenance of
Property; or Liens incident to construction on or maintenance of Property
now or hereafter filed of record for which adequate reserves have been set
aside (or deposits made pursuant to applicable Law) and which are being
contested in good faith by appropriate proceedings and have not proceeded
to final judgment (which judgment shall not be deemed "final" if it is
subject to a currently effective appeal); provided that, by reason of
nonpayment of the obligations secured by such Liens, no such Property is
subject to a material impending risk of loss or forfeiture;
(b) Liens for taxes and assessments on Property which are not yet
past due; or Liens for taxes and assessments on Property for which
adequate reserves have been set aside and are being contested in good
faith by appropriate proceedings and have not proceeded to final judgment
(which judgment shall not be deemed "final" if it is subject to a
currently effective appeal); provided that, by reason of nonpayment of the
obligations secured by such Liens, no such Property is subject to a
material impending risk of loss or forfeiture;
(c) defects and irregularities in title to any Property which in the
aggregate do not materially impair the fair market value or use of the
Property for the purposes for which it is or may reasonably be expected
to be held;
(d) easements, exceptions, reservations, or other agreements for the
purpose of pipelines, conduits, cables, wire communication lines, power
lines and substations, streets, trails, walkways, drainage, irrigation,
water, and sewerage purposes, dikes, canals, ditches, the removal of oil,
gas, coal, or other minerals, and other like purposes affecting Property
which in the aggregate do not materially burden or impair the fair market
value or use of such Property for the purposes for which it is or may
reasonably be expected to be held;
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(e) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental Agency
with respect to, the use of any Property;
(f) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental Agency
with respect to, any right, power, franchise, grant, license, or permit;
(g) present or future zoning laws and ordinances or other laws and
ordinances restricting the occupancy, use, or enjoyment of Property which
in the aggregate do not materially burden or impair the fair market value
or use of such Property for the purposes for which it is or may reasonably
be expected to be held;
(h) statutory Liens, other than those described in clauses (a) or
(b) above, arising in the ordinary course of business (but not in
connection with the incurrence of any Indebtedness) with respect to
obligations which are not delinquent or are being contested in good faith,
provided that, if delinquent, adequate reserves have been set aside with
respect thereto and, by reason of nonpayment, no Property is subject to a
material impending risk of loss or forfeiture;
(i) covenants, conditions, and restrictions affecting the use of
Property which may not give rise to any Lien against such Property and
which in the aggregate do not materially impair the fair market value or
use of the Property for the purposes for which it is or may reasonably be
expected to be held;
(j) rights of tenants as tenants only under leases and rental
agreements covering Property entered into in the ordinary course of
business of the Person owning such Property;
(k) Liens consisting of any right of offset, or statutory bankers'
lien, on bank deposit accounts maintained in the ordinary course of
business so long as such bank deposit accounts are not established or
maintained for the purpose of providing such right of offset or bankers'
lien;
(l) Liens consisting of pledges or deposits to secure obligations
under workers' compensation laws or similar legislation, including Liens
of judgments thereunder which are not currently dischargeable (provided
that in no event shall any such Liens constitute liens against the
Borrowers' Real Property);
(m) Liens consisting of pledges or deposits of property to secure
performance in connection with operating leases made in the ordinary
course of business to which any Borrower or any of its Subsidiaries is a
party as lessee (provided that in no event shall any such Liens constitute
liens against the Borrowers' Real Property);
(n) Liens consisting of deposits of property to secure bids made
with respect to, or performance of, contracts (other than contracts
creating or evidencing an extension of credit to the depositor) in the
ordinary course of business (provided that in no event shall any such
Liens constitute liens against the Borrowers' Real Property);
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(o) Liens consisting of deposits of property to secure (or in lieu
of) surety, appeal or customs bonds in proceedings to which any Borrower
or any of its Subsidiaries is a party in the ordinary course of business
(provided that in no event shall any such Liens constitute liens against
the Borrowers' Real Property); and
(p) precautionary UCC financing statement filings made in connection
with operating leases and not constituting Liens.
"Permitted Right of Others" means a Right of Others consisting of
(a) an interest (other than a Lien that is not a Permitted Encumbrance, a
legal or equitable co-ownership interest, an option or right to acquire a
legal or equitable co-ownership interest and any interest of a ground
lessor under a ground lease), that does not materially impair the fair
market value or use of Property for the purposes for which it is or may
reasonably be expected to be held, (b) an option or right to acquire a
Lien that would be a Permitted Encumbrance, (c) the subordination of a
lease or sublease in favor of a financing entity and (d) a license, or
similar right, of or to Intangible Assets granted in the ordinary course
of business.
"Person" means any individual or entity, including a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated
organization, business association, firm, joint venture, Governmental
Agency, or other entity.
"Preferred Distributions" means for any period, the amount of any
and all Distributions due and payable to the holders of Preferred Equity.
"Preferred Equity" means any form of preferred stock (whether
perpetual, convertible or otherwise) or other ownership or beneficial
interest in Parent or any of its Subsidiaries that entitles the holders
thereof to preferential payment or distribution priority with respect to
dividends, assets or other payments over the holders of any other stock or
other ownership or beneficial interest in such Person.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Pro Rata Share" means, with respect to each Bank, the percentage
derived by dividing that Bank's Commitment by the aggregate Line
Commitment, which shall initially be as set forth opposite the name of
that Bank on Schedule 1.1, as such percentage may be increased or
decreased pursuant to Section 2.8 or pursuant to a Commitments Assignment
and Acceptance executed in accordance with Section 11.8.
"Qualified Unencumbered Asset Pool Property" means a
Revenue-Producing Property or a Development Property that (a) other than
as specified below with respect to the Exception Properties, is wholly
owned in fee simple absolute by the Operating Partnership or any other
Borrower that is a Wholly-Owned Subsidiary of the Operating Partnership,
(b) is leased in accordance with Section 5.17, (c) does not have any
title, survey, environmental or other defects that would reasonably be
expected to materially impair the value, use of or ability to sell or
refinance such property, (d) is Unencumbered,
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and (e) would not cause the Borrowers to be in violation of the covenants
set forth in Section 5.17. Notwithstanding subparagraph (a) above in this
definition, (i) with respect to the Landmark at Eastview Property, for a
period not to exceed one year from the Closing Date, the Operating
Partnership or any other Borrower that is a Wholly-Owned Subsidiary of the
Operating Partnership may own a leasehold interest (as opposed to a fee
simple absolute interest) pursuant to a Mortgageable Ground Lease in such
property (provided, however, that should the Operating Partnership or any
other such Borrower not obtain fee simple title to such property for $1.00
within one year of the Closing Date, the Landmark at Eastview Property
will cease to be a Qualified Unencumbered Asset Pool Property, and may not
be included within the Unencumbered Asset Pool for purposes of the
Borrowing Base, or any other purposes hereunder), and (ii) with respect to
the KOP Property, the Operating Partnership or a Wholly-Owned Subsidiary
of the Operating Partnership need not own such property directly, provided
that the Operating Partnership or another Borrower that is a Wholly-Owned
Subsidiary of the Operating Partnership (A) owns at least 89% of the
equity interests (as reasonably determined by Agent) of the entity that
owns such KOP Property and (B) controls 100% of the cash flow from such
KOP Property.
"Real Property" means, as of any date of determination, all real
property then or theretofore owned, leased or occupied by any of
Borrowers.
"Reference Rate" means the variable annual rate of interest
announced from time to time by the Administrative Agent as its "prime
rate," which rate is a reference rate and does not necessarily represent
the lowest or best rate charged to any customer. It is a rate set by the
Administrative Agent based upon various factors including the
Administrative Agent's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing
some loans, which may be priced at, above, or below such announced rate.
Any change in the Reference Rate announced by the Administrative Agent
shall take effect at the opening of business on the day on which such
change in the base rate becomes effective.
"Regulation D" means Regulation D, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other regulation
in substance substituted therefor.
"Regulations T, U and X" means Regulations T, U and X, as at any
time amended, of the Board of Governors of the Federal Reserve System, or
any other regulations in substance substituted therefor.
"Related Venture" means a corporation, limited liability company,
partnership or other Person in which the Operating Partnership or a
Subsidiary of the Operating Partnership, owns, directly or indirectly, a
minority interest (and is not a Subsidiary).
"Rent Roll" means a report prepared by a Borrower showing for the
Real Property owned by it, its occupancy, lease expiration dates, lease
rent and other information in substantially the form presented to the
Administrative Agent prior to the date hereof or in such other form as may
have been reasonably approved by the Administrative Agent.
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"Request for Loan" means a written request for a Loan substantially
in the form of Exhibit E, signed by a Responsible Official of any of
Borrowers, on behalf of Borrowers, and properly completed to provide all
information required to be included therein.
"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, or judgment, award,
decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"Requisite Banks" means (a) as of any date of determination if the
Commitments are then in effect, Banks having in the aggregate 66-2/3% or
more of the Commitments then in effect and (b) as of any date of
determination if the Commitments have then been suspended or terminated
and there is then any Indebtedness evidenced by the Notes, Banks holding
Notes evidencing in the aggregate 66-2/3% or more of the aggregate
Indebtedness then evidenced by the Notes.
"Reserve Percentage" means for any day with respect to a LIBOR Rate
Loan, the maximum rate (expressed as a decimal) at which any lender
subject thereto would be required to maintain reserves (including, without
limitation, all base, supplemental, marginal and other reserves) under
Regulation D of the Board of Governors of the Federal Reserve System (or
any successor or similar regulations relating to such reserve
requirements) against "Eurocurrency Liabilities" (as that term is used in
Regulation D or any successor or similar regulation), if such liabilities
were outstanding. The Reserve Percentage shall be adjusted automatically
on and as of the effective date of any change in the Reserve Percentage.
"Responsible Official" means (a) when used with reference to a
Person other than an individual, any corporate officer of such Person,
general partner or managing member of such Person, corporate officer of a
corporate general partner or managing member of such Person, or corporate
officer of a corporate general partner of a partnership that is a general
partner of such Person or corporate managing member of a limited liability
company that is a managing member of such Person, or any other responsible
official thereof duly acting on behalf thereof, and (b) when used with
reference to a Person who is an individual, such Person. The
Administrative Agent and the Banks shall be entitled to conclusively rely
upon any document or certificate that is signed or executed by a
Responsible Official of Parent or any of its Subsidiaries as having been
authorized by all necessary corporate, partnership and/or other action on
the part of Parent or such Subsidiary.
"Revenue-Producing Property" means an identifiable improved real
estate property that contains one or more completed Life Sciences
Buildings which produces revenue to a Borrower or its Subsidiary.
"Right of Others" means, as to any Property in which a Person has an
interest, any legal or equitable right, title or other interest (other
than a Lien) held by any other Person in that Property, and any option or
right held by any other Person to acquire any such
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right, title or other interest in that Property, including any option or
right to acquire a Lien; provided, however, that no covenant restricting
the use or disposition of Property of such Person contained in any
Contractual Obligation of such Person shall be deemed to constitute a
Right of Others.
"Secured Debt" means Indebtedness of Parent or any of its
Subsidiaries (including Indebtedness of a Related Venture which is the
subject of a Guaranty Obligation of Parent or a Subsidiary of Parent or,
if such Person is a partnership, of which Parent or a Subsidiary of Parent
is a general partner, Parent's or such Subsidiaries' pro rata share of any
such Indebtedness of unconsolidated Persons) that is secured by a Lien.
"Senior Officer" means (a) the chief executive officer, (b) the
chairman, (c) the chief financial officer or (d) the Executive Vice
President, in each case of any of the Borrowers or of any of their
corporate general partners or managing members, as applicable.
"Special LIBOR Circumstance" means the application or adoption after
the Closing Date of any Law or interpretation, or any change therein or
thereof, or any change in the interpretation or administration thereof by
any Governmental Agency, central bank or comparable authority charged with
the interpretation or administration thereof, or compliance by any Bank or
its LIBOR Lending Office with any request or directive (whether or not
having the force of Law) of any such Governmental Agency, central bank or
comparable authority.
"Subsidiary" means, as of any date of determination and with respect
to any Person, (a) any corporation, limited liability company, partnership
or other Person (whether or not, in any case, characterized as such or as
a joint venture), whether now existing or hereafter organized or acquired:
(i) in the case of a corporation, of which a majority of the securities
having ordinary voting power for the election of directors or other
governing body (other than securities having such power only by reason of
the happening of a contingency) are at the time beneficially owned by such
Person and/or one or more Subsidiaries of such Person, or (ii) in the case
of a partnership or limited liability company, of which a majority of the
partnership, membership or other ownership interests are at the time
beneficially owned by such Person and/or one or more of its Subsidiaries;
and (b) any other Person the accounts of which are consolidated with the
accounts of the designated parent.
"Swap Agreement" means a written agreement between Borrowers and
one or more financial institutions, including without limitation, U.S.
Bank, providing for "swap", "cap", "collar" or other interest rate
protection with respect to any Indebtedness.
"Swing Loan Bank" means U.S. Bank, in its capacity as the Swing
Loan Bank under this Agreement.
"Swing Loan Commitment" means an amount not to exceed ten percent
(10%) of the then effective Line Commitment.
"Swing Loan Note" means the note described in Section 2.5.
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"Swing Loans" means the loans described in Section 2.5 that are
evidenced by the Swing Loan Note.
"Syndication Agent" means KeyBank National Association.
"Total Liabilities" means all liabilities of a Person and its
Subsidiaries determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles and all Indebtedness and Guaranty
Obligations of such Person and its Subsidiaries, whether or not so
classified. In the event that a Person has an ownership or other equity
interest in any other Person, which investment is not consolidated in
accordance with Generally Accepted Accounting Principles (that is, such
interest is a "minority interest"), then the liabilities of a Person and
its Subsidiaries shall include such Person's or its Subsidiaries'
allocable share of all Indebtedness of such Person in which a minority
interest is owned based on such Person's respective ownership interest in
such other Person.
"to the best knowledge of" means, when modifying a representation,
warranty or other statement of any Person, that the fact or situation
described therein is known by the Person (or, in the case of a Person
other than a natural Person, known by a Responsible Official of that
Person) making the representation, warranty or other statement, or with
the exercise of reasonable due diligence under the circumstances (in
accordance with the standard of what a reasonable Person in similar
circumstances would have done) would have been known by the Person (or, in
the case of a Person other than a natural Person, would have been known by
a Responsible Official of that Person).
"201 Industrial Road Property" means that certain real property
located in San Carlos, California, more particularly described in Schedule
4.18 hereto.
"type", when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is an Alternate Base Rate Loan
or Advance, or a LIBOR Rate Loan or Advance.
"Unencumbered" means, with respect to any property, that such
property (a) is not subject to any Lien other than Permitted Encumbrances,
(b) is not subject to any Negative Pledge and (c) is not held by a Person
any of whose direct or indirect equity interests are subject to a Lien or
Negative Pledge.
"Unencumbered Asset Pool" means, as of any date of determination,
(a) the Initial Pool Properties, plus (b) each other Qualified
Unencumbered Asset Pool Property which has been added to the Unencumbered
Asset Pool pursuant to Section 2.11 as of such date, minus (c) any
Property which has been removed from the Unencumbered Asset Pool pursuant
to Section 2.11 as of such date, (d) minus any Property which has been
removed from the Unencumbered Asset Pool pursuant to Section 5.17(d) as
of such date (and plus any Qualified Unencumbered Asset Pool Property
which has been added back into the Unencumbered Asset Pool pursuant to
Section 5.17(d)).
"Unencumbered NOI" means that portion of NOI generated from
Revenue-Producing Properties that are Unencumbered and are in the
Unencumbered Asset Pool.
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"Unsecured Interest Expense" means that portion of the Interest
Expense for any time period attributable to Indebtedness or liabilities
that are not Secured Debt.
"Unsecured Interest Expense Coverage" means, as of the last day of
each Fiscal Quarter, the ratio of (a) the Unencumbered NOI of Real
Properties owned by Parent and its Subsidiaries for the fiscal period
consisting of that Fiscal Quarter and the three immediately preceding
Fiscal Quarters, to (b) Unsecured Interest Expense of Parent and its
Subsidiaries for that fiscal period. Notwithstanding the foregoing, should
a rolling 4 quarters history of Unencumbered NOI and Unsecured Interest
Expense not be available, Unencumbered NOI and Unsecured Interest Expense
will be based upon the actual quarterly history available, annualized.
"U.S. Bank" means U.S. Bank National Association, a national
banking association.
"Wholly-Owned Subsidiary" means, with respect to any Person, a
Subsidiary of such Person, 100% of the capital stock or other equity
interest of which is owned, directly or indirectly, by such Person.
1.2 Use of Defined Terms. Any defined term used in the plural shall refer
to all members of the relevant class, and any defined term used in the singular
shall refer to any one or more of the members of the relevant class.
1.3 Accounting Terms. All accounting terms not specifically defined in
this Agreement shall be construed in conformity with, and all financial data
required to be submitted by this Agreement shall be prepared in conformity with,
Generally Accepted Accounting Principles applied on a consistent basis, except
as otherwise specifically prescribed herein. In the event that Generally
Accepted Accounting Principles change during the term of this Agreement such
that the covenants contained in the definition of "Borrowing Base" and Sections
6.5 through 6.13, inclusive, would then be calculated in a different manner or
with different components, (a) Borrowers and the Banks agree to amend this
Agreement in such respects as are necessary to conform those covenants as
criteria for evaluating Borrowers' financial condition to substantially the same
criteria as were effective prior to such change in Generally Accepted Accounting
Principles and (b) Borrowers shall be deemed to be in compliance with the
covenants contained in the aforesaid Sections if and to the extent that
Borrowers would have been in compliance therewith under Generally Accepted
Accounting Principles as in effect immediately prior to such change, but shall
have the obligation to deliver each of the materials described in Article 7 to
the Administrative Agent and the Banks, on the dates therein specified, with
financial data presented in a manner which conforms with Generally Accepted
Accounting Principles as in effect immediately prior to such change.
1.4 Exhibits and Schedules. All Exhibits and Schedules to this Agreement,
either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
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1.5 References to "Borrowers and their Subsidiaries". Any reference herein
to "Borrowers and their Subsidiaries" or the like shall refer solely to
Borrowers during such times, if any, as Borrowers shall have no Subsidiaries.
1.6 Miscellaneous Terms. The term "or" is disjunctive; the term "and" is
conjunctive. The term "shall" is mandatory; the term "may" is permissive.
Masculine terms also apply to females; feminine terms also apply to males. The
term "including" is by way of example and not limitation.
ARTICLE 2
LOANS
2.1 Committed Loans-General.
(a) Subject to the terms and conditions set forth in this Agreement,
at any time and from time to time from the Closing Date through the Maturity
Date, each Bank shall, pro rata according to that Bank's Pro Rata Share of the
then applicable Line Commitment, make Advances to Borrowers under the Line
Commitment in such amounts as Borrowers may request that do not result in the
aggregate principal amount outstanding under the Line Notes (after giving effect
to all amounts requested thereunder) plus the Letter of Credit Exposure plus the
aggregate amount of Swing Loans outstanding being in excess of the lesser of (i)
the Line Commitment or (ii) the Borrowing Base; provided that in all events no
Default or Event of Default shall have occurred and be continuing and all
conditions to Advances hereunder shall have been satisfied. Subject to the
limitations set forth herein, Borrowers may borrow, repay and reborrow under
the Line Commitment without premium or penalty.
(b) The obligation of each Bank to make Advances in accordance with
its Commitment is several, and not joint and several; and no Bank shall be
obligated to advance more than its Commitment, notwithstanding the default of
any other Bank.
(c) Subject to the next sentence, each Loan shall be made pursuant
to a Request for Loan which shall specify the requested (i) date of such Loan,
(ii) type of Loan, (iii) amount of such Loan, and (iv) in the case of a LIBOR
Rate Loan, the Interest Period for such Loan. Unless the Administrative Agent
has notified, in its sole and absolute discretion, Borrowers to the contrary, a
Loan may be requested by telephone by a Responsible Official of Borrowers, in
which case Borrowers shall confirm such request by promptly delivering a Request
for Loan in person or by telecopier conforming to the preceding sentence to the
Administrative Agent. Administrative Agent shall incur no liability whatsoever
hereunder in acting upon any telephonic request for Loan purportedly made by a
Responsible Official of Borrowers, and Borrowers hereby agree to indemnify the
Administrative Agent from any loss, cost, expense or liability as a result of so
acting.
(d) Promptly following receipt of a Request for Loan or a telephonic
request for Loan, the Administrative Agent shall (by the end of business on the
same day that the request was received) notify each Bank by telephone or
telecopier (and if by telephone, promptly confirmed by telecopier) of the date
and type of the Loan, the applicable Interest Period, and that
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Bank's Pro Rata Share of the Loan. Not later than 12:00 noon, California time,
on the date specified for any Loan (which must be a Banking Day), each Bank
shall make its Pro Rata Share of the Loan in immediately available funds
available to the Administrative Agent at the Administrative Agent's Office. Upon
satisfaction or waiver of the applicable conditions set forth in Article 8, all
Advances shall be credited on that date in immediately available funds to the
Designated Deposit Account.
(e) Unless the Requisite Banks otherwise consent, each Alternate
Base Rate Loan shall be not less than $1,000,000, each LIBOR Rate Loan shall be
not less than $2,000,000 and all Loans shall be in an integral multiple of
$100,000.
(f) The Advances made by each Bank under the Line Commitment shall
be evidenced by that Bank's Line Note.
(g) A Request for Loan shall be irrevocable upon the Administrative
Agent's first notification thereof.
(h) If no Request for Loan (or telephonic request for Loan referred
to in the second sentence of Section 2.1(c), if applicable) has been made within
the requisite notice periods set forth in Section 2.2 or 2.3 prior to the end of
the Interest Period for any LIBOR Rate Loan, then on the last day of such
Interest Period, such LIBOR Rate Loan shall be automatically converted into an
Alternate Base Rate Loan in the same amount.
2.2 Alternate Base Rate Loans. Each request by Borrowers for an Alternate
Base Rate Loan shall be made pursuant to a Request for Loan (or telephonic or
other request for loan referred to in the second sentence of Section 2.1(c), if
applicable) received by the Administrative Agent, at the Administrative Agent's
Office, not later than 10:00 a.m., California time, on the date (which must be a
Banking Day) prior to the date of the requested Alternate Base Rate Loan. All
Loans shall constitute Alternate Base Rate Loans unless properly designated as a
LIBOR Rate Loan pursuant to Section 2.3.
2.3 LIBOR Rate Loans.
(a) Each request by Borrowers for a LIBOR Rate Loan shall be made
pursuant to a Request for Loan (or telephonic or other request for Loan referred
to in the second sentence of Section 2.1(c), if applicable) received by the
Administrative Agent, at the Administrative Agent's Office, not later than 10:00
a.m., California time, at least three (3) LIBOR Banking Days before the first
day of the applicable LIBOR Period.
(b) On the date which is two (2) LIBOR Banking Days before the first
day of the applicable LIBOR Period, the Administrative Agent shall confirm its
determination of the applicable LIBOR Rate (which determination shall be
conclusive in the absence of manifest error) and promptly shall give notice of
the same to Borrowers and the Banks by telephone or telecopier (and if by
telephone, promptly confirmed by telecopier).
(c) Unless the Administrative Agent and the Requisite Banks
otherwise consent, no more than five (5) LIBOR Rate Loans shall be outstanding
at any one time.
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(d) No LIBOR Rate Loan may be requested or continued during the
continuation of a Default or Event of Default.
(e) Nothing contained herein shall require any Bank to fund any
LIBOR Rate Advance in the London interbank market.
2.4 [Intentionally Omitted.]
2.5 Swing Loan Commitments.
(a) Subject to the terms and conditions set forth in this Agreement,
Swing Loan Bank agrees to lend to the Borrowers (the "Swing Loans"), and the
Borrowers may borrow (and repay and reborrow) from time to time between the
Closing Date and the date which is thirty (30) Banking Days prior to the
Maturity Date upon notice by the Borrowers to the Swing Loan Bank given in
accordance with this Section 2.5 such sums as are requested by the Borrower for
the purposes set forth in Section 5.9 that do not result in (i) an aggregate
principal amount at any one time outstanding being in excess of the Swing Loan
Commitment, and (ii) the aggregate principal amount outstanding under the Notes
(after giving effect to all amounts requested thereunder) plus the Letter of
Credit Exposure being in excess of the lesser of (A) the Line Commitment or (B)
the Borrowing Base. Swing Loans shall constitute "Loans" for all purposes
hereunder, but shall not be considered the utilization of a Bank's Pro Rata
Share of the Commitments. The funding of a Swing Loan hereunder shall constitute
a representation and warranty by the Borrowers that all of the conditions set
forth in Article 8 have been satisfied on the date of such funding (other than
advance notice requirements).
(b) The Swing Loans shall be evidenced by a separate promissory note
of the Borrowers in substantially the form of Exhibit F hereto (the "Swing Loan
Note"), dated the date of this Agreement and completed with appropriate
insertions. The Swing Loan Note shall be payable to the order of the Swing Loan
Bank in such amount as may be outstanding from time to time thereunder and shall
be payable as set forth below. The Borrowers irrevocably authorize the Swing
Loan Bank to make or cause to be made, at or about the time of the date of any
Swing Loan or at the time of receipt of any payment of principal thereof, an
appropriate notation on the Swing Loan Bank's record reflecting the making of
such Swing Loan or (as the case may be) the receipt of such payment. The
outstanding amount of the Swing Loans set forth on the Swing Loan Bank's record
shall be prima facie evidence of the principal amount thereof owing and unpaid
to the Swing Loan Bank, but the failure to record, or any error in so recording,
any such amount on the Swing Loan Bank's record shall not limit or otherwise
affect the obligations of the Borrowers hereunder or under the Swing Loan Note
to make payments of principal of or interest on any Swing Loan Note when due.
(c) Each borrowing of a Swing Loan shall be subject to the limits
for Alternate Base Rate Loans set forth in this Agreement. The Borrowers shall
request a Swing Loan by delivering to the Swing Loan Bank a Request for Loan no
later than 2:00 p.m. (California time) on the requested date specifying the
amount of the requested Swing Loan. Each such Request for Loan shall be
irrevocable and binding on the Borrowers and shall obligate the Borrowers to
accept such Swing Loan on the requested date. Notwithstanding anything herein to
the contrary, a Swing Loan shall be an Alternate Base Rate Loan that shall bear
interest
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at the Alternative Base Rate. The proceeds of the Swing Loan will be made
available by the Swing Loan Bank to the Borrowers at the Administrative Agent's
Office (on the same Banking Day that the Request for Loan was received, if
received prior to 2:00 p.m. on such day) by crediting the account of the
Borrowers at such office with such proceeds.
(d) The Swing Loan Bank shall within three (3) Banking Days after
the date a Swing Loan is made, request each Bank, including the Swing Loan Bank,
to make a Loan pursuant to Section 2.1 in an amount equal to such Bank's Pro
Rata Share of the amount of the Swing Loan outstanding on the date such notice
is given. The Borrowers hereby irrevocably authorize and direct the Swing Loan
Bank to so act on their behalf, and agree that any amount advanced to the
Administrative Agent for the benefit of the Swing Loan Bank pursuant to this
Section 2.5(d) shall be considered a Line Loan pursuant to Section 2.1. Unless
any of the events described in Section 9.1(j) shall have occurred (in which
event the procedures of Section 2.5(e) shall apply), each Bank shall make the
proceeds of its Line Loan available to the Swing Loan Bank for the account of
the Swing Loan Bank at the Administrative Agent's Office prior to 2:00 p.m.
(California time) in funds immediately available no later than the third (3rd)
Banking Day after the date such notice is given just as if the Banks were
funding directly to the Borrowers, so that thereafter such Obligations shall be
evidenced by the Line Notes. The proceeds of such Line Loan shall be immediately
applied to repay the Swing Loans.
(e) If prior to the making of a Line Loan pursuant to Section 2.5(d)
by all of the Banks, one of the events described in Section 9.1(j) shall have
occurred, each Bank will, on the date such Line Loan pursuant to Section 2.5(d)
was to have been made, purchase an undivided participating interest in the Swing
Loan in an amount equal to its Pro Rata Share of such Swing Loan. Each Bank will
immediately transfer to the Swing Loan Bank in immediately available funds the
amount of its participation and upon receipt thereof the Swing Loan Bank will
deliver to such Bank a Swing Loan participation certificate dated the date of
receipt of such funds and in such amount.
(f) Whenever at any time after the Swing Loan Bank has received from
any Bank such Bank's participating interest in a Swing Loan, the Swing Loan Bank
receives any payment on account thereof, the Swing Loan Bank will distribute to
such Bank its participating interest in such amount (appropriately adjusted in
the case of interest payments to reflect the period of time during which such
Bank's participating interest was outstanding and funded); provided, however,
that in the event that such payment received by the Swing Loan Bank is required
to be returned, such Bank will return to the Swing Loan Bank any portion thereof
previously distributed by the Swing Loan Bank to it.
(g) Each Bank's obligation to fund a Line Loan as provided in
Section 2.5(d) or to purchase participating interests pursuant to Section 2.5(e)
shall be absolute and unconditional and shall not be affected by any
circumstance (except only the failure of the Swing Loan Bank to make the request
described in Section 2.5(d)), including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Bank or the
Borrowers may have against the Swing Loan Bank, the Borrowers or anyone else for
any reason whatsoever; (ii) the occurrence or continuance of a Default or an
Event of Default; (iii) any adverse change in the condition (financial or
otherwise) of any of the Borrowers or any of their respective Subsidiaries; (iv)
any breach of this Agreement or any of the other Loan Documents by any of
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the Borrowers or any Bank; (v) the failure to satisfy all of the conditions to
disbursement set forth in Article 8; or (vi) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing. The
provisions of Section 2.9 shall apply to any Bank which fails or refuses to make
a Line Loan or fund its participation as provided herein. Each Swing Loan, once
so converted, shall cease to be a Swing Loan for the purposes of this Agreement,
but shall be a Line Loan made by each Bank under its Commitment.
2.6 Letters of Credit.
(a) Subject to the terms and conditions set forth in this Agreement,
at any time and from time to time from the Closing Date through the day that is
thirty (30) Banking Days prior to the Maturity Date, the Administrative Agent
(including any successor Administrative Agent that takes over such position from
U.S. Bank) shall issue such Letters of Credit as the Borrowers may request, for
the purposes provided in Section 5.9, upon the delivery of a written request in
the form of Exhibit G hereto (a "Letter of Credit Request") to the
Administrative Agent, provided that (i) upon issuance of such Letter of Credit,
the Letter of Credit Exposure shall not exceed ten percent (10%) of the then
effective Line Commitment, (ii) the aggregate principal amount outstanding under
the Notes (after giving effect to all amounts requested thereunder) plus the
Letter of Credit Exposure shall not exceed the lesser of (A) the Line Commitment
or (B) the Borrowing Base, (iii) the conditions set forth in Article 8 shall
have been satisfied, and (iv) in no event shall any amount drawn under a Letter
of Credit be available for reinstatement or a subsequent drawing under such
Letter of Credit. Unless the Administrative Agent otherwise consents, the term
of any Letter of Credit shall not exceed the lesser of twelve (12) months or a
period of time commencing on the issuance of the Letter of Credit and ending on
the date which is fifteen (15) days prior to the Maturity Date (but in any event
the term shall not extend beyond the Maturity Date), and no Letter of Credit
shall contain an automatic extension or renewal clause. The amount available to
be drawn under any Letter of Credit shall reduce on a dollar for dollar basis
the amount available to be drawn under the Commitments as a Loan.
(b) Each Letter of Credit Request shall be submitted to the
Administrative Agent at least three (3) Banking Days prior to the date upon
which the requested Letter of Credit is to be issued. Each such Letter of Credit
Request shall contain (i) a statement as to the purpose for which such Letter of
Credit shall be used (which purpose shall be in accordance with the terms of
Section 5.9), and (ii) a certification by a Responsible Official of the
Borrowers that the Borrowers are and will be in compliance with all covenants
under the Loan Documents after giving effect to the issuance of such Letter of
Credit. The Borrowers shall further deliver to the Administrative Agent such
additional applications and documents as the Administrative Agent may require,
in conformity with the then standard practices of its letter of credit
department in connection with the issuance of such Letter of Credit; provided
that in the event of any conflict, the terms of this Agreement shall control.
(c) The Administrative Agent shall, if it approves of the content of
the Letter of Credit Request (which approval shall not be unreasonably
withheld), and subject to the conditions set forth in this Agreement, issue the
Letter of Credit. Each Letter of Credit shall be in form and substance
satisfactory to the Administrative Agent in its reasonable discretion.
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Upon issuance of a Letter of Credit, the Administrative Agent shall provide
copies of each Letter of Credit to any Bank which requests same.
(d) Upon the issuance of a Letter of Credit, each Bank shall be
deemed to have purchased a participation therein from Administrative Agent in an
amount equal to its respective Pro Rata Share of the amount of such Letter of
Credit, provided that no Bank shall be obligated to transfer funds in such
amount to the Administrative Agent at such time.
(e) Upon the issuance of each Letter of Credit, the Borrowers shall
pay to the Administrative Agent (i) for its own account, (A) a set-up fee in the
usual and customary amount charged by the Administrative Agent's letter of
credit department, and (B) a fronting fee in the amount specified in the
Agreement Regarding Fees, and (ii) for the accounts of the Banks in accordance
with their Pro Rata Shares in such Letter of Credit, a Letter of Credit fee
calculated at the rate of the Applicable Margin per annum in effect from time to
time with respect to LIBOR Rate Loans on the amount available to be drawn under
such Letter of Credit during the period from and including the issuance date of
such Letter of Credit to its expiration or termination date. The fee specified
in subsection (ii) immediately above shall be computed on the basis of a year of
360 days and shall be payable quarterly in arrears as of the first day of each
calendar quarter (commencing with the first calendar quarter following the date
of issuance of the Letter of Credit) and on the Maturity Date.
(f) If and to the extent that any amounts are drawn upon any Letter
of Credit, the amounts so drawn shall, from the date of payment thereof by the
Administrative Agent to either the date of reimbursement thereof by the
Borrowers or repayment through a borrowing by the Borrowers of a Line Loan, bear
interest at the Alternate Base Rate. Upon the receipt by the Administrative
Agent of any draw or other presentation for payment of a Letter of Credit and
the payment by the Administrative Agent of any amount under a Letter of Credit
which is not reimbursed by the Borrowers within twenty-four (24) hours of
receipt of notice from the Administrative Agent of such draw, the Administrative
Agent shall, without further notice to or the consent of the Borrowers, direct
the Banks to fund to the Administrative Agent in accordance with Section 2.9 on
or before 12:00 noon (California time) on the next Banking Day following the
Borrowers' failure to reimburse the Administrative Agent, their respective Pro
Rata Shares of the amount so paid by the Administrative Agent as a Line Loan.
The proceeds of such funding shall be paid to the Administrative Agent to
reimburse the Administrative Agent for the payment made by it under the Letter
of Credit and shall thereafter be evidenced by the Line Notes. The provisions of
Section 2.9 shall apply to any Bank or Banks failing or refusing to fund its Pro
Rata Share of any such draw. The Banks shall be required to make such Line Loans
regardless of whether all of the conditions to disbursement set forth in Article
8 have been satisfied.
(g) If, following a draw under any Letter of Credit, but prior to
the making of a Line Loan with respect thereto under Section 2.6(f) above, one
of the events described in Section 9.1(j) shall have occurred, each Bank will
promptly pay to the Administrative Agent in immediately available funds its Pro
Rata Share of the amount drawn under such Letter of Credit, and upon receipt
thereof the Administrative Agent will deliver to such Bank a Letter of Credit
participation certificate dated the date of receipt of such funds and in such
amount funded by such Bank. The provisions of Section 2.9 shall apply to any
Bank which fails or refuses to fund its participation as provided herein.
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(h) Whenever at any time after the Administrative Agent has received
from any Bank such Bank's payment of funds for its participating interest under
a Letter of Credit, the Administrative Agent receives any payment on account
thereof, the Administrative Agent will distribute to such Bank its participating
interest in such amount (appropriately adjusted in the case of interest payments
to reflect the period of time during which such Bank's participating interest
was outstanding and funded); provided, however, that in the event that such
payment received by the Administrative Agent is required to be returned, such
Bank will return to the Administrative Agent any portion thereof previously
distributed by the Administrative Agent to it.
(i) Unless otherwise approved by Administrative Agent, each Letter
of Credit shall be in an amount of not less than $100,000.
(j) The issuance of any supplement, modification, amendment, renewal
or extension to or of any Letter of Credit shall be treated in all respects the
same as the issuance of a new Letter of Credit.
(k) The obligations of the Borrowers to the Banks and the
Administrative Agent to reimburse drawings under Letters of Credit under this
Agreement shall be absolute, unconditional and irrevocable, and shall be paid
and performed strictly in accordance with the terms of this Agreement, under all
circumstances whatsoever and irrespective of any setoff, counterclaim or defense
to payment which Borrowers may have or have had against Administrative Agent or
any of the Banks (except such as may arise out of Administrative Agent's or any
Bank's gross negligence or willful misconduct), including, without limitation,
any setoff, counterclaim or defense based upon or arising out of the following
circumstances: (i) any improper use which may be made of any Letter of Credit or
any improper acts or omissions of any beneficiary or transferee of any Letter of
Credit in connection therewith; (ii) the existence of any claim, set-off,
defense or any right which the Borrowers may have at any time against any
beneficiary or any transferee of any Letter of Credit (or persons or entities
for whom any such beneficiary or any such transferee may be acting) or the Banks
(other than the defense of payment to the Banks in accordance with the terms of
this Agreement) or any other person, whether in connection with any Letter of
Credit, this Agreement, any other Loan Document, or any unrelated transaction;
(iii) any statement or any other documents presented under any Letter of Credit
proving to be insufficient, forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect whatsoever; (iv) any
breach of any agreement between any Borrower and any beneficiary or transferee
of any Letter of Credit; (v) any irregularity in the transaction with respect to
which any Letter of Credit is issued, including any fraud by the beneficiary or
any transferee of such Letter of Credit; and (vi) payment by the Administrative
Agent under any Letter of Credit against presentation of a sight draft or a
certificate which does not comply with the terms of such Letter of Credit,
provided that such payment shall not have constituted gross negligence or
willful misconduct on the part of the Administrative Agent.
2.7 Voluntary Reduction of Commitments. Borrowers shall have the right, at
any time and from time to time, without penalty or charge, upon at least three
(3) Banking Days' prior written notice by a Responsible Official of Borrowers to
the Administrative Agent, voluntarily to reduce, permanently and irrevocably,
in aggregate principal amounts in an integral
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multiples of $1,000,000 but not less than $5,000,000, or to terminate, all or a
portion of the then undisbursed portion of the Line Commitment; provided that in
no event shall the Line Commitment be reduced to an amount less than $50,000,000
(unless terminated in its entirety). The Administrative Agent shall promptly
notify the Banks of any reduction or termination of the Line Commitment under
this Section. Any reduction of the Line Commitment shall be allocated pro rata
among the Banks.
2.8 Increase in Line Commitment.
(a) The Banks on the Closing Date of this Agreement shall be the
Banks set forth on the signature pages of this Agreement as of such Closing
Date.
(b) At any time after the Closing Date of this Agreement,
Administrative Agent may in its discretion (which discretion shall not be
arbitrarily or unreasonably exercised contrary to the requests of the Borrowers
so long as the conditions set forth below are satisfied), without the consent of
the Banks (except as specified in this Section 2.8), from time to time at the
request of the Borrowers, increase the Line Commitment (and, correspondingly,
the maximum Letter of Credit Exposure permitted under Section 2.6(a)) by (i)
admitting additional Banks hereunder (each a "Subsequent Bank"), or (ii)
increasing the Commitment of any Bank (each an "Increasing Bank"), subject to
the following conditions:
(i) each Subsequent Bank is an Eligible Assignee;
(ii) the Borrower executes (A) a new Note payable to the order
of a Subsequent Bank in the amount of its Commitment, or (B) a replacement
Note payable to the order of an Increasing Bank in the amount of its new,
increased Commitment, and (c) an amendment to the Swing Loan Note
increasing the stated amount thereof to ten percent (10%) of the increased
Line Commitment;
(iii) each Subsequent Bank executes and delivers to
Administrative Agent a signature page to this Agreement, and each
Increasing Bank executes and delivers to Administrative Agent a new
signature page to this Agreement reflecting its increased Commitment;
(iv) after giving effect to the admission of any Subsequent
Bank or the increase in the Commitment of any Increasing Bank, the Line
Commitment does not exceed $200,000,000;
(v) each increase in the Line Commitment shall be in the
amount of at least (A) $10,000,000 or a greater integral multiple of
$1,000,000, as to any Subsequent Bank, and (B) $5,000,000 or a greater
integral multiple of $1,000,000, as to any Increasing Bank;
(vi) no Event of Default exists; and
(vii) no Bank shall be an Increasing Bank without the written
consent of such Bank, which consent such Bank may withhold in its sole and
absolute discretion.
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After the admission of any Subsequent Bank or increase in the Commitment of any
Increasing Bank, Administrative Agent shall promptly provide to each Bank and to
the Borrowers copies of the signature pages of such Subsequent Bank or
Increasing Bank, and a statement of the current Commitment and Pro Rata Share of
each Bank (which may be in the form of a revised Schedule 1.1).
2.9 Administrative Agent's Right to Assume Funds Available for Advances.
Unless the Administrative Agent shall have been notified by any Bank no later
than 10:00 a.m. California time on the Banking Day of the proposed funding by
the Administrative Agent of any Loan that such Bank does not intend to make
available to the Administrative Agent such Bank's portion of the total amount of
such Loan, the Administrative Agent may assume that such Bank has made such
amount available to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make available to
Borrowers a corresponding amount. If the Administrative Agent has made funds
available to Borrowers based on such assumption and such corresponding amount is
not in fact made available to the Administrative Agent by such Bank, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Bank. If such Bank does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent promptly shall notify Borrowers and Borrowers shall pay such corresponding
amount to the Administrative Agent. The Administrative Agent also shall be
entitled to recover from such Bank or Borrower interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to Borrowers to the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) from such Bank, the daily Federal Funds Rate or (ii) from the
Borrower, at the applicable rate for such Loan. Nothing herein shall be deemed
to relieve any Bank from its obligation to fulfill its Commitment or to
prejudice any rights which the Administrative Agent or Borrowers may have
against any Bank as a result of any default by such Bank hereunder.
2.10 Extension of Maturity Date. The Borrowers shall have the one-time
right and option to extend the Maturity Date to August 11, 2008 upon
satisfaction of the following conditions precedent, which must be satisfied
prior to the effectiveness of such extension of the Maturity Date:
(a) Extension Request. The Borrowers shall deliver written notice of
such request (the "Extension Request") to Administrative Agent not earlier than
one hundred twenty (120) days and not later than the date which is sixty (60)
days prior to the Maturity Date.
(b) Payment of Extension Fee. The Borrower shall pay to
Administrative Agent the extension fee pursuant to the Agreement Regarding Fees.
(c) No Default. On the date the Extension Request is given and on
the Maturity Date (as determined without regard to such extension) there shall
exist no Event of Default.
(d) Representations and Warranties. On the date of such Extension
Request the Borrowers shall deliver to Administrative Agent a Certificate of a
Responsible Official
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signed by a Senior Officer on behalf of Borrowers stating that the
representations and warranties contained in Article 4 (other than (i)
representations and warranties which expressly speak as of a particular date or
are no longer true and correct as a result of a change which is not in violation
of this Agreement and (ii) as otherwise disclosed by Borrowers and approved in
writing by the Requisite Banks) will be true and correct in all material
respects, both immediately before and after giving effect to the Extension
Request, as though such representations and warranties were made on and as of
that date.
2.11 Unencumbered Asset Pool. Borrowers may at any time add a Qualified
Unencumbered Asset Pool Property to the Unencumbered Asset Pool pursuant to this
Section 2.11, which process shall be initiated by delivery by Borrowers to the
Administrative Agent (which the Administrative Agent shall promptly distribute
to the Banks) of a description, in reasonable detail, of the Qualified
Unencumbered Asset Pool Property, the most recent year operating income
statement related thereto (to the extent available), cash flow projections for
such property for the next twelve (12) months, a description of all tenants and
leases with respect thereto, a certification of a Senior Officer of the
Borrowers that Parent has obtained a reasonably current (but in no event older
than twelve months) Phase I environmental site assessment prepared by a
qualified independent expert with respect to the property which provides that
there are no recognized environmental conditions thereon that require further
action, and other written materials reasonably requested by any Bank to the
extent reasonably available to Borrowers without undue expense or effort.
Notwithstanding the satisfaction of all other criteria specified in this
Agreement, no Qualified Unencumbered Asset Pool Property presented by Borrowers
for inclusion in the Unencumbered Asset Pool shall be deemed added to and to
constitute part of the Unencumbered Asset Pool until such time as Administrative
Agent shall have determined that such property meets all the requirements of a
Qualified Unencumbered Asset Pool Property under this Agreement (or any such
requirements shall have been waived in writing by the Requisite Banks), and the
Requisite Banks shall have approved in their reasonable discretion the inclusion
of such Qualified Unencumbered Asset Pool Property in Unencumbered Asset Pool,
and Administrative Agent so notifies the Parent and the Banks in writing.
Borrowers may remove a property from the Unencumbered Asset Pool by delivery to
the Administrative Agent (for distribution to the Banks) of a written notice to
that effect, accompanied by a Certificate of a Senior Officer of Borrowers
setting forth the revised Borrowing Base as of the most recently-ended Fiscal
Quarter resulting from such removal, which removal shall be effective on the
third (3rd) day after the date of such notice. Administrative Agent may, upon
five (5) Banking Days' notice to Borrowers, remove any property from the
Unencumbered Asset Pool Property which at any time fails to continue to meet the
requirements of a Qualified Unencumbered Asset Pool Property, as specified in
this Agreement.
2.12 Representative of Borrower. Without limiting Section 11.23 or Exhibit
H hereto, each of Borrowers hereby appoints Parent as its agent, attorney-in-
fact and representative for the purpose of making Requests for Loans, Letter of
Credit Requests, payment and prepayment of Loans, the giving and receipt of
notices by and to Borrowers under this Agreement and all other purposes
incidental to any of the foregoing. Each of Borrowers agrees that any action
taken by Parent as the agent, attorney- in-fact and representative of such
Borrowers shall be binding on such Borrowers to the same extent as if directly
taken by such Borrower.
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ARTICLE 3
PAYMENTS AND FEES
3.1 Principal and Interest.
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Advance from the date thereof until payment in full is
made and shall accrue and be payable at the rates set forth or provided for
herein before and after Default, before and after maturity, before and after
judgment, and before and after the commencement of any proceeding under any
Debtor Relief Law, with interest on overdue interest at the Default Rate in each
case to the fullest extent permitted by applicable Laws. Interest shall be
computed on a 360-day year, and actual days elapsed.
(b) Interest accrued on each Alternate Base Rate Loan shall be due
and payable on each Monthly Payment Date. Except as otherwise provided in
Section 3.9, the unpaid principal amount of any Alternate Base Rate Loan shall
bear interest at a fluctuating rate per annum equal to the Alternate Base Rate.
Each change in the interest rate under this Section 3.1(b) due to a change in
the Alternate Base Rate shall take effect simultaneously with the corresponding
change in the Alternate Base Rate.
(c) Interest accrued on each LIBOR Rate Loan shall be due and
payable on each Monthly Payment Date. Except as otherwise provided in Section
3.9, the unpaid principal amount of any LIBOR Rate Loan shall bear interest at a
rate per annum equal to the LIBOR Rate for that LIBOR Rate Loan plus the
Applicable Margin.
(d) In the event that any additional interest becomes due and
payable for any period with respect to a Loan as a result of the Applicable
Margin being determined based on the Leverage Ratio or any change in the
Leverage Ratio, and the interest for such period has previously been paid by the
Borrowers, the Borrowers shall pay to the Administrative Agent for the account
of the Banks the amount of such increase within ten (10) days of demand.
(e) If not sooner paid, the principal Indebtedness evidenced by the
Notes shall be payable as follows:
(i) the amount, if any, by which the principal Indebtedness
evidenced by the Notes (after giving effect to all amounts requested
thereunder) plus the Letter of Credit Exposure, at any time exceeds the
then applicable Line Commitment shall be payable immediately upon demand;
(ii) the amount, if any, by which the principal Indebtedness
evidenced by the Notes (after giving effect to all amounts requested
thereunder) plus the Letter of Credit Exposure, at any time exceeds the
Borrowing Base shall be payable immediately upon demand; and
(iii) the principal Indebtedness evidenced by the Notes shall
in any event be payable on the Maturity Date.
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(f) The Notes may, at any time and from time to time, voluntarily
be paid or prepaid in whole or in part without premium or penalty, except that
with respect to any voluntary prepayment under this Section, (i) any partial
prepayment shall be not less than $1,000,000, (ii) the Administrative Agent
shall have received written notice of any prepayment by 10:00 a.m., California
time on the date of prepayment (which must be a Banking Day) in the case of an
Alternate Base Rate Loan, and, in the case of a LIBOR Rate Loan, three (3)
Banking Days before the date of prepayment, which notice shall identify the date
and amount of the prepayment and the Loan(s) being prepaid, (iii) any payment or
prepayment of all or any part of any LIBOR Rate Loan on a day other than the
last day of the applicable Interest Period shall be subject to Section 3.8(e)
and (iv) upon any partial prepayment of a LIBOR Rate Loan that reduces it below
$2,000,000, the remaining portion thereof shall automatically convert to an
Alternate Base Rate Loan. Notwithstanding the foregoing, no prior notice shall
be required for the prepayment of any Swing Loan.
(g) All of the Borrowers' interest in the gross proceeds of each
and every sale or refinancing of any Property in the Unencumbered Asset Pool or
of a sale of a Borrower as permitted by Section 6.18, less all reasonable costs,
expenses and commissions paid to unrelated parties and less any Indebtedness
(other than the Obligations) secured by such asset to be satisfied as a part of
such sale or refinance, shall be promptly paid by the Borrowers to the
Administrative Agent for the account of the Banks as a prepayment of the Loans
to the extent of the outstanding balance of the Loans (provided that such
amounts may at Borrower's option be deposited with Administrative Agent as
security for the Obligations and applied against the Obligations upon the
expiration of the next succeeding LIBOR Periods, if applicable, following the
occurrence of such event requiring such prepayment, to minimize the payment of
costs pursuant to Section 3.8(e)). In the event any amounts are deposited
pursuant to this paragraph, the Borrowers may obtain a release of amounts from
such collateral account for such purposes as proceeds of the Loans may be used
hereunder provided that the Borrowers would otherwise be entitled to an Advance
under this Agreement. The Banks may elect at any time to apply any such
deposited amounts as a prepayment of the Loan, provided that in connection with
such application no costs pursuant to Section 3.8(e) shall be charged to
Borrowers.
(h) Unless otherwise approved by the Administrative Agent, the
Borrowers shall cause all gross proceeds of each and every Debt Offering and
Equity Offering, less all reasonable costs, fees, expenses, underwriting
commissions, fees and discounts incurred in connection therewith, to be paid by
the Borrowers to the Administrative Agent for the account of the Banks as a
prepayment of the Loans within ten (10) days of the date of such offering to the
extent of the outstanding balance of the Loans (provided that such amounts may
at Borrower's option be deposited with Administrative Agent as security for the
Obligations and applied against the Obligations upon the expiration of the next
succeeding LIBOR Periods, if applicable, following the occurrence of such event
requiring such prepayment, to minimize the payment of costs pursuant to Section
3.8(e)). In the event any amounts are deposited pursuant to this paragraph, the
Borrowers may obtain a release of amounts from such collateral account for such
purposes as proceeds of the Loans may be used hereunder provided that the
Borrowers would otherwise be entitled to an Advance under this Agreement. The
Banks may elect at any time to apply any such deposited amounts as a prepayment
of the Loan, provided that in connection with such application no costs pursuant
to Section 3.8(e) shall be charged to Borrowers.
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3.2 Fees. Borrowers shall pay to U.S. Bank each of the fees specified in
the Agreement Regarding Fees as and when due in accordance therewith. Each of
the other Banks acknowledges and agrees that each such Bank shall have no right
or entitlement to participate in or be paid any portion of any fees payable to
U.S. Bank pursuant to the Agreement Regarding Fees, or otherwise, except only to
the extent (if at all) set forth in a separate written agreement between U.S.
Bank and such other Bank.
3.3 [Intentionally Omitted.]
3.4 [Intentionally Omitted.]
3.5 [Intentionally Omitted.]
3.6 [Intentionally Omitted.]
3.7 Increased Commitment Costs. If any Bank shall determine in good
faith that the introduction after the Closing Date of any applicable law, rule,
regulation or guideline regarding capital adequacy, or any change therein or any
change in the interpretation or administration thereof by any central bank or
other Governmental Agency charged with the interpretation or administration
thereof, or compliance by such Bank (or its LIBOR Lending Office) or any
corporation controlling such Bank, with any request, guideline or directive
regarding capital adequacy (whether or not having the force of Law) of any such
central bank or other authority not imposed as a result of such Bank's or such
corporation's failure to comply with any other Laws, affects or would affect the
amount of capital required or expected to be maintained by such Bank or any
corporation controlling such Bank and (taking into consideration such Bank's or
such corporation's policies with respect to capital adequacy and such Bank's
desired return on capital) determines in good faith that the amount of such
capital is increased, or the rate of return on capital is reduced, as a
consequence of its obligations under this Agreement, then, within ten (10)
Banking Days after demand of such Bank, Borrowers shall pay to such Bank, from
time to time as specified in good faith by such Bank, additional amounts
sufficient to compensate such Bank in light of such circumstances, to the extent
reasonably allocable to such obligations under this Agreement, provided that
Borrowers shall not be obligated to pay any such amount which arose prior to the
date which is ninety (90) days preceding the date of such demand or is
attributable to periods prior to the date which is ninety (90) days preceding
the date of such demand. Each Bank's determination of such amounts shall be
conclusive in the absence of manifest error.
3.8 LIBOR Costs and Related Matters.
(a) [Intentionally Omitted].
(b) If, after the date hereof, the existence or occurrence of any
Special LIBOR Circumstance:
(i) shall subject any Bank or its LIBOR Lending Office to
any tax, duty or other charge or cost with respect to any LIBOR Rate
Advance, any of its Notes evidencing LIBOR Rate Loans or its obligation to
make LIBOR Rate Advances, or shall change the basis of taxation of
payments to any Bank attributable to the principal of or
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interest on any LIBOR Rate Advance or any other amounts due under this
Agreement in respect of any LIBOR Rate Advance, any of its Notes
evidencing LIBOR Rate Loans or its obligation to make LIBOR Rate Advances,
excluding (i) taxes imposed on or measured in whole or in part by its
overall net income (including taxes on gross income imposed in lieu of net
income, minimum taxes or branch profits taxes) by (A) any jurisdiction (or
political subdivision thereof) in which it is organized or maintains its
principal office or LIBOR Lending Office or (B) any jurisdiction (or
political subdivision thereof) in which it is "doing business" and (ii)
any withholding taxes or other taxes based on gross income imposed by the
United States of America for any period with respect to which it has
failed, for any reason, to provide Borrowers with the appropriate form or
forms required by Section 11.21, to the extent such forms are then
required by applicable Laws to establish a complete exemption;
(ii) shall impose, modify or deem applicable any reserve not
applicable or deemed applicable on the date hereof (including any reserve
imposed by the Board of Governors of the Federal Reserve System, special
deposit, capital or similar requirements against assets of, deposits with
or for the account of, or credit extended by, any Bank or its LIBOR
Lending Office); or
(iii) shall impose on any Bank or its LIBOR Lending Office or
the London interbank market any other condition affecting any LIBOR Rate
Advance, any of its Notes evidencing LIBOR Rate Loans, its obligation to
make LIBOR Rate Advances or this Agreement, or shall otherwise affect any
of the same;
and the result of any of the foregoing, as determined in good faith by such
Bank, increases the cost to such Bank or its LIBOR Lending Office of making or
maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any
of its Notes evidencing LIBOR Rate Loans or its obligation to make LIBOR Rate
Advances or reduces the amount of any sum received or receivable by such Bank or
its LIBOR Lending Office with respect to any LIBOR Rate Advance, any of its
Notes evidencing LIBOR Rate Loans or its obligation to make LIBOR Rate Advances,
then, within five (5) Banking Days after demand by such Bank (with a copy to the
Administrative Agent), Borrowers shall pay to such Bank such additional amount
or amounts as will compensate such Bank for such increased cost or reduction
(determined as though such Bank's LIBOR Lending Office had funded 100% of its
LIBOR Rate Advance in the London interbank market), provided, that with respect
to any additional amount arising as a result of the occurrence of an event
described in clause (i) above, Borrowers shall not be obligated to pay any such
amount which arose prior to the date which is ninety (90) days preceding the
date of such demand or is attributable to periods prior to the date which is
ninety (90) days preceding the date of such demand. A statement of any Bank
claiming compensation under this subsection shall be conclusive in the absence
of manifest error.
(c) If, after the date hereof, the existence or occurrence of any
Special LIBOR Circumstance shall, in the good faith opinion of any Bank, make it
unlawful or impossible for such Bank or its LIBOR Lending Office to make,
maintain or fund its portion of any LIBOR Rate Loan, or materially restrict the
authority of such Bank to purchase or sell, or to take deposits of, Dollars in
the London interbank market, or to determine or charge interest rates based upon
the LIBOR Rate, and such Bank shall so notify the Administrative Agent, then
such
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Bank's obligation to make LIBOR Rate Advances shall be suspended for the
duration of such illegality or impossibility and the Administrative Agent
forthwith shall give notice thereof to the other Banks and Borrowers. Upon
receipt of such notice, the outstanding principal amount of such Bank's LIBOR
Rate Advances, together with accrued interest thereon, automatically shall be
converted to Alternate Base Rate Advances on either (1) the last day of the
LIBOR Period(s) applicable to such LIBOR Rate Advances if such Bank may lawfully
continue to maintain and fund such LIBOR Rate Advances to such day(s) or (2)
immediately if such Bank may not lawfully continue to fund and maintain such
LIBOR Rate Advances to such day(s), provided that in such event the conversion
shall not be subject to payment of a prepayment fee under Section 3.8(e). Each
Bank agrees to endeavor promptly to notify Borrowers of any event of which it
has actual knowledge, occurring after the Closing Date, which will cause that
Bank to notify the Administrative Agent under this Section, and agrees to
designate a different LIBOR Lending Office if such designation will avoid the
need for such notice and will not, in the good faith judgment of such Bank,
otherwise be materially disadvantageous to such Bank. In the event that any Bank
is unable, for the reasons set forth above (or those set forth in clause (d)
below), to make, maintain or fund its portion of any LIBOR Rate Loan, such Bank
shall fund such amount as an Alternate Base Rate Advance for the same period of
time, and such amount shall be treated in all respects as an Alternate Base Rate
Advance. Any Bank whose obligation to make LIBOR Rate Advances has been
suspended under this Section shall promptly notify the Administrative Agent and
Borrowers of the cessation of the Special LIBOR Circumstance which gave rise to
such suspension.
(d) If, with respect to any proposed LIBOR Rate Loan:
(i) the Administrative Agent reasonably determines that, by
reason of circumstances affecting the London interbank market generally
that are beyond the reasonable control of the Banks, deposits in Dollars
(in the applicable amounts) are not being offered to any Bank in the
London interbank market for the applicable LIBOR Period; or
(ii) the Requisite Banks advise the Administrative Agent that
the LIBOR Rate as determined by the Administrative Agent (i) does not
represent the effective pricing to such Banks for deposits in Dollars in
the London interbank market in the relevant amount for the applicable
LIBOR Period, or (ii) will not adequately and fairly reflect the cost to
such Banks of making the applicable LIBOR Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to Borrowers
and the Banks, whereupon until the Administrative Agent notifies Borrowers that
the circumstances giving rise to such suspension no longer exist, the obligation
of the Banks to make any future LIBOR Rate Advances shall be suspended.
(e) Except for a failure caused by any Bank's default, Borrowers
shall indemnify the Banks against any loss or expense that the Banks may sustain
or incur (including, without limitation, any loss or expense sustained or
incurred in obtaining, liquidating or employing deposits or other funds acquired
to effect, fund or maintain any LIBOR Rate Loans) as a consequence of (i) any
failure of Borrowers to make any payment when due of any amount due hereunder,
(ii) any failure of Borrowers to borrow, continue or convert a LIBOR Rate Loan
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on a date specified therefor in a notice thereof, (iii) any failure to fulfill
on the scheduled commencement date of any LIBOR Period hereunder the applicable
conditions set forth herein as prerequisites to an Advance that is to be a LIBOR
Rate Loan or to the election of a LIBOR Rate, (iv) any failure to borrow
hereunder after a request for a LIBOR Rate Loan has been given, (v) any payment
or prepayment permitted or mandated hereunder of a LIBOR Rate Loan on a date
other than the last day of the relevant LIBOR Period, including without
limitation upon acceleration following an Event of Default, or (vi) the
occurrence of any Event of Default, including but not limited to any loss or
expense sustained or incurred or to be sustained or incurred in liquidating or
employing deposits from third parties acquired to effect or maintain a LIBOR
Rate Loan. Without limiting the foregoing, such loss or expense shall
conclusively be deemed to include a "Breakage Fee" (as defined below). The term
"Breakage Fee" shall mean that sum equal to the greater of 0 or the financial
loss incurred by the Banks resulting from prepayment or failure to borrow,
calculated as the difference between the amount of interest the Banks would have
earned (from like investments in the Money Markets (as hereinafter defined) as
of the first day of the applicable LIBOR Period) had prepayment or failure to
borrow not occurred and the interest the Banks would actually earn (from like
investments in the Money Markets as of the date of prepayment or failure to
borrow) as a result of the redeployment of funds from the prepayment or failure
to borrow. Borrowers agree that the Breakage Fee shall not be discounted to its
present value. Any voluntary prepayment of a LIBOR Rate Loan shall be in an
amount equal to the remaining entire principal balance of such LIBOR Rate Loan.
The term "Money Markets" refers to one or more wholesale funding markets
available to Banks, including negotiable certificates of deposit, commercial
paper, Eurodollar deposits, bank notes, federal funds and others. Administrative
Agent shall provide to Parent a statement, signed by an officer of
Administrative Agent, explaining any such loss or expense and setting forth the
computation of the Breakage Fee pursuant to the preceding provisions which, in
the absence of manifest error, shall be conclusive and binding on Borrowers.
Notwithstanding any provision of this Agreement to the contrary, (A) each Bank
shall be entitled to fund and maintain its funding of all or any part of the
principal balance of any LIBOR Rate Loan in any manner it elects; it being
understood, however, that all determinations hereunder shall be made as if each
Bank had actually funded and maintained each LIBOR Rate Loan during the LIBOR
Period elected for such LIBOR Rate Loan through the purchase of deposits having
a term corresponding to such LIBOR Period and bearing an interest rate equal to
the LIBOR Rate for such LIBOR Period (whether or not any Bank shall have granted
any participations in such Advances), and (B) upon the prepayment of any portion
of a LIBOR Rate Loan, the remaining portion of the LIBOR Rate Loan not prepaid
shall no longer be a "LIBOR Rate Loan" and shall bear interest at the Alternate
Base Rate, and the applicable Breakage Fee shall be calculated on the entire
LIBOR Rate Loan as if the entire LIBOR Rate Loan had been prepaid.
(f) Each Bank agrees to endeavor promptly to notify Borrowers of
any event of which it has actual knowledge, occurring after the Closing Date,
which will entitle such Bank to compensation pursuant to this Section 3.8, and
agrees to designate a different LIBOR Lending Office if such designation will
avoid the need for or reduce the amount of such compensation and will not, in
the good faith judgment of such Bank, otherwise be materially disadvantageous to
such Bank. Any request for compensation by a Bank under this Section 3.8 shall
set forth the basis upon which it has been determined that such an amount is due
from Borrowers, a calculation of the amount due, and a certification that the
corresponding costs have been incurred by the Bank.
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3.9 Late Payments. If any installment of principal or interest or any
fee or cost or other amount payable under any Loan Document to the
Administrative Agent or any Bank is not paid when due, it shall thereafter bear
interest at a fluctuating interest rate per annum (the "Default Rate") at all
times equal to (i) in the case of interest or principal, the sum of the rate
otherwise applicable to the Loans, plus 2% and (ii) in the case of any other
amount, the sum of the Alternate Base Rate plus 2%, to the fullest extent
permitted by applicable Laws. Accrued and unpaid interest on past due amounts
(including, without limitation, interest on past due interest) shall be
compounded monthly, on the last day of each calendar month, to the fullest
extent permitted by applicable Laws, and shall be payable upon demand. In
addition, the Borrowers shall pay, upon demand, a late charge equal to five
percent (5%) of any amount of interest and/or principal payable on the Loans or
any other amounts payable hereunder or under the other Loan Documents which is
not paid within ten (10) days of the date when due.
3.10 Computation of Interest and Fees. Computation of interest and fees
under this Agreement shall be calculated on the basis of a year of 360 days and
the actual number of days elapsed. Interest shall accrue on each Loan for the
day on which the Loan is made; interest shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid. Any Loan
that is repaid on the same day on which it is made shall bear interest for one
day. Notwithstanding anything in this Agreement to the contrary, interest in
excess of the maximum amount permitted by applicable Laws shall not accrue or be
payable hereunder or under the Notes, and any amount paid as interest hereunder
or under the Notes which would otherwise be in excess of such maximum permitted
amount shall instead be treated as a payment of principal.
3.11 Non-Banking Days. If any payment to be made by Borrowers or any
other Party under any Loan Document shall come due on a day other than a Banking
Day, payment shall instead be considered due on the next succeeding Banking Day,
unless, in the case of a payment relating to a LIBOR Rate Loan, such next
succeeding Banking Day is in the next calendar month, in which case such payment
shall be made on the next preceding Banking Day, and the extension of time
shall be reflected in computing interest and fees.
3.12 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments pursuant to Sections
3.7, 3.8, 11.3, 11.11 and 11.22) or on the Notes or under any other Loan
Document shall be made to the Administrative Agent at the Administrative Agent's
Office for the account of each of the Banks or the Administrative Agent, as the
case may be, in immediately available funds not later than 12:00 noon California
time, on the day of payment (which must be a Banking Day). All payments received
after such time, on any Banking Day, shall be deemed received on the next
succeeding Banking Day. The amount of all payments received by the
Administrative Agent for the account of each Bank shall be immediately paid by
the Administrative Agent to the applicable Bank in immediately available funds
and, if such payment was received by the Administrative Agent by 12:00 noon
California time, on a Banking Day and not so made available to the account of a
Bank on that Banking Day, the Administrative Agent shall reimburse that Bank for
the cost to such Bank of funding the amount of such payment at the Federal Funds
Rate. All payments shall be made in lawful money of the United States of
America.
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(b) Each payment or prepayment on account of any Loan shall be
applied pro rata according to the outstanding Advances made by each Bank
comprising such Loan.
(c) Each Bank shall use its best efforts to keep a record (in
writing or by an electronic data entry system) of Advances made by it and
payments received by it with respect to each of its Notes and, subject to
Section 10.6(g), such record shall, as against Borrowers, be presumptive
evidence of the amounts owing, absent manifest error. Notwithstanding the
foregoing sentence, the failure by any Bank to keep such a record shall not
affect Borrowers' obligation to pay the Obligations.
(d) Each payment of any amount payable by Borrowers or any other
Party under this Agreement or any other Loan Document shall be made without
setoff or counterclaim and free and clear of, and without reduction by reason
of, any taxes, assessments or other charges imposed by any Governmental Agency,
central bank or comparable authority, excluding (i) taxes imposed on or measured
in whole or in part by any Bank's overall net income (including taxes on gross
income imposed in lieu of net income tax, minimum taxes or branch profits taxes)
by (A) any jurisdiction (or political subdivision thereof) in which such Bank is
organized or maintains its principal office or LIBOR Lending Office or (B) any
jurisdiction (or political subdivision thereof) in which such Bank is "doing
business" and (ii) any withholding taxes or other taxes based on gross income
imposed by the United States of America for any period with respect to which any
Bank has failed, for whatever reason, timely to provide Borrowers with the
appropriate form or forms required by Section 11.21, to the extent such forms
are then required by applicable Laws to establish a complete exemption (all such
non-excluded taxes, assessments or other charges being hereinafter referred to
as "Taxes"). To the extent that Borrowers are obligated by applicable Laws to
make any deduction or withholding on account of Taxes from any amount payable to
any Bank under this Agreement, Borrowers shall (i) make such deduction or
withholding and pay the same to the relevant Governmental Agency and (ii) pay
such additional amount to that Bank as is necessary to result in that Bank's
receiving a net after-Tax amount equal to the amount to which that Bank would
have been entitled under this Agreement absent such deduction or withholding.
3.13 Funding Sources. Nothing in this Agreement shall be deemed to
obligate any Bank to obtain the funds for any Loan or Advance in any particular
place or manner or to constitute a representation by any Bank that it has
obtained or will obtain the funds for any Loan or Advance in any particular
place or manner.
3.14 Failure to Charge Not Subsequent Waiver. Any decision by the
Administrative Agent or any Bank not to require payment of any interest
(including interest arising under Section 3.9), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a waiver
of the Administrative Agent's or such Bank's right to require full payment of
any interest (including interest arising under Section 3.9), fee, cost or other
amount payable under any Loan Document, or to calculate an amount payable by
another method that is not inconsistent with this Agreement, on any other or
subsequent occasion.
3.15 Administrative Agent's Right to Assume Payments Will be Made by
Borrowers. Unless the Administrative Agent shall have been notified by Borrowers
prior to the date on
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which any payment to be made by Borrowers hereunder is due that Borrowers do not
intend to remit such payment, the Administrative Agent may, in its discretion,
assume that Borrowers have remitted such payment when so due and the
Administrative Agent may, in its discretion and in reliance upon such
assumption, make available to each Bank on such payment date an amount equal to
such Bank's share of such assumed payment. If Borrowers have not in fact
remitted such payment to the Administrative Agent, each Bank shall forthwith on
demand repay to the Administrative Agent the amount of such assumed payment made
available to such Bank, together with interest thereon in respect of each day
from and including the date such amount was made available by the Administrative
Agent to such Bank to the date such amount is repaid to the Administrative Agent
at the Federal Funds Rate.
3.16 Calculations Detail. The Administrative Agent, and any Bank, shall
provide reasonable detail to Borrowers regarding the manner in which the amount
of any payment to the Administrative Agent and the Banks, or that Bank, under
Article 3 has been determined, within a reasonable period of time after request
by Borrowers.
3.17 Survivability. The provisions of Sections 3.7 and 3.8 shall survive
following the date on which the Commitments and all Letters of Credit are
terminated and all Loans and Obligations with respect to any Letter of Credit
hereunder are fully paid, and Borrowers shall remain obligated thereunder for
all claims under such Sections made by any Bank to Borrowers.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Borrowers represent and warrant to the Banks that:
4.1 Existence and Qualification; Power; Compliance With Laws. Parent is
a corporation duly formed, validly existing and in good standing under the Laws
of Maryland. Operating Partnership is a limited partnership, duly formed,
validly existing and in good standing under the Laws of Maryland, and each other
Borrower is a corporation, limited partnership or limited liability company duly
formed, validly existing and in good standing under the Laws of its state of
formation. Each of Borrowers is duly qualified or registered to transact
business and is in good standing in each other jurisdiction in which the conduct
of its business or the ownership or leasing of its Properties makes such
qualification or registration necessary, except where the failure so to qualify
or register and to be in good standing would not constitute a Material Adverse
Effect. Each of Borrowers has all requisite power and authority to conduct its
business, to own and lease its Properties and to execute and deliver each Loan
Document to which it is a Party and to perform its Obligations. All outstanding
shares of capital stock of Parent are duly authorized, validly issued, fully
paid and non-assessable, and no holder thereof has any enforceable right of
rescission under any applicable state or federal securities Laws. Each of
Borrowers is in compliance with all Laws and other legal requirements applicable
to its business, has obtained all authorizations, consents, approvals, orders,
licenses and permits from, and has accomplished all filings, registrations and
qualifications with, or obtained exemptions from any of the foregoing from, any
Governmental Agency that are necessary for the transaction of its business,
except where the failure so to comply, obtain authorizations, etc., file,
register,
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qualify or obtain exemptions does not constitute a Material Adverse Effect.
Parent is a "real estate investment trust" within the meaning of Section 856 of
the Code, has elected to be treated as a real estate investment trust and is
subject to federal income taxation as a real estate investment trust pursuant to
Sections 856-860 of the Code.
4.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations. The execution, delivery and performance by each of
Borrowers of the Loan Documents to which it is a Party have been duly authorized
by all necessary corporate, partnership or limited liability company action, as
applicable, and do not and will not:
(a) Require any consent or approval not heretofore obtained of any
partner, director, stockholder, security holder or creditor of Borrowers;
(b) Violate or conflict with any provision of Borrowers' charter,
articles of incorporation, bylaws or other organizational agreements, as
applicable;
(c) Result in or require the creation or imposition of any Lien or
Right of Others upon or with respect to any Property now owned or leased or
hereafter acquired by Borrowers;
(d) Violate any material Requirement of Law applicable to
Borrowers;
(e) Result in a breach of or constitute a default under, or cause
or permit the acceleration of any obligation owed under, any indenture or loan
or credit agreement or any other Contractual Obligation to which Borrowers are a
party or by which Borrowers or any of their Property is bound or affected;
and none of Borrowers is in violation of, or default under, any Requirement of
Law or Contractual Obligation, or any indenture, loan or credit agreement
described in Section 4.2(e), in any respect that constitutes a Material Adverse
Effect.
4.3 No Governmental Approvals Required. Except as previously obtained or
made, and except for consents, approvals or permits pertaining to construction
or development of a type that are routinely granted and that would not normally
be obtained before the commencement of performance and which Borrowers have no
reason to believe will not be obtained as and when required, no authorization,
consent, approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Agency is or will be required to authorize
or permit under applicable Laws the execution, delivery and performance by any
of Borrowers of the Loan Documents to which it is a Party.
4.4 Subsidiaries. Schedule 4.4 hereto correctly sets forth the names,
form of legal entity, number of shares of capital stock (or other applicable
unit of equity interest) issued and outstanding, and the record owner thereof
and jurisdictions of organization of all Subsidiaries of Parent. Unless
otherwise indicated in Schedule 4.4, all of the outstanding shares of capital
stock, or all of the units of equity interest, as the case may be, of each such
Subsidiary are owned of record and beneficially by Parent, there are no
outstanding options, warrants or other rights to purchase capital stock of any
such Subsidiary, and all such shares or equity interests so owned are duly
authorized, validly issued, fully paid and non-assessable, and were issued in
compliance
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with all applicable state and federal securities and other Laws, and are free
and clear of all Liens and Rights of Others, except for Permitted Encumbrances
and Permitted Rights of Others.
4.5 Financial Statements. All financial statements and other information
previously delivered to Administrative Agent by Borrowers fairly present in all
material respects the financial condition, results of operations, cash flows
and/or other information described therein.
4.6 No Other Liabilities; No Material Adverse Changes. Borrowers do not
have any material liability or material contingent liability required under
Generally Accepted Accounting Principles to be reflected or disclosed, and not
reflected or disclosed, in the balance sheets described in Section 4.5, other
than liabilities and contingent liabilities arising in the ordinary course of
business since the date of such financial statements. As of the Closing Date, no
circumstance or event has occurred that constitutes a Material Adverse Effect.
4.7 [Intentionally Omitted.]
4.8 Intangible Assets. Borrowers own, or possess the right to use to the
extent necessary in their respective businesses, all material trademarks, trade
names, copyrights, patents, patent rights, computer software, licenses and other
Intangible Assets that are used in the conduct of their businesses as now
operated, and no such Intangible Asset, to the best knowledge of Borrowers,
conflicts with the valid trademark, trade name, copyright, patent, patent right
or Intangible Asset of any other Person to the extent that such conflict
constitutes a Material Adverse Effect.
4.9 Public Utility Holding Company Act. None of Borrowers is a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
4.10 Litigation. Except for (a) any matter fully covered as to subject
matter and amount (subject to applicable deductibles and retentions) by
insurance for which the insurance carrier has not asserted lack of subject
matter coverage or reserved its right to do so, (b) any matter, or series of
related matters, involving a claim against Parent or any of its Subsidiaries of
less than $1,000,000, (c) matters of an administrative nature not involving a
claim or charge against Parent or any of its Subsidiaries and (d) matters set
forth in Schedule 4.10, there are no actions, suits, proceedings or
investigations pending as to which Parent or any of its Subsidiaries have been
served or have received notice or, to the best knowledge of Borrowers,
threatened against or affecting Parent or any of its Subsidiaries or any
Property of any of them before any Governmental Agency, mediator or arbitrator.
As of the Closing Date, there are no judgments outstanding against or affecting
the Parent or any of its Subsidiaries or any Property individually or in the
aggregate involving amounts in excess of $1,000,000.00
4.11 Binding Obligations. Each of the Loan Documents to which Borrowers
are a Party will, when executed and delivered by Borrowers, constitute the
legal, valid and binding obligation of Borrowers, enforceable against Borrowers
in accordance with its terms, except as enforcement may be limited by Debtor
Relief Laws or equitable principles relating to the granting of specific
performance and other equitable remedies as a matter of judicial discretion.
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4.12 No Default. No event has occurred and is continuing that is a
Default or Event of Default.
4.13 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material respects with
ERISA and any other applicable Laws to the extent that noncompliance could
reasonably be expected to have a Material Adverse Effect;
(ii) such Pension Plan has not incurred any "accumulated
funding deficiency" (as defined in Section 302 of ERISA) that could
reasonably be expected to have a Material Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043 of
ERISA, but excluding such events as to which the PBGC has by regulation
waived the requirement therein contained that it be notified within thirty
days of the occurrence of such event) has occurred that could reasonably
be expected to have a Material Adverse Effect; and
(iv) none of Parent nor any of its Subsidiaries has engaged
in any non-exempt "prohibited transaction" (as defined in Section 4975 of
the Code) that could reasonably be expected to have a Material Adverse
Effect.
(b) None of Parent nor any of its Subsidiaries has incurred or
expects to incur any withdrawal liability to any Multiemployer Plan that could
reasonably be expected to have a Material Adverse Effect.
4.14 Regulations T, U and X; Investment Company Act. No part of the
proceeds of any Loan hereunder will be used to purchase or carry, or to extend
credit to others for the purpose of purchasing or carrying, any Margin Stock in
violation of Regulations T, U and X. Neither Parent nor any of its Subsidiaries
is or is required to be registered as an "investment company" under the
Investment Company Act of 1940.
4.15 Disclosure. No written statement made by a Senior Officer to the
Administrative Agent or any Bank in connection with this Agreement, or in
connection with any Loan, as of the date thereof contained any untrue statement
of a material fact or omitted a material fact necessary to make the statement
made not misleading in light of all the circumstances existing at the date the
statement was made.
4.16 Tax Liability. Parent and its Subsidiaries have filed all tax
returns which are required to be filed, and have paid, or made provision for the
payment of, all taxes with respect to the periods, Property or transactions
covered by said returns, or pursuant to any assessment received by Parent or any
of its Subsidiaries, except (a) such taxes, if any, as are being contested in
good faith by appropriate proceedings and as to which adequate reserves have
been established and maintained and (b) immaterial taxes so long as no material
Property of Parent or any of its Subsidiaries is at impending risk of being
seized, levied upon or forfeited.
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4.17 Hazardous Materials. Except as described in Schedule 4.17, as of the
Closing Date (a) none of Borrowers, nor to the best knowledge of Borrowers, any
other Person at any time has disposed of, discharged, released or threatened the
release of any Hazardous Materials on, from or under the Real Property in
violation of any Hazardous Materials Law that would individually or in the
aggregate constitute a Material Adverse Effect, (b) to the best knowledge of
Borrowers, no condition exists that violates any Hazardous Material Law
affecting any Real Property except for such violations that would not
individually or in the aggregate constitute a Material Adverse Effect, (c) no
Real Property or any portion thereof is or has been utilized by Borrowers nor,
to the best knowledge of Borrowers, any other Person as a site for the
manufacture of any Hazardous Materials, (d) to the extent that any Hazardous
Materials are used, generated or stored by Borrowers or any other Person on any
Real Property, or transported to or from such Real Property by Borrowers or any
other Person, such use, generation, storage and transportation by Borrowers and,
to the best knowledge of Borrowers, by any other Person are in compliance with
all Hazardous Materials Laws except for such non-compliance that would not
constitute a Material Adverse Effect or be materially adverse to the interests
of the Banks, and (e) no Real Property is subject to any remediation, removal,
containment or similar action conducted by or on behalf of any Borrower or any
other Person, or with respect to any such Real Property listed on Schedule 4.17
which is subject to any such action, the estimated costs for completing such
action are as set forth on Schedule 4.17.
4.18 Initial Pool Properties. The Initial Pool Properties described on
Schedule 4.18 are, as of the Closing Date, Qualified Unencumbered Asset Pool
Properties and comprise the initial Unencumbered Asset Pool.
4.19 Property. All of the Borrowers' and their respective Subsidiaries'
properties are in good repair and condition, subject to ordinary wear and tear,
other than with respect to deferred maintenance existing as of the date of
acquisition of such property as permitted in this Section 4.19 and except for
such defects relating to properties other than properties in the Unencumbered
Asset Pool which would not have a Material Adverse Effect. The Borrowers further
have completed or caused to be completed an appropriate investigation of the
environmental condition of each such property as of the later of (a) the date of
the Borrowers' or such Subsidiaries' purchase thereof or (b) the date upon which
such property was last security for Indebtedness of such Borrower or such
Subsidiary if such financing was not closed on or about the date of the
acquisition of such property, including preparation of a "Phase I" report and,
if appropriate, a "Phase II" report, in each case prepared by a recognized
environmental consultant in accordance with customary standards which discloses
that such property is not in violation of the representations and covenants set
forth in this Agreement, unless such violation as to properties in the
Unencumbered Asset Pool has been disclosed in writing to the Administrative
Agent and satisfactory remediation actions are being taken. There are no unpaid
or outstanding real estate or other taxes or assessments on or against any
property of any Borrower or any of their respective Subsidiaries which are
payable by such Person (except only real estate or other taxes or assessments,
that are not yet due and payable). There are no pending eminent domain
proceedings against any property included within the Unencumbered Asset Pool,
and, to the knowledge of the Borrowers, no such proceedings are presently
threatened by any taking authority which may individually or in the aggregate
have a Material Adverse Effect. None of the property of Borrowers or their
respective Subsidiaries is now damaged or injured as a result of any fire,
explosion, accident, flood or other casualty in any manner which individually or
in
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the aggregate would have a Material Adverse Effect. The Real Property owned by
Parent, each of the other Borrowers and their respective Subsidiaries as of the
date hereof is set forth on Schedule 4.19 hereto.
4.20 Brokers. None of the Borrowers nor any of their respective
Subsidiaries has engaged or otherwise dealt with any broker, finder or similar
entity in connection with this Agreement or the Loans contemplated hereunder.
4.21 Other Debt. None of the Borrowers or any of their respective
Subsidiaries is in default (after expiration of all applicable grace and cure
periods) in the payment of any other Indebtedness or under any mortgage, deed of
trust, security agreement, financing agreement or indenture involving
Indebtedness of $1,000,000.00 or more or under any other material agreement or
lease to which any of them is a party. None of the Borrowers is a party to or
bound by any agreement, instrument or indenture that may require the
subordination in right or time of payment of any of the Obligations to any other
indebtedness or obligation of such Borrower. Schedule 4.21 hereto sets forth all
of the Indebtedness of the type described in Sections 6.11 and 6.12 of the
Borrowers and their respective Subsidiaries as of the date hereof.
4.22 Solvency. As of the Closing Date and after giving effect to the
transactions contemplated by this Agreement and the other Loan Documents,
including all of the Loans made or to be made hereunder, none of the Borrowers
is insolvent on a balance sheet basis such that the sum of such Person's assets
exceeds the sum of such Person's liabilities, each Borrower is able to pay its
debts as they become due, and each Borrower has sufficient capital to carry on
its business.
4.23 No Fraudulent Intent. Neither the execution and delivery of this
Agreement or any of the other Loan Documents nor the performance of any actions
required hereunder or thereunder is being undertaken by any Borrower with or as
a result of any actual intent by any of such Persons to hinder, delay or defraud
any entity to which any of such Persons is now or will hereafter become
indebted.
4.24 Transaction in Best Interests of Borrowers; Consideration. The
transaction evidenced by this Agreement and the other Loan Documents is in the
best interests of the Borrowers. The direct and indirect benefits to inure to
the Borrowers pursuant to this Agreement and the other Loan Documents constitute
substantially more than "reasonably equivalent value" (as such term is used in
Section 548 of the Bankruptcy Code) and "valuable consideration," "fair value,"
and "fair consideration" (as such terms are used in any applicable state
fraudulent conveyance law), in exchange for the benefits to be provided by the
Borrowers pursuant to this Agreement and the other Loan Documents, and but for
the willingness of the Borrowers to be jointly and severally liable as
co-borrowers for the Loan, Borrowers would be unable to obtain the financing
contemplated hereunder which financing will enable the Borrowers and their
respective Subsidiaries to have available financing to conduct and expand their
business.
4.25 No Bankruptcy Filing. None of the Borrowers nor any of their
respective Subsidiaries is contemplating either the filing of a petition by it
under any state or federal bankruptcy or insolvency laws or the liquidation of
its assets or property, and none of the
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Borrowers has any knowledge of any Person contemplating the filing of any such
petition against it or any Subsidiary.
ARTICLE 5
AFFIRMATIVE COVENANTS OTHER THAN
INFORMATION AND REPORTING REQUIREMENTS
So long as any Advance remains unpaid, or any Letter of Credit remains
outstanding, or any other Obligation remains unpaid, or any portion of the
Commitments remains in force, Borrowers and their respective Subsidiaries shall,
unless the Administrative Agent (with the written approval of the Requisite
Banks) otherwise consents:
5.1 Payment of Taxes and Other Potential Liens. Pay and discharge
promptly all taxes, assessments and governmental charges or levies imposed upon
any of them, upon their respective Property or any part thereof and upon their
respective income or profits or any part thereof, and all claims for labor,
materials or supplies that if unpaid might by law become a lien or charge upon
any of their respective Property, except that Borrowers and their respective
Subsidiaries shall not be required to pay or cause to be paid (a) any tax,
assessment, charge, levy or claim that is not yet past due, or is being
contested in good faith by appropriate proceedings so long as the relevant
entity has established and maintains adequate reserves for the payment of the
same or (b) any immaterial tax or claim so long as no material Property of
Borrowers or their Subsidiaries is at immediate risk of being seized, levied
upon or forfeited.
5.2 Preservation of Existence. Preserve and maintain their respective
existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the ownership
or leasing of their respective Properties except (a) as otherwise permitted by
this Agreement and (b) where the failure to so qualify or remain qualified would
not constitute a Material Adverse Effect.
5.3 Maintenance of Real Properties. Maintain, preserve and protect all
of their respective Real Properties in good order and condition, subject to wear
and tear in the ordinary course of business, and not permit any waste of their
respective Real Properties, except that the failure to maintain, preserve and
protect a particular item of Real Property that is at the end of its useful life
or that is not of significant value, either intrinsically or to the operations
of Borrowers or their respective Subsidiaries, shall not constitute a violation
of this covenant.
5.4 Maintenance of Insurance. Maintain liability, casualty and other
insurance (subject to customary deductibles and retentions) with responsible
insurance companies in such amounts and against such risks as is carried by
responsible companies engaged in similar businesses and owning similar assets in
the general areas in which Borrowers or such Subsidiaries, as applicable,
operate. Without limiting the foregoing, upon request of Administrative Agent,
each Borrower shall maintain for itself, and its Subsidiaries, or cause each
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of its Subsidiaries to maintain, terrorism insurance in form, substance and
amount as is reasonably satisfactory to Administrative Agent.
5.5 Compliance With Laws. Comply with all Requirements of Law
noncompliance with which constitutes a Material Adverse Effect, except that
Borrowers or such Subsidiaries need not comply with a Requirement of Law then
being contested by any of them in good faith by appropriate proceedings.
5.6 Permitted Business Activities. Engage only in Permitted Business
Activities, and only own assets and make Investments that will be used in
connection with such Permitted Business Activities and are incidental thereto.
5.7 Keeping of Records and Books of Account. Keep adequate records and
books of account reflecting all financial transactions in conformity with
Generally Accepted Accounting Principles, consistently applied.
5.8 Compliance With Agreements. Promptly and fully comply with all
Contractual Obligations to which any one or more of them is a party, except for
any such Contractual Obligations (a) the performance of which would cause a
Default or (b) then being contested by any of them in good faith by appropriate
proceedings or if the failure to comply with such agreements, indentures, leases
or instruments would not reasonably be expected to constitute a Material Adverse
Effect.
5.9 Use of Proceeds. Use the proceeds of all Loans and issuances of
Letters of Credit for working capital and general corporate purposes of
Borrowers, including the refinancing of existing and future Indebtedness, in
connection with Borrowers' Permitted Business Activities.
5.10 Hazardous Materials Laws. Keep and maintain all Real Property and
each portion thereof in compliance in all material respects with all applicable
material Hazardous Materials Laws and promptly notify the Administrative Agent
in writing (attaching a copy of any pertinent written material) of (a) any and
all material enforcement, cleanup, removal or other governmental or regulatory
actions instituted, completed or threatened in writing by a Governmental Agency
pursuant to any applicable material Hazardous Materials Laws, (b) any and all
material claims made or threatened in writing by any Person against Borrowers or
their respective Subsidiaries relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous Materials and (c)
discovery by any Senior Officer of any of Borrowers or any of their respective
Subsidiaries of any material occurrence or condition on any Real Property that
could reasonably be expected to cause such Real Property to be subject to any
restrictions on the ownership, occupancy, transferability or use of such Real
Property under any applicable Hazardous Materials Laws.
5.11 Qualified Unencumbered Asset Pool Properties. Cause each
Revenue-Producing Property and Development Property in the Unencumbered Asset
Pool to remain a Qualified Unencumbered Asset Pool Property so long as it is in
the Unencumbered Asset Pool; provided that nothing herein shall preclude the
removal of any Revenue-Producing Property or Development Property from the
Unencumbered Asset Pool pursuant to Section 2.11.
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5.12 REIT Status. Maintain the status and election of Parent as a "real
estate investment trust" under Section 856 of the Code and comply with the
dividend and other requirements applicable under Section 857(a) of the Code.
5.13 Additional Borrowers. Cause each Wholly-Owned Subsidiary of the
Operating Partnership which is not then a Borrower and which holds a
Revenue-Producing Property or a Development Property that is or will become part
of the Unencumbered Asset Pool to execute and deliver the Joinder Agreement
concurrently with the addition of such Revenue-Producing Property to the
Unencumbered Asset Pool.
5.14 Inspection of Properties and Books. Permit the Banks, through the
Administrative Agent or any representative designated by the Administrative
Agent, at the Borrowers' expense, to visit and inspect any of the properties of
the Borrowers or any of their respective Subsidiaries (subject to the rights of
any tenants), to examine the books of account of the Borrowers and their
respective Subsidiaries (and to make copies thereof and extracts therefrom) and
to discuss the affairs, finances and accounts of the Borrowers and their
respective Subsidiaries with, and to be advised as to the same by, their Senior
Officers, all at such reasonable times (during normal business hours) and
intervals as the Administrative Agent or any Bank may reasonably request upon
reasonable notice; provided, however, that inspections made at the Borrowers'
expense shall be limited to once per year, unless an Event of Default shall have
occurred and be continuing. The Banks shall use good faith efforts to coordinate
such visits and inspections so as to minimize the interference with and
disruption to the Borrowers' or such Subsidiaries' normal business operations.
5.15 More Restrictive Agreements. Promptly notify the Administrative
Agent should any Borrower or any Subsidiary of Borrowers enter into or modify
any agreements or documents pertaining to any existing or future Indebtedness,
Debt Offering or issuance of Preferred Equity, which agreements or documents
include covenants, whether affirmative or negative, which are individually or in
the aggregate more restrictive as to the matters covered by the definition of
the term Borrowing Base, Sections 5.17, 6.1, 6.3, 6.5 through 6.13, inclusive,
or 6.15 (or any other provisions which may have the same practical effect as any
of the foregoing) against any Borrower or their respective Subsidiaries than
those set forth in the definition of the term Borrowing Base, Sections 5.17,
6.1, 6.3, 6.5 through 6.13, inclusive, or 6.15 (or any other provision which may
have the same practical effect as any of the foregoing) or which provide for a
guaranty of the obligations thereunder by a Person that is not liable for the
Obligations. If requested by the Requisite Banks, the Borrowers, the
Administrative Agent, and the Requisite Banks shall promptly amend this
Agreement and the other Loan Documents to include some or all of such more
restrictive provisions or provide for a guaranty of the Obligations by such
Person as determined by the Requisite Banks in their sole discretion.
Notwithstanding the foregoing, this Section 5.15 shall not apply to covenants
contained in any agreements or documents that relate only to specific Real
Property that is collateral for any existing or future Indebtedness of any of
the Borrowers or their Subsidiaries that is permitted by the terms of this
Agreement.
5.16 Distributions of Income to the Borrowers. Cause all of their
respective Subsidiaries to promptly transfer to such Borrower (but not less
frequently than once each fiscal quarter of such Borrower), whether in the form
of dividends, distributions or otherwise, all
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profits, proceeds or other income relating to or arising from its Subsidiaries'
use, operation, financing, refinancing, sale or other disposition of their
respective assets and properties in excess of $1,000,000 in the aggregate after
(a) the payment by each Subsidiary of its Debt Service and operating expenses
for such quarter and (b) the establishment of reasonable reserves for the
payment of operating expenses not paid on at least a quarterly basis and capital
improvements to be made to such Subsidiary's assets and properties approved by
such Subsidiary in the ordinary course of business consistent with its past
practices.
5.17 Unencumbered Asset Pool.
(a) Cause all of the Revenue-Producing Properties in the
Unencumbered Asset Pool to satisfy all of the following conditions:
(i) each of the Revenue-Producing Properties shall be wholly
owned in fee simple absolute by the Operating Partnership or by a Borrower
that is a Wholly-Owned Subsidiary of the Operating Partnership (other than
as specified in the definition of Qualified Unencumbered Asset Pool
Property with respect to the Exception Properties);
(ii) the Revenue-Producing Properties in the Unencumbered
Asset Pool shall consist solely of Revenue-Producing Properties which
shall at all times have an aggregate leasing level (on a portfolio basis)
of at least eighty-five percent (85%) of the Net Rentable Area within such
Revenue-Producing Properties, based on bona fide arm's length tenant
leases which are in full force and effect requiring current rental
payments and which are in good standing and not in default and whose
tenants are not subject to any bankruptcy or other insolvency proceeding
("Currently Effective Leases"); and no individual Revenue-Producing
Property may be less than 75% leased pursuant to Currently Effective
Leases (other than the 000 Xxxxxxxxxx Xxxx Property, which may be 73%
leased pursuant to Currently Effective Leases);
(iii) no individual Revenue-Producing Property in the
Unencumbered Asset Pool may account for more than 33% of the total amount
of the Borrowing Base; and
(iv) no single tenant or group of tenants which are
Affiliates may generate more than 20% of the annual minimum rent generated
by all Revenue-Producing Properties in the Unencumbered Asset Pool.
(b) Cause all of the Development Properties in the Unencumbered
Asset Pool to satisfy all of the following conditions:
(i) each of the Development Properties shall be wholly owned
in fee simple absolute by the Operating Partnership or by another Borrower
that is a Wholly-Owned Subsidiary of the Operating Partnership;
(ii) each of the Development Properties in the Unencumbered
Asset Pool must be at least 75% pre-leased pursuant to bona fide arm's
length tenant leases which are not in default and whose tenants are not
subject to any bankruptcy or other
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insolvency proceeding and which shall require rent to commence (after a
free rent period of not to exceed six (6) months) upon the completion of
the Life Sciences Building(s) to be constructed on such Development
Property; and
(iii) The Development Properties in the Unencumbered Asset
Pool may not in aggregate account for more than 20% of the total amount of
the Borrowing Base.
(c) Provide to the Administrative Agent as of the Closing Date and
concurrently with the delivery of the financial statements described in Section
7.1(c) as part of the Compliance Certificate required pursuant to Section 7.2,
(i) a list of the Revenue-Producing Properties and the Development Properties in
the Unencumbered Asset Pool, (ii) the certification of a Senior Officer of the
Borrowers of the Asset Values of the Revenue-Producing Properties and the
amounts of Invested Cash with respect to the Development Properties (and the
status of construction thereon), and that such properties are in compliance with
Sections 5.17(a) and (b), (iii) operating statements setting forth the NOI and
Net Capital Expenditures for each of the Revenue-Producing Properties in the
Unencumbered Asset Pool for the previous four (4) fiscal quarters (or such
shorter period as the Revenue-Producing Property has been held by the Borrowers
if such statements are not available to Borrowers) certified as true and correct
by a Senior Officer of the Borrowers, and (iv) a certificate that the
Revenue-Producing Properties and the Development Properties in the Unencumbered
Asset Pool comply with the terms of Sections 4.17 and 4.19.
(d) In the event that all or any material portion of a
Revenue-Producing Property within the Unencumbered Asset Pool shall be damaged
or taken by condemnation, then such property shall no longer be a part of the
Unencumbered Asset Pool unless and until any damage to such property is repaired
or restored, such Revenue-Producing Property becomes fully operational and the
Administrative Agent shall receive evidence satisfactory to the Administrative
Agent of the value and NOI of such Revenue-Producing Property following such
repair or restoration. In the event that all or any material portion of a
Development Property within the Unencumbered Asset Pool shall be damaged or
taken by condemnation, then Administrative Agent may reduce the amount of the
Borrowing Base in an amount which Administrative Agent reasonably deems
appropriate in light of such damage or condemnation; or may remove such property
from the Unencumbered Asset Pool unless and until such property is repaired or
restored to Administrative Agent's reasonable satisfaction.
5.18 Preservation of Right to Pledge Properties in the Unencumbered Asset
Pool. Borrowers and their respective Subsidiaries shall take such actions as are
necessary to preserve the right and ability of Borrowers to pledge Properties in
the Unencumbered Asset Pool to Administrative Agent without any such pledge
after the date hereof causing or permitting the acceleration (after the giving
of notice or the passage of time, or otherwise) of any other Indebtedness of
Borrowers or any of their respective Subsidiaries. Borrowers shall, upon demand,
provide to the Administrative Agent such evidence as the Administrative Agent
may reasonably require to evidence compliance with this Section 5.18, which
evidence shall include, without limitation, copies of any agreements or
instruments which would in any way restrict or limit a Borrower's ability to
pledge assets as security for Indebtedness, or which provide for the occurrence
of a default (after the giving of notice or the passage of time, or otherwise)
if assets are pledged in the future as security for Indebtedness of such
Borrower or any of its Subsidiaries.
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ARTICLE 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any Letter of Credit remains
outstanding, or any other Obligation remains unpaid, or any portion of the
Commitments remains in force, Borrowers and their respective Subsidiaries shall
not, unless the Administrative Agent (with the written approval of the Requisite
Banks or, if required by Section 12.1, of all of the Banks) otherwise consents:
6.1 Mergers. Merge or consolidate with or into any Person, except a merger
or consolidation of one or more Borrowers with and into another Borrower or one
or more Subsidiaries with and into another Subsidiary or a Borrower; provided
that in all cases Parent and the Operating Partnership must survive.
6.2 ERISA. (a) At any time, permit any Pension Plan to: (i) engage in any
non-exempt "prohibited transaction" (as defined in Section 4975 of the Code)
which could reasonably be expected to result in a Material Adverse Effect, (ii)
fail to comply with ERISA which could reasonably be expected to result in a
Material Adverse Effect, (iii) incur any material "accumulated funding
deficiency" (as defined in Section 302 of ERISA) which could reasonably be
expected to result in a Material Adverse Effect or (iv) terminate in any manner
which could reasonably be expected to result in a Material Adverse Effect, or
(b) withdraw, completely or partially, from any Multiemployer Plan if to do so
could reasonably be expected to result in a Material Adverse Effect.
6.3 Permitted Business Activities. Engage in or pursue any business or
other activities or ventures other than Permitted Business Activities, or
otherwise make any material change in the principal nature of the business of
Borrowers.
6.4 Transactions with Affiliates. Enter into any transaction of any kind
with any Affiliate of Borrowers or their respective Subsidiaries other than (a)
salary, bonus, employee stock option, relocation assistance and other
compensation arrangements with directors or officers in the ordinary course of
business, (b) transactions that are fully disclosed to the board of directors of
Parent and expressly authorized by a resolution of the board of directors of
Parent which is approved by a majority of the directors not having an interest
in the transaction, (c) transactions expressly permitted by this Agreement, (d)
transactions between one Borrower and another Borrower or one Subsidiary and
another Subsidiary or one Subsidiary and a Borrower and (e) transactions on
overall terms at least as favorable to Borrowers or their Subsidiaries as would
be the case in an arm's-length transaction between unrelated parties of equal
bargaining power.
6.5 Leverage Ratio. Permit the Leverage Ratio, as of the last day of any
Fiscal Quarter, to be greater than .50 to 1.00; provided, however, that should
the Operating Partnership acquire a company, or a significant portfolio of Real
Properties, the maximum permitted Leverage Ratio shall be increased to .55 to
1.00, upon the written request of the Operating Partnership, for a period not to
exceed six (6) months from the date of such acquisition; provided further,
however, that during the new period of time that the Leverage Ratio is in excess
of .50 to
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1.00 the Applicable Margin shall be increased to 1.80% (notwithstanding anything
contained in the definition of "Applicable Margin" to the contrary).
6.6 Cash Flow Coverage. Permit Cash Flow Coverage, as of the last day of
any Fiscal Quarter, to be less than 2.0 to 1.00.
6.7 Fixed Charge Coverage. Permit Fixed Charge Coverage, as of the last
day of any Fiscal Quarter, to be less than 1.75 to 1.00.
6.8 Distributions. Make any Distribution (a) if such Distribution is equal
to or in excess of the amount which, when added to the amount of all other
Distributions paid in the same Fiscal Quarter and the preceding three (3) Fiscal
Quarters (exclusive of the partial quarter commencing with the Closing Date and
ending September 30, 2004), would exceed 95% of Funds From Operations plus
revenue from master leases (of the KOP Property and the Bayshore Property) of
Parent and its Subsidiaries for the four (4) consecutive Fiscal Quarters ending
prior to the Fiscal Quarter in which such Distribution is paid (provided that
Parent shall be permitted to pay the minimum Distribution required under the
Code to maintain and preserve Parent's status as a real estate investment trust
under the Code, as evidenced by a certification of a Senior Officer of Parent
containing calculations in reasonable detail satisfactory in form and substance
to the Administrative Agent, if such Distribution is greater than the amount set
forth in clause (a) above) (provided further that if an Event of Default has
occurred and is continuing, Borrowers may only make the Distributions permitted
under Section 6.8(b)), or (b) during the continuance of an Event of Default, in
excess of the minimum amount necessary to comply with Section 857(a) of the
Code. Notwithstanding the foregoing, Operating Partnership may pay amounts in
redemption of the interests of limited partners in Operating Partnership
pursuant to its obligations under its current Amended and Restated Agreement of
Limited Partnership which exceed the foregoing restriction so long as (i) such
amounts, when added to all other Distributions, do not exceed 100% of Funds
Available for Distribution plus revenue from master leases of the KOP Property
and the Bayshore Property for the prior four (4) consecutive Fiscal Quarters,
(ii) after giving effect to such payments, the Borrowers will continue to be in
compliance with this Agreement, and (iii) no Event of Default shall have
occurred and be continuing.
6.9 Net Worth. Permit Net Worth, as of the last day of any Fiscal Quarter,
to be less than the sum of (a) $250,000,000, plus (b) eighty-five percent (85%)
of the net proceeds from any Equity Offering of any Borrower made after the
Closing Date.
6.10 Unsecured Interest Expense Coverage. Permit Unsecured Interest
Expense Coverage, as of the last day of any Fiscal Quarter, to be less than 2.0
to 1.00.
6.11 Secured Debt. Permit Secured Debt of Parent and its Subsidiaries to
exceed an amount equal to 35% of Gross Asset Value as of the most recently ended
Fiscal Quarter.
6.12 Recourse Debt. Permit recourse Indebtedness (whether secured or
unsecured, but excluding this Loan) of Parent and its Subsidiaries to exceed an
amount equal to 40% of Gross Asset Value as of the most recently ended Fiscal
Quarter.
6.13 Permitted Investments. Without limiting Section 5.6:
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(a) permit the total value of undeveloped land owned by Borrowers
and their Subsidiaries to exceed 5% of Gross Asset Value (with undeveloped land
valued at cost);
(b) permit the total amount invested by Borrowers and their
Subsidiaries in land under development to exceed 10% of Gross Asset Value;
(c) permit the aggregate amount invested by Borrowers and their
Subsidiaries in assets other than Real Property to exceed 10% of Gross Asset
Value;
(d) permit the aggregate amount invested by Borrowers and their
Subsidiaries in or with respect to any joint ventures or Related Ventures (or
any other entities that are not Wholly-Owned Subsidiaries of the Operating
Partnership), excluding the partnership that owns the KOP Property and the
partnership that owns the real property located in San Diego, California
commonly known as the "XxXxxxxx Court" property, to exceed 10% of Gross Asset
Value; and
(e) permit the aggregate amount invested by Borrowers and their
Subsidiaries in the Investments listed as subparagraphs (a) through (d)
immediately above to exceed 25% of Gross Asset Value.
6.14 Liens and Negative Pledges. Grant to any Person any Lien on or
Negative Pledge with respect to any Property within the Unencumbered Asset Pool,
other than Permitted Encumbrances and Permitted Rights of Others.
6.15 Formation Documents. Permit any material change to the articles of
incorporation, bylaws, partnership agreement or any other material formation
documents of Parent or the Operating Partnership without the written consent of
the Requisite Banks.
6.16 Limiting Agreements. Enter into any agreement, instrument or
transaction which has or may have the effect of prohibiting or limiting any
Borrower's ability to pledge to Administrative Agent any Property within the
Unencumbered Asset Pool.
6.17 Unsecured Indebtedness. Have outstanding or incur any unsecured
Indebtedness (other than the Loan provided hereunder); provided that the
foregoing shall not prohibit:
(a) acquiring goods, supplies, merchandise or services on normal
trade credit; and
(b) endorsing negotiable instruments received in the ordinary course
of business.
6.18 Restrictions on Transfer. The Operating Partnership will not,
directly or indirectly, make or permit to be made, by voluntary or involuntary
means, any sale, assignment, transfer, disposition, mortgage, pledge,
hypothecation or encumbrance of its direct or indirect interest in any Borrower
(provided that the foregoing shall not prohibit transfers of the Operating
Partnership's interest in any Borrower provided such Borrower remains a
Wholly-Owned Subsidiary of the Operating Partnership), or any dilution of its
direct or indirect interest in any Borrower. The Operating Partnership shall not
in any manner transfer, assign, diminish or
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xxxxxxxxx xxxxxxxx its direct or indirect right to vote or other rights with
respect to any Borrower. Notwithstanding the foregoing, the Operating
Partnership may sell, assign, transfer or dispose of its interest in another
Borrower that is a Subsidiary of the Operating Partnership, provided that on or
before the closing of such sale the Borrower shall have delivered to the
Administrative Agent a certification, together with such other evidence as
Administrative Agent may reasonably require, that the Borrowers will be in
compliance with all covenants in this Agreement after giving effect to such
sale, assignment, transfer or other disposition, and provided further that from
and after any such sale, the assets of such Borrower shall no longer be included
within the Unencumbered Asset Pool.
ARTICLE 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any Advance remains
unpaid, or any Letter of Credit remains outstanding, or any other Obligation
remains unpaid, or any portion of the Commitments remains in force, Borrowers
shall, unless the Administrative Agent (with the written approval of the
Requisite Banks) otherwise consents, at Borrowers' sole expense, deliver to the
Administrative Agent for distribution by it to the Banks, a sufficient number
(but not more than ten) of copies for all of the Banks of the following:
(a) As soon as practicable, and in any event within forty-five (45)
days after the end of each Fiscal Quarter (other than the fourth Fiscal Quarter
in any Fiscal Year), the consolidated balance sheet of Parent and its
Subsidiaries as at the end of such Fiscal Quarter and the consolidated
statements of operations and cash flows for such Fiscal Quarter, and the portion
of the Fiscal Year ended with such Fiscal Quarter, all in reasonable detail.
Such financial statements shall be certified by a Senior Officer of Parent as
fairly presenting the financial condition, results of operations and cash flows
of Parent and its Subsidiaries in accordance with Generally Accepted Accounting
Principles (other than footnote disclosures), consistently applied, as at such
date and for such periods, subject only to normal year-end accruals and audit
adjustments;
(b) As soon as practicable, and in any event within forty-five (45)
days after the end of each Fiscal Quarter, a certificate setting forth a
calculation of the Leverage Ratio as of the last day of such Fiscal Quarter, and
providing reasonable detail as to the calculation thereof;
(c) As soon as practicable, and in any event within forty-five (45)
days after the end of each Fiscal Quarter, statements of operating income for
such Fiscal Quarter and Fiscal Year to date for each of the Revenue-Producing
Properties in the Unencumbered Asset Pool and a summary Rent Roll for each of
the Revenue-Producing Properties in the Unencumbered Asset Pool, each in
reasonable detail;
(d) All written information provided to shareholders of Parent;
(e) As soon as practicable, and in any event within one hundred
(100) days after the end of each Fiscal Year, the consolidated balance sheet of
Parent and its Subsidiaries as at the end of such Fiscal Year and the
consolidated statements of operations, stockholders' equity
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and cash flows, in each case of Parent and its Subsidiaries for such Fiscal
Year, all in reasonable detail. Such financial statements shall be prepared in
accordance with Generally Accepted Accounting Principles, consistently applied,
and shall be accompanied by a report of KPMG or other independent public
accountants of recognized standing selected by Parent and reasonably
satisfactory to the Requisite Banks, which report shall be prepared in
accordance with generally accepted auditing standards as at such date, and shall
not be subject to any qualifications or exceptions as to the scope of the audit
nor to any other qualification or exception determined by the Requisite Banks in
their good faith business judgment to be adverse to the interests of the Banks;
(f) Upon request by Administrative Agent, as soon as practicable,
and in any event before the commencement of each Fiscal Year, a budget and
projection by Fiscal Quarter for that Fiscal Year and by Fiscal Year for the
next two succeeding Fiscal Years, including for the first such Fiscal Year,
projected consolidated balance sheets, statements of operations and statements
of cash flow and, for the second and third such Fiscal Years, projected
consolidated condensed balance sheets and statements of operations and cash
flows, of Parent and its Subsidiaries, all in reasonable detail;
(g) Promptly after request by the Administrative Agent or any Bank,
copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of
directors) of Parent by independent accountants in connection with the accounts
or books of Parent or any of its Subsidiaries, or any audit of any of them;
(h) Promptly after the same are available, and in any event within
ten (10) days after filing with the Securities and Exchange Commission, copies
of each annual report, proxy or financial statement or other report or
communication sent to the stockholders of Parent, and copies of all annual,
regular, periodic and special reports and registration statements which Parent
may file or be required to file with the Securities and Exchange Commission
under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended,
and not otherwise required to be delivered to the Banks pursuant to other
provisions of this Section 7.1;
(i) Promptly after request by the Administrative Agent or any Bank,
copies of any other material report or other document that was filed by
Borrowers with any Governmental Agency;
(j) Promptly upon a Senior Officer becoming aware, and in any event
within five (5) Banking Days after becoming aware, of the occurrence of any (i)
"reportable event" (as such term is defined in Section 4043 of ERISA, but
excluding such events as to which the PBGC has by regulation waived the
requirement therein contained that it be notified within thirty days of the
occurrence of such event) or (ii) non-exempt "prohibited transaction" (as such
term is defined in Section 406 of ERISA or Section 4975 of the Code) involving
any Pension Plan or any trust created thereunder, telephonic notice specifying
the nature thereof, and, no more than two (2) Banking Days after such telephonic
notice, written notice again specifying the nature thereof and specifying what
action Borrowers are taking or propose to take with respect thereto, and, when
known, any action taken by the Internal Revenue Service with respect thereto;
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(k) As soon as practicable, and in any event within five (5) Banking
Days after a Senior Officer becomes aware of the existence of any condition or
event which constitutes a Default or Event of Default, telephonic notice
specifying the nature and period of existence thereof, and, no more than five
(5) Banking Days after such telephonic notice, written notice again specifying
the nature and period of existence thereof and specifying what action Borrowers
are taking or propose to take with respect thereto;
(l) Promptly upon a Senior Officer becoming aware that (i) any
Person has commenced a legal proceeding with respect to a claim against
Borrowers that is $1,000,000 or more in excess of the amount thereof that is
fully covered by insurance, (ii) any creditor under a credit agreement involving
Indebtedness of $1,000,000 or more or any lessor under a lease involving
aggregate rent of $1,000,000 or more has asserted a default thereunder on the
part of Borrowers or, (iii) any Person has commenced a legal proceeding with
respect to a claim against Borrowers under a contract (that is not a credit
agreement or material lease) in excess of $1,000,000 or which otherwise may
reasonably be expected to result in a Material Adverse Effect, a written notice
describing the pertinent facts relating thereto and what action Borrowers are
taking or propose to take with respect thereto;
(m) [Intentionally Omitted.]
(n) Not later than forty- five (45) days after the end of each
fiscal quarter of the Borrowers (including the fourth fiscal quarter in each
year), a list (which may be included in the Compliance Certificates) setting
forth the following information with respect to each new Subsidiary or
Controlled Entity of any of the Borrowers: (i) the name, structure and ownership
of the Subsidiary or Controlled Entity, (ii) a description of the property owned
by such Subsidiary or Controlled Entity, and (iii) such other information as the
Administrative Agent may reasonably request;
(o) Simultaneously with the delivery of the financial statements
referred to in Section 7.1(e) above (if such information is not otherwise
included in the financial statements or other information presented to the Banks
pursuant to this Section 7.1), a statement (which may be included in the
Compliance Certificates) listing (i) the Real Property owned by Parent and its
Subsidiaries (or in which Parent or its Subsidiaries owns an interest) and
stating the location thereof, the date acquired and the acquisition cost, (ii)
the Indebtedness of Parent and its Subsidiaries, which statement shall include,
without limitation, a statement of the original principal amount of such
Indebtedness and the current amount outstanding, the holder thereof, the
maturity date and any extension options, the interest rate, the collateral
provided for such Indebtedness and whether such Indebtedness is recourse or
non-recourse, and (iii) the properties of Parent and its respective Subsidiaries
which are Development Properties and providing a brief summary of the status of
such development;
(p) When and as required by Section 2.11, the information regarding
each Qualified Unencumbered Asset Pool Property, as more particularly described
in Section 2.11;
(q) When and as required by Section 5.17(c), the information
regarding the Unencumbered Asset Pool, as more particularly described in Section
5.17(c); and
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(r) Such other data and information as from time to time may be
reasonably requested by the Administrative Agent, any Bank (through the
Administrative Agent) or the Requisite Banks.
7.2 Compliance Certificates. So long as any Advance remains unpaid, or any
Letter of Credit remains outstanding, or any other Obligation remains unpaid or
unperformed, or any portion of the Commitments remains outstanding, Borrowers
shall, at Borrowers' sole expense, deliver to the Administrative Agent for
distribution by it to the Banks concurrently with the financial statements
required pursuant to Sections 7.1(a), 7.1(c) and 7.1(e), Compliance Certificates
signed by a Senior Officer.
7.3 Borrowing Base Calculations. So long as any Advance remains unpaid, or
any Letter of Credit remains outstanding, or any other Obligation remains unpaid
or unperformed, or any portion of the Commitments remains outstanding, Borrowers
shall, at Borrowers' sole expense, deliver to Administrative Agent for
distribution by it to the Banks, within 15 days following the addition of each
Qualified Unencumbered Asset Pool Property to the Unencumbered Asset Pool
pursuant to Section 2.11, and within 15 days of the end of each Fiscal Quarter,
Borrowers' calculation of the then effective amount of the Borrowing Base, in
form and detail reasonably satisfactory to Administrative Agent (provided,
however, that Administrative Agent may review, challenge, and adjust any such
calculations of the applicable Borrowing Base as it reasonably deems appropriate
should Administrative Agent in good faith believe that such calculations are not
accurate or are not in conformance with the terms of this Agreement).
ARTICLE 8
CONDITIONS
8.1 Initial Advances. The obligation of each Bank to make the initial
Advance to be made by it or of the Administrative Agent to issue the initial
Letters of Credit is subject to the following conditions precedent, each of
which shall be satisfied prior to the making of the initial Advances (unless all
of the Banks, in their sole and absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified, each
properly executed by a Responsible Official of each party thereto, each dated as
of the Closing Date and each in form and substance satisfactory to the
Administrative Agent and its legal counsel (unless otherwise specified or, in
the case of the date of any of the following, unless the Administrative Agent
otherwise agrees or directs):
(i) at least one (1) executed counterpart of this Agreement,
together with arrangements satisfactory to the Administrative Agent for
additional executed counterparts, sufficient in number for distribution to
the Banks and Borrowers;
(ii) Line Notes executed by Borrowers in favor of each Bank,
each in a principal amount equal to that Bank's Pro Rata Share of the Line
Commitment;
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(iii) Swing Loan Note executed by Borrowers in favor of the
Swing Loan Bank in the principal amount of the Swing Loan Commitment;
(iv) with respect to each of Borrowers, such documentation as
the Administrative Agent may reasonably require to establish the due
organization, valid existence and good standing of each of Borrowers, its
qualification to engage in business in each material jurisdiction in which
it is engaged in business or required to be so qualified, its authority to
execute, deliver and perform the Loan Documents to which it is a Party,
the identity, authority and capacity of each Responsible Official thereof
authorized to act on its behalf, including certified copies of articles of
incorporation and amendments thereto, bylaws and amendments thereto,
certificates of good standing and/or qualification to engage in business,
tax clearance certificates, certificates of corporate resolutions,
incumbency certificates, Certificates of Responsible Officials, and the
like;
(v) the Opinions of Counsel; and
(vi) such other assurances, certificates, documents, consents
or opinions as the Administrative Agent or the Requisite Banks reasonably
may require.
(b) All of the fees then required to have been paid under the
Agreement Regarding Fees shall have been paid.
(c) The Administrative Agent shall have received evidence reasonably
satisfactory to it that prior to or substantially concurrently with the Closing
Date, Parent shall have received net cash equity proceeds from its initial
public offering in an amount of at least Three Hundred Million Dollars
($300,000,000).
(d) The reasonable costs and expenses of the Administrative Agent in
connection with the preparation of the Loan Documents payable pursuant to
Section 11.3, and invoiced to Borrowers on or prior to the Closing Date, shall
have been paid.
(e) The representations and warranties of Borrowers contained in
Article 4 shall be true and correct in all material respects.
(f) Borrowers and any other Parties shall be in compliance with all
the terms and provisions of the Loan Documents, and giving effect to the initial
Advance no Default or Event of Default shall have occurred and be continuing.
(g) All legal matters relating to the Loan Documents shall be
satisfactory to counsel for U.S. Bank.
(h) The Administrative Agent shall have received a Compliance
Certificate (including existing Borrowing Base calculations) dated as of the
date of the Closing Date demonstrating compliance with each of the then
applicable covenants calculated therein, adjusted in the best good faith
estimate of the Borrowers dated as of the date of the Closing Date.
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(i) The Administrative Agent shall have reviewed such other
documents, instruments, certificates, opinions, assurances, consents and
approvals as the Administrative Agent or the Administrative Agent's special
counsel may reasonably have requested.
8.2 Any Advance. The obligation of each Bank to make any Advance or of the
Swing Loan Bank to make a Swing Loan or of the Administrative Agent to issue a
Letter of Credit is subject to the following conditions precedent (unless the
Requisite Banks, in their sole and absolute discretion, shall agree otherwise):
(a) except (i) for representations and warranties which expressly
speak as of a particular date or are no longer true and correct as a result of a
change which is permitted by this Agreement or (ii) as disclosed by Borrowers
and approved in writing by the Requisite Banks, the representations and
warranties contained in Article 4 shall be true and correct in all material
respects on and as of the date of the Advance as though made on that date;
(b) other than matters described in Schedule 4.10 or not required as
of the Closing Date to be therein described, there shall not be then pending or
threatened any action, suit, proceeding or investigation against or affecting
Parent or any of its Subsidiaries or any Property of any of them before any
Governmental Agency that constitutes a Material Adverse Effect;
(c) the Administrative Agent shall have timely received a Request
for Loan or Letter of Credit Request in compliance with Article 2 (or telephonic
or other request for Loan referred to in the second sentence of Section 2.1(c),
if applicable), in compliance with Article 2;
(d) no Default or Event of Default shall have occurred and be
continuing;
(e) If requested by Administrative Agent, the Administrative Agent
shall have received a current calculation of the Borrowing Base with such
supporting information as the Administrative Agent may require adjusted in the
best good faith estimate of the Borrowers to the date of such certification; and
(f) the Administrative Agent shall have received, in form and
substance satisfactory to the Administrative Agent, such other assurances,
certificates, documents or consents related to the foregoing as the
Administrative Agent or Requisite Banks reasonably may require.
ARTICLE 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 Events of Default. The existence or occurrence of any one or more of
the following events, whatever the reason therefor and under any circumstances
whatsoever, shall constitute an "Event of Default":
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(a) Borrowers fail to pay any principal on any of the Notes, or any
portion thereof, on the date when due (other than amounts due under Section
3.1(e)(ii) which failure is subject to Section 9.1(b) below); or
(b) Borrowers fail to pay any amounts due under Section 3.1(e)(ii),
any interest on any of the Notes, or any fees under the Agreement Regarding Fees
or any portion thereof, within five (5) Banking Days after the date when due; or
fail to pay any other fee or amount payable to the Banks or the Administrative
Agent under any Loan Document, or any portion thereof, within ten (10) Banking
Days after demand therefor; or
(c) Borrowers or any of their respective Subsidiaries fail to comply
with any of the covenants contained in Article 6; or
(d) Borrowers shall fail to comply with Section 7.1(k) in any way
that is materially adverse to the interests of the Banks; or
(e) Any Borrower or any of their respective Subsidiaries or any
other Party fails to perform or observe any other covenant or agreement (not
specified in clause (a), (b) or (c) above, or otherwise set forth below in this
Section 9.1) contained in any Loan Document on its part to be performed or
observed within thirty (30) days after the giving of notice by the
Administrative Agent on behalf of the Requisite Banks of such Default or, if
such Default is not reasonably susceptible of cure within such period, within
such longer period as is reasonably necessary to effect a cure so long as such
Borrower, such Subsidiary or such Party continues to diligently pursue cure of
such Default but not in any event in excess of ninety (90) days; and provided
further, however, that notwithstanding the 30-day cure period or extended cure
period described above in this subparagraph (e), if a different notice or cure
period is specified under any Loan Document or under any provision of the Loan
Documents as to any such failure or breach, the specific Loan Document or
provision shall control, and such Borrower, Subsidiary or Party shall have no
more time to cure the failure or breach than is allowed under the specific Loan
Document or provision as to such failure or breach; or
(f) Any representation or warranty of Borrowers or any of their
respective Subsidiaries made in any Loan Document, or in any certificate or
other writing delivered by Borrowers or any of their respective Subsidiaries
pursuant to any Loan Document, proves to have been incorrect when made or
reaffirmed in any respect that is materially adverse to the interests of the
Banks; or
(g) Any Borrower or any of their respective Subsidiaries (i) fails
to pay the principal, or any principal installment, of (A) any present or future
Indebtedness individually or in the aggregate (other than Non-Recourse Debt) of
$1,000,000 or more or (B) any Non-Recourse Debt individually or in the aggregate
of $5,000,000 or more on its part to be paid, in each case when due (or within
any stated grace period), whether at the stated maturity, upon acceleration, by
reason of required prepayment or otherwise or (ii) fails to perform or observe
any other term, covenant or agreement on its part to be performed or observed,
or suffers any event of default to occur, in connection with any present or
future Indebtedness individually or in the aggregate (other than Non-Recourse
Debt) of $1,000,000 or more, if as a result of such failure or sufferance any
holder or holders thereof (or an agent or trustee on its or their behalf) has
the right to declare such Indebtedness due before the date on which it otherwise
would
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become due or the right to require Borrowers or any such Subsidiary to redeem or
purchase, or offer to redeem or purchase, all or any portion of such
Indebtedness (provided, that for the purpose of this clause (g), the principal
amount of Indebtedness consisting of a Swap Agreement shall be the amount which
is then payable by the counterparty to close out the Swap Agreement); or
(h) Any Loan Document, at any time after its execution and delivery
and for any reason other than the agreement or action (or omission to act) of
the Administrative Agent or the Banks or satisfaction in full of all the
Obligations ceases to be in full force and effect or is declared by a court of
competent jurisdiction to be null and void, invalid or unenforceable in any
respect which is materially adverse to the interests of the Banks; or any Party
thereto denies in writing that it has any or further liability or obligation
under any Loan Document, or purports to revoke, terminate or rescind same; or
(i) A final judgment against any of Borrowers or any of their
respective Subsidiaries is entered for the payment of money in excess of
$1,000,000 (not covered by insurance or for which an insurer has reserved its
rights) and, absent procurement of a stay of execution, such judgment remains
unsatisfied for thirty (30) calendar days after the date of entry of judgment,
or in any event later than ten (10) days prior to the date of any proposed sale
thereunder; or any writ or warrant of attachment or execution or similar process
is issued or levied against all or any material part of the Property of any such
Person and is not released, vacated or fully bonded within thirty (30) calendar
days after its issue or levy; or
(j) Any of Borrowers or any of their respective Subsidiaries
institutes or consents to the institution of any proceeding under a Debtor
Relief Law relating to it or to all or any material part of its Property, or is
unable or admits in writing its inability to pay its debts as they mature, or
makes an assignment for the benefit of creditors; or applies for or consents to
the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
Property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent
of that Person and the appointment continues undischarged or unstayed for sixty
(60) calendar days; or any proceeding under a Debtor Relief Law relating to any
such Person or to all or any part of its Property is instituted without the
consent of that Person and continues undismissed or unstayed for sixty (60)
calendar days or such Person consents thereto or acquiesces therein, or a decree
or order for relief is entered in respect of any such Person in such proceeding;
or
(k) The occurrence of an Event of Default (as such term is or may
hereafter be specifically defined in any other Loan Document) under any other
Loan Document; or
(l) Any Pension Plan maintained by Borrowers or any of their
respective Subsidiaries is determined to have a material "accumulated funding
deficiency" as that term is defined in Section 302 of ERISA and the result is a
Material Adverse Effect; or
(m) Xxxx Xxxx shall at any time cease to be the Chief Executive
Officer of Parent; provided that the foregoing shall not constitute an Event of
Default if a competent and experienced successor for such Person shall be
approved by the Requisite Banks within three (3) months of such event, such
approval not to be unreasonably withheld.
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9.2 Remedies Upon Event of Default. Without limiting any other rights or
remedies of the Administrative Agent or the Banks provided for elsewhere in this
Agreement, or the other Loan Documents, or by applicable Law, or in equity, or
otherwise:
(a) Upon the occurrence, and during the continuance, of any Event of
Default other than an Event of Default described in Section 9.1(j):
(i) the commitments to make Advances and Swing Loans and to
issue Letters of Credit and all other obligations of the Administrative
Agent or the Banks and all rights of Borrowers and any other Parties under
the Loan Documents shall be suspended without notice to or demand upon
Borrowers, which are expressly waived by Borrowers, except that all of the
Banks or the Requisite Banks (as the case may be, in accordance with
Section 12.1) may waive an Event of Default or, without waiving,
determine, upon terms and conditions satisfactory to the Banks or
Requisite Banks, as the case may be, to reinstate the Commitments and such
other obligations and rights and make further Advances and Swing Loans and
to issue Letters of Credit, which waiver or determination shall apply
equally to, and shall be binding upon, all the Banks; and
(ii) the Requisite Banks may request the Administrative Agent
to, and the Administrative Agent thereupon shall, terminate the
Commitments and/or declare all or any part of the unpaid principal of all
Notes, all interest accrued and unpaid thereon and all other amounts
payable under the Loan Documents to be forthwith due and payable,
whereupon the same shall become and be forthwith due and payable, without
protest, presentment, notice of dishonor, demand or further notice of any
kind, all of which are expressly waived by Borrowers.
(b) Upon the occurrence and during the continuance of any Event of
Default described in Section 9.1(j):
(i) the commitments to make Advances and Swing Loans and to
issue Letters of Credit and all other obligations of the Administrative
Agent or the Banks and all rights of Borrowers and any other Parties under
the Loan Documents shall terminate without notice to or demand upon
Borrowers, which are expressly waived by Borrowers, except that all of the
Banks or the Requisite Banks (as the case may be, in accordance with
Section 12.1) may waive the Event of Default or, without waiving,
determine, upon terms and conditions satisfactory to all the Banks, to
reinstate the Commitments and such other obligations and rights and make
further Advances and Swing Loans and to issue Letters of Credit, which
determination shall apply equally to, and shall be binding upon, all the
Banks; and
(ii) the unpaid principal of all Notes, all interest accrued
and unpaid thereon and all other amounts payable under the Loan Documents
shall be forthwith due and payable, all without protest, presentment,
notice of dishonor, demand or further notice of any kind, all of which are
expressly waived by Borrowers.
(c) Upon the occurrence and during the continuance of any Event of
Default, the Administrative Agent, on behalf of the Banks, without notice to
(except as expressly
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provided for in any Loan Document) or demand upon Borrowers, which are expressly
waived by Borrowers (except as to notices expressly provided for in any Loan
Document), may proceed (but only with the consent of the Requisite Banks) to
protect, exercise and enforce their rights and remedies under the Loan Documents
against Borrowers and any other Party and such other rights and remedies as are
provided by Law or equity.
(d) The order and manner in which the Banks' rights and remedies are
to be exercised shall be determined by the Requisite Banks in their sole
discretion, and all payments received by the Administrative Agent and the Banks,
or any of them, shall be applied first to the costs and expenses (including
reasonable attorneys' fees and disbursements and the reasonably allocated costs
of attorneys employed by the Administrative Agent or by any Bank) of the
Administrative Agent and of the Banks, then to the repayment of Swing Loans, and
thereafter paid pro rata to the Banks in the same proportions that the aggregate
Obligations owed to each Bank under the Loan Documents bear to the aggregate
Obligations owed under the Loan Documents to all the Banks, without priority or
preference among the Banks. Regardless of how each Bank may treat payments for
the purpose of its own accounting, for the purpose of computing Borrowers'
Obligations hereunder and under the Notes, payments shall be applied first, to
the costs and expenses of the Administrative Agent and the Banks, as set forth
above, second, to the payment of interest and principal (in that order) due on
Swing Loans, third, to the payment of accrued and unpaid interest due under any
Loan Documents to and including the date of such application (ratably, and
without duplication, according to the accrued and unpaid interest due under each
of the Loan Documents), and fourth, pari passu to the payment of all other
amounts (including principal and fees) then owing to the Administrative Agent or
the Banks under the Loan Documents and to the payment of any termination
payments due from the Borrowers in respect of Swap Agreements. No application of
payments under this clauses (d) will cure any Event of Default, or prevent
acceleration, or continued acceleration, of amounts payable under the Loan
Documents, or prevent the exercise, or continued exercise, of rights or remedies
of the Banks hereunder or thereunder or at Law or in equity.
(e) Upon the occurrence, and during the continuance, of any Event of
Default, the Borrowers shall at such time deposit in a cash collateral account
opened by the Administrative Agent an amount equal to the Letter of Credit
Exposure at such time. Each Borrower hereby grants to the Administrative Agent,
for the benefit of the Banks, a security interest in such cash collateral to
secure all obligations of such Borrower in respect of such Letters of Credit
under this Agreement and the other Loan Documents. The Borrowers shall execute
and deliver to the Administrative Agent, for the account of the Banks, such
further documents and instruments as the Administrative Agent may request to
evidence the creation and perfection of such security interest in such cash
collateral account. Amounts held in such cash collateral account shall be
applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the Borrowers hereunder and under any Notes. After
all such Letters of Credit shall have expired or been fully drawn upon, all
obligations under the Letters of Credit shall have been satisfied and all other
obligations of the Borrowers hereunder and under any Notes shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to Borrowers.
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ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. Subject to Section 10.8, each Bank
hereby irrevocably appoints and authorizes the Administrative Agent to take such
action as the contractual representative on its behalf and to exercise such
powers under the Loan Documents as are delegated to the Administrative Agent by
the terms thereof or are reasonably incidental, as determined by the
Administrative Agent, thereto. This appointment and authorization is intended
solely for the purpose of facilitating the servicing of the Loans and does not
constitute appointment of the Administrative Agent as trustee for any Bank or as
representative of any Bank for any other purpose and, the Administrative Agent
shall take such action and exercise such powers only in an administrative and
ministerial capacity.
10.2 Administrative Agent and Affiliates. U.S. Bank (and each successor
Administrative Agent in its individual capacity) has the same rights and powers
under the Loan Documents as any other Bank and may exercise the same as though
it were not the Administrative Agent, and the term "Bank" or "Banks" includes
U.S. Bank in its individual capacity. U.S. Bank (and each successor
Administrative Agent in its individual capacity) and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with Borrowers, any Subsidiary thereof, or any Affiliate of
Borrowers or any Subsidiary thereof, as if it were not the Administrative Agent
and without any duty to account therefor to the Banks. U.S. Bank (and each
successor Administrative Agent in its individual capacity) need not account to
any other Bank for any monies received by it for reimbursement of its costs and
expenses as Administrative Agent hereunder, or for any monies received by it in
its capacity as a Bank hereunder, other than as required of any Bank hereunder.
The Administrative Agent shall not be deemed to hold a fiduciary or agency
relationship with any Bank and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent. The provisions of
this Section 10.2 shall apply equally to any other agents named herein.
10.3 Proportionate Interest in any Collateral. The Administrative Agent,
on behalf of all the Banks, shall hold in accordance with the Loan Documents all
items of collateral (if any) or interests therein received or held by the
Administrative Agent. Subject to the Administrative Agent's and the Banks'
rights to reimbursement for their costs and expenses hereunder (including
reasonable attorneys' fees and disbursements and other professional services and
the reasonably allocated costs of attorneys employed by the Administrative Agent
or, upon the occurrence and during the continuation of an Event of Default, a
Bank) and subject to the application of payments in accordance with Section
9.2(d), each Bank shall have an interest in the Administrative Agent's interest
in such collateral (if any) or interests therein in the same proportions that
the aggregate Obligations owed such Bank under the Loan Documents bear to the
aggregate Obligations owed under the Loan Documents to all the Banks, without
priority or preference among the Banks.
10.4 Banks' Credit Decisions. Each Bank agrees that it has, independently
and without reliance upon the Administrative Agent, any other Bank or the
directors, officers, agents, employees or attorneys of the Administrative Agent
or of any other Bank, and instead in reliance
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upon information supplied to it by or on behalf of Borrowers and upon such other
information as it has deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each Bank also agrees that
it shall, independently and without reliance upon the Administrative Agent, any
other Bank or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Bank, continue to make its own independent
credit analyses and decisions in acting or not acting under the Loan Documents.
10.5 Action by Administrative Agent.
(a) Absent actual knowledge of the Administrative Agent of the
existence of a Default, the Administrative Agent may assume that no Default
(other than the failure to make a payment of principal or interest when due) has
occurred and is continuing, unless the Administrative Agent has received notice
from Borrowers stating the nature of the Default or has received notice from a
Bank stating the nature of the Default and that such Bank considers the Default
to have occurred and to be continuing.
(b) The Administrative Agent has only those obligations under the
Loan Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the Loan
Documents and as long as the Administrative Agent may assume that no Default has
occurred and is continuing, the Administrative Agent may, but shall not be
required to, exercise its discretion to act or not act, except that the
Administrative Agent shall be required to comply with the instructions of the
Requisite Banks (or of all the Banks, to the extent required by Section 12.1)
and those instructions shall be binding upon the Administrative Agent and all
the Banks, provided that the Administrative Agent shall not be required to
comply with such instructions if to do so would be contrary to any Loan Document
or to applicable Law or would result, in the reasonable judgment of the
Administrative Agent, in substantial risk of liability to the Administrative
Agent.
(d) If the Administrative Agent has received a notice specified in
clause (a) or has actual knowledge of the existence of a Default, the
Administrative Agent shall promptly give notice thereof to the Banks and shall
comply with the instructions of the Requisite Banks (or of all the Banks, to the
extent required by Section 12.1), provided that the Administrative Agent shall
not be required to comply with such instructions if to do so would be contrary
to any Loan Document or to applicable Law or would result, in the reasonable
judgment of the Administrative Agent, in substantial risk of liability to the
Administrative Agent, and except that if the Requisite Banks (or all the Banks,
if required under Section 12.1) fail, for five (5) Banking Days after the
receipt of notice from the Administrative Agent, to instruct the Administrative
Agent, then the Administrative Agent, in its sole discretion, may act or not act
as it deems advisable for the protection of the interests of the Banks.
10.6 Liability of Administrative Agent. Neither the Administrative Agent
nor any of its directors, officers, agents, employees or attorneys shall be
liable for any action taken or not taken by them under or in connection with the
Loan Documents, except for their own gross negligence or willful misconduct.
Without limitation on the foregoing, the Administrative Agent and its directors,
officers, agents, employees and attorneys:
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(a) May treat the payee of any Note as the holder thereof until the
Administrative Agent receives notice of the assignment or transfer thereof, in
form satisfactory to the Administrative Agent, signed by the payee, and may
treat each Bank as the owner of that Bank's interest in the Obligations for all
purposes of this Agreement until the Administrative Agent receives notice of the
assignment or transfer thereof, in form satisfactory to the Administrative
Agent, signed by that Bank;
(b) May consult with legal counsel (including in-house legal
counsel), accountants (including in- house accountants) and other professionals
or experts selected by it, or with legal counsel, accountants or other
professionals or experts for Borrowers and/or their Subsidiaries or the Banks,
and shall not be liable for any action taken or not taken by it in good faith in
accordance with any advice of such legal counsel, accountants or other
professionals or experts;
(c) Shall not be responsible to any Bank for any statement, warranty
or representation made in any of the Loan Documents or in any notice,
certificate, report, request or other statement (written or oral) given or made
in connection with any of the Loan Documents;
(d) Shall have no duty to ask or inquire as to the performance or
observance by Borrowers or their Subsidiaries of any of the terms, conditions
(except to ascertain that documents facially responsive to the requirements of
Article 8 have been delivered) or covenants of any of the Loan Documents or to
inspect any collateral or any Property, books or records of Borrowers or their
Subsidiaries;
(e) Will not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, effectiveness, sufficiency or
value of any Loan Document, any other instrument or writing furnished pursuant
thereto or in connection therewith, or any collateral;
(f) Will not incur any liability by acting or not acting in reliance
upon any Loan Document, notice, consent, certificate, statement, request or
other instrument or writing believed in good faith by it to be genuine and
signed or sent by the proper party or parties;
(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by the Borrowers or any Subsidiary or
Affiliate thereof or paid or payable to or received or receivable from any Bank
under any Loan Document, including, without limitation, principal, interest,
commitment fees, Advances and other amounts; provided that, promptly upon
discovery of such an error in computation, the Administrative Agent, the Banks
and (to the extent applicable) Borrowers and/or their Subsidiaries or Affiliates
shall make such adjustments as are necessary to correct such error and to
restore the parties to the position that they would have occupied had the error
not occurred; and
(h) Have not made nor do they now make any representations or
warranties, express or implied, nor do they assume any liability to the Banks,
with respect to the creditworthiness or financial condition of the Borrowers,
their respective partners or members or any of their respective Subsidiaries,
the value of their respective assets or the collectability of the Loans.
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10.7 Indemnification. Each Bank shall, ratably in accordance with its Pro
Rata Share of the aggregate Commitments (if the Commitments are then in effect)
or in accordance with its proportion of the aggregate Indebtedness then
evidenced by the Notes and Letter of Credit Exposure (if the Commitments have
then been terminated), indemnify and hold the Administrative Agent and its
directors, officers, agents, employees and attorneys harmless against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
(including reasonable attorneys' fees and disbursements and allocated costs of
attorneys employed by the Administrative Agent) that may be imposed on, incurred
by or asserted against it or them in any way relating to or arising out of the
Loan Documents (other than losses incurred by reason of the failure of Borrowers
to pay the Indebtedness represented by the Notes) or any action taken or not
taken by it as Administrative Agent thereunder, except such as result from its
own gross negligence or willful misconduct. Without limitation on the foregoing,
each Bank shall reimburse the Administrative Agent upon demand for that Bank's
Pro Rata Share of any out-of-pocket cost or expense incurred by the
Administrative Agent in connection with the negotiation, preparation, execution,
delivery, amendment, waiver, restructuring, reorganization (including a
bankruptcy reorganization), enforcement or attempted enforcement of the Loan
Documents, to the extent that any Borrower or any other Party is required by
Section 11.3 to pay that cost or expense but fails to do so upon demand. Nothing
in this Section 10.7 shall entitle the Administrative Agent or any indemnitee
referred to above to recover any amount from the Banks if and to the extent that
such amount has theretofore been recovered from Borrowers or any of their
Subsidiaries. To the extent that the Administrative Agent or any indemnitee
referred to above is later reimbursed such amount by Borrowers or any of their
Subsidiaries, it shall return the amounts paid to it by the Banks in respect of
such amount.
10.8 Successor Administrative Agent. The Administrative Agent may resign
as Administrative Agent upon reasonable notice to the Banks and Borrowers
effective upon acceptance of appointment by a successor Administrative Agent.
The Requisite Banks may (with the prior consent, not to be unreasonably withheld
or delayed, of Parent, unless an Event of Default shall have occurred and be
continuing) remove the Administrative Agent from its capacity as Administrative
Agent in the event of the Administrative Agent's willful misconduct or gross
negligence. If the Administrative Agent shall resign or be removed as
Administrative Agent under this Agreement, the Requisite Banks shall appoint
from among the Banks a successor Administrative Agent for the Banks, which
successor Administrative Agent shall require approval by Parent so long as no
Default or Event of Default has occurred and is continuing (and such approval
shall not be unreasonably withheld or delayed). If no successor Administrative
Agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Banks and, so long as no Default or Event of Default has occurred and
is continuing, with the consent of Parent, a successor Administrative Agent from
among the Banks. Upon the acceptance of its appointment as successor
Administrative Agent hereunder, such successor Administrative Agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent" shall mean such successor
Administrative Agent and the retiring Administrative Agent's appointment, powers
and duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Article 10, and Sections 11.3, 11.11 and 11.22, shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was
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Administrative Agent under this Agreement. Notwithstanding the foregoing, if (a)
the Administrative Agent has not been paid its agency fees under Section 3.5 or
has not been reimbursed for any expense reimbursable to it under Section 11.3,
in either case for a period of at least one (1) year and (b) no successor
Administrative Agent has accepted appointment as Administrative Agent by the
date which is thirty (30) days following a retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Banks shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Requisite Banks appoint a successor Administrative Agent as provided for above.
Unless an Event of Default shall have occurred and be continuing, the
Administrative Agent (including any successor Administrative Agent) shall at all
times maintain a Commitment of not less than the lesser of (a) $20,000,000, or
(b) the Commitment of the Bank holding the next largest Commitment.
10.9 No Obligations of Borrowers. Nothing contained in this Article 10
shall be deemed to impose upon Borrowers any obligation in respect of the due
and punctual performance by the Administrative Agent of its obligations to the
Banks under any provision of this Agreement, and Borrowers shall have no
liability to the Administrative Agent or any of the Banks in respect of any
failure by the Administrative Agent or any Bank to perform any of its
obligations to the Administrative Agent or the Banks under this Agreement.
Without limiting the generality of the foregoing, where any provision of this
Agreement relating to the payment of any amounts due and owing under the Loan
Documents provides that such payments shall be made by Borrowers to the
Administrative Agent for the account of the Banks, Borrowers' obligations to the
Banks in respect of such payments shall be deemed to be satisfied upon the
making of such payments to the Administrative Agent in the manner provided by
this Agreement.
10.10 Agents. None of the Lead Arranger, the Syndication Agent or the
Documentation Agent as shown on the cover of this Agreement have any additional
rights or obligations under the Loan Documents, except for those rights or
obligations, if any, as a Bank.
ARTICLE 11
MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver. The rights, powers, privileges and
remedies of the Administrative Agent and the Banks provided herein or in any
Note or other Loan Document are cumulative and not exclusive of any right,
power, privilege or remedy provided by Law or equity. No failure or delay on
the part of the Administrative Agent or any Bank in exercising any right, power,
privilege or remedy may be, or may be deemed to be, a waiver thereof; nor may
any single or partial exercise of any right, power, privilege or remedy preclude
any other or further exercise of the same or any other right, power, privilege
or remedy. The terms and conditions of Article 8 hereof are inserted for the
sole benefit of the Administrative Agent and the Banks; the same may be waived
in whole or in part, with or without terms or conditions, in respect of any Loan
without prejudicing the Administrative Agent's or the Banks' rights to assert
them in whole or in part in respect of any other Loan.
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11.2 [Intentionally Omitted.]
11.3 Costs, Expenses and Taxes. Borrowers shall pay within five (5)
Banking Days after demand, accompanied by an invoice therefor, the reasonable
costs and expenses of the Administrative Agent in connection with the
negotiation, preparation, syndication, execution, delivery, administration and
interpretation of the Loan Documents and any amendment thereto or waiver
thereof. Following and during the continuation of an Event of Default, Borrowers
shall also pay on demand, accompanied by an invoice therefor, the reasonable
costs and expenses of the Administrative Agent and the Banks in connection with
the refinancing, restructuring, reorganization (including a bankruptcy
reorganization) and enforcement or attempted enforcement of the Loan Documents,
and any matter related thereto. The foregoing costs and expenses shall include
filing fees, recording fees, title insurance fees, appraisal fees, search fees,
and other out-of-pocket expenses and the reasonable fees and out-of-pocket
expenses of any legal counsel (including reasonably allocated costs of legal
counsel employed by the Administrative Agent or any Bank), independent public
accountants and other outside experts retained by the Administrative Agent or
any Bank, whether or not such costs and expenses are incurred or suffered by the
Administrative Agent or any Bank in connection with or during the course of any
bankruptcy or insolvency proceedings of any of Borrowers or any Subsidiary
thereof. Borrowers shall pay any and all documentary and other taxes, excluding
(i) taxes imposed on or measured in whole or in part by any Bank's overall net
income imposed on such Bank (including taxes on gross income imposed in lieu of
net income, minimum taxes or branch profits taxes) by (A) any jurisdiction (or
political subdivision thereof) in which such Bank is organized or maintains its
principal office or LIBOR Lending Office or (B) any jurisdiction (or political
subdivision thereof) in which such Bank is "doing business" or (ii) any
withholding taxes or other taxes based on gross income imposed by the United
States of America for any period with respect to which any Bank has failed, for
any reason, to provide Borrowers with the appropriate form or forms required by
Section 11.21, to the extent such forms are then required by applicable Laws to
establish a complete exemption, and all costs, expenses, fees and charges
payable or determined to be payable in connection with the filing or recording
of this Agreement, any other Loan Document or any other instrument or writing to
be delivered hereunder or thereunder, or in connection with any transaction
pursuant hereto or thereto, and shall reimburse, hold harmless and indemnify on
the terms set forth in Section 11.11 the Administrative Agent and the Banks from
and against any and all loss, liability or legal or other expense with respect
to or resulting from any delay in paying or failure to pay any such tax, cost,
expense, fee or charge or that any of them may suffer or incur by reason of the
failure of any Party to perform any of its Obligations. Any amount payable to
the Administrative Agent or any Bank under this Section 11.3 shall bear interest
from the fifth Banking Day following the date of demand for payment at the
Default Rate.
11.4 Nature of Banks' Obligations. The obligations of the Banks hereunder
are several and not joint or joint and several. Nothing contained in this
Agreement or any other Loan Document and no action taken by the Administrative
Agent or the Banks or any of them pursuant hereto or thereto may, or may be
deemed to, make the Banks a partnership, an association, a joint venture or
other entity, either among themselves or with the Borrowers or any Affiliate of
any of Borrowers. A default by any Bank will not increase the Pro Rata Share of
the Commitments attributable to any other Bank. Any Bank not in default may, if
it desires, assume in such proportion as the nondefaulting Banks agree the
obligations of any Bank in default, but is not
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obligated to do so. The Administrative Agent agrees that it will use reasonable
efforts (which will not include the payment of money) either to induce the other
Banks to assume the obligations of a Bank in default or to obtain another Bank,
reasonably satisfactory to Borrowers, to replace such a Bank in default. A
defaulting Bank's right to participate in the administration of the Loan
Documents, including, without limitation, any rights to consent to or direct any
action or inaction of the Administrative Agent or to vote on any matter
presented to the Banks shall be suspended during the pendency of such Bank's
default.
11.5 Survival of Representations and Warranties. All representations and
warranties contained herein or in any other Loan Document, or in any certificate
or other writing delivered by or on behalf of any one or more of the Parties to
any Loan Document, will survive the making of the Loans hereunder and the
execution and delivery of the Notes, and have been or will be relied upon by the
Administrative Agent and each Bank, notwithstanding any investigation made by
the Administrative Agent or any Bank or on their behalf.
11.6 Notices. Except as otherwise expressly provided in the Loan
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must be mailed, telegraphed, telecopied, dispatched by commercial courier or
delivered to the appropriate party at the address set forth on the signature
pages of this Agreement or other applicable Loan Document or, as to any party to
any Loan Document, at any other address as may be designated by it in a written
notice sent to all other parties to such Loan Document in accordance with this
Section. Except as otherwise expressly provided in any Loan Document, if any
notice, request, demand, direction or other communication required or permitted
by any Loan Document is given by mail it will be effective on the earlier of
receipt or the fourth Banking Day after deposit in the United States mail with
first class or airmail postage prepaid; if given by telegraph or cable, when
delivered to the telegraph company with charges prepaid; if given by telecopier,
when sent; if dispatched by commercial courier, on the scheduled delivery date;
or if given by personal delivery, when delivered (provided that if any such
communication is received after normal business hours or on a day that is not a
Banking Day, it shall be deemed to have been received on the next Banking Day
following receipt). The Administrative Agent and the Banks shall be entitled to
rely and act upon any notices (including any telephonic requests for Loan)
purportedly given by or on behalf of Borrowers and Banks shall be entitled to
rely and act upon any notices (including any telephonic notices) purportedly
given to them by or on behalf of the Administrative Agent, even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. Borrowers shall indemnify Administrative Agent and each Bank from all
losses, costs, expenses and liabilities resulting from the reliance of such
Person on each notice purportedly given by Borrowers, except to the extent of
such Person's gross negligence.
11.7 Execution of Loan Documents. Unless the Administrative Agent
otherwise specifies with respect to any Loan Document, (a) this Agreement and
any other Loan Document may be executed in any number of counterparts and any
party hereto or thereto may execute any counterpart, each of which when executed
and delivered will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, when taken
together will be deemed to be but one and the same instrument and (b) execution
of any
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such counterpart may be evidenced by a telecopier transmission of the signature
of such party. The execution of this Agreement or any other Loan Document by any
party hereto or thereto will not become effective until counterparts hereof or
thereof, as the case may be, have been executed by all the parties hereto or
thereto.
11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which Borrowers
are a Party will be binding upon and inure to the benefit of Borrowers, the
Administrative Agent, each of the Banks, and their respective successors and
assigns, except that Borrowers may not assign their rights hereunder or
thereunder or any interest herein or therein without the prior written consent
of all the Banks, and any purported assignment without such consent shall be
null and void. Each Bank represents that it is not acquiring its Note with a
view to the distribution thereof within the meaning of the Securities Act of
1933, as amended (subject to any requirement that disposition of such Note must
be within the control of such Bank). Any Bank may at any time pledge its Note or
any other instrument evidencing its rights as a Bank under this Agreement to a
Federal Reserve Bank, but no such pledge shall release that Bank from its
obligations hereunder or grant to such Federal Reserve Bank the rights of a Bank
hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Bank may
assign to one or more Eligible Assignees all or any portion of its Commitment;
provided that (i) such Eligible Assignee, if not then a Bank or an Affiliate of
the assigning Bank, shall require approval by the Administrative Agent and (if
no Event of Default then exists) Parent (neither of which approvals shall be
unreasonably withheld or delayed), (ii) such assignment shall be evidenced by a
Commitments Assignment and Acceptance, a copy of which together with any Notes
subject to such assignment shall be furnished to the Administrative Agent as
hereinbelow provided, (iii) except in the case of an assignment to an Affiliate
of the assigning Bank, to another Bank or of the entire remaining Commitment of
the assigning Bank, the assignment shall not assign a share of the Commitment
that is equivalent to less than $10,000,000, (iv) the assignment shall be of a
constant, and not a varying, percentage of the Assignor's rights and obligations
under this Agreement, and (v) the effective date of any such assignment shall be
as specified in the Commitments Assignment and Acceptance, but not earlier than
the date which is five (5) Banking Days after the date the Administrative Agent
has received the Commitments Assignment and Acceptance unless otherwise agreed
by the Administrative Agent. Upon the effective date of such Commitments
Assignment and Acceptance, the Eligible Assignee named therein shall be a Bank
for all purposes of this Agreement, with a Pro Rata Share and Commitment amount
as therein (and herein, if such Eligible Assignee was already a Bank) set forth
and, to the extent of the portion of the Commitment assigned, the assigning Bank
shall be released from its further obligations under this Agreement. Borrowers
agree that they shall execute and deliver (against delivery by the assigning
Bank to Borrowers of its Note) to such assignee Bank, Notes evidencing that
assignee Bank's Commitment, and to the assigning Bank, Notes evidencing the
remaining balance of such Bank's Commitment.
(c) By executing and delivering a Commitments Assignment and
Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i)
the Administrative Agent has not made any representation or warranty and assumes
no responsibility with respect to any
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statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness or
sufficiency of this Agreement or any other Loan Document; (ii) the
Administrative Agent has not made any representation or warranty and assumes no
responsibility with respect to the financial condition of Borrowers or the
performance by Borrowers of the Obligations; (iii) it has received a copy of
this Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.1 and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into such Commitments Assignment and Acceptance; (iv) it will, independently and
without reliance upon the Administrative Agent or any Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement; (v) it appoints and authorizes the Administrative Agent to take such
action and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by this Agreement; and (vi) it will perform in accordance
with their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Bank.
(d) The Administrative Agent shall maintain at the Administrative
Agent's Office a copy of each Commitments Assignment and Acceptance delivered to
it and a register (the "Register") of the names and address of each of the Banks
and the Pro Rata Share and Commitment amount held by each Bank, giving effect to
each Commitments Assignment and Acceptance. The Register shall be available
during normal business hours for inspection by Borrowers or any Bank upon
reasonable prior notice to the Administrative Agent. After receipt of a
completed Commitments Assignment and Acceptance executed by any Bank and an
Eligible Assignee and the Notes subject to such assignment, and receipt of an
assignment fee of $3,500 from such Bank or Eligible Assignee, the Administrative
Agent shall, promptly following the effective date thereof, upon the request of
any Party, provide to Borrowers and the Banks a revised Schedule 1.1 giving
effect thereto. Borrowers, the Administrative Agent and the Banks shall deem and
treat the Persons listed as Banks in the Register as the holders and owners of
the Commitments listed therein for all purposes hereof, and no assignment or
transfer of any such Commitment shall be effective, in each case unless and
until a Commitments Assignment and Acceptance effecting the assignment or
transfer thereof shall have been accepted by the Administrative Agent and
recorded in the Register as provided above. Prior to such recordation, all
amounts owed with respect to the applicable Commitment shall be owed to the Bank
listed in the Register as the owner thereof, and any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Bank shall be conclusive
and binding on any subsequent holder, assignee or transferee of such Commitment.
(e) Each Bank may from time to time grant participations to one or
more banks or other financial institutions (including another Bank but excluding
an Employee Plan) in a portion of its Commitment ; provided, however, that (i)
such Bank's obligations under this Agreement shall remain unchanged, (ii) such
Bank shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other
financial institutions shall not be a Bank hereunder for any purpose except, if
the participation agreement so provides, for the purposes of Sections 3.7, 3.8,
11.11 and 11.22 but only to the extent that the cost of such benefits to
Borrowers does not exceed the cost which Borrowers would have incurred absent
the participation, (iv) Borrowers, the Administrative Agent and the
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other Banks shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement, (v) the
participation interest shall be expressed as a percentage of the granting Bank's
Commitment as it then exists and shall not afford such participant any rights or
privileges under the Loan Documents except as provided in clause (iii) above.
11.9 Right of Setoff. If an Event of Default has occurred and is
continuing, the Administrative Agent or any Bank (but in each case only with the
consent of the Requisite Banks and subject to the provisions of Section 11.10)
may exercise its rights under Article 9 of the Uniform Commercial Code and other
applicable Laws and, to the extent permitted by applicable Laws, apply any funds
in any deposit account maintained with it by Borrowers and/or any Property of
Borrowers in its possession against the Obligations. ANY AND ALL RIGHTS TO
REQUIRE ADMINISTRATIVE AGENT OR ANY BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH
RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN (IF ANY), PRIOR TO
EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS, OR OTHER
PROPERTY OF BORROWERS, ARE HEREBY, KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY
WAIVED.
11.10 Sharing of Setoffs. Each Bank severally agrees that if it, through
the exercise of any right of setoff, banker's lien or counterclaim against
Borrowers, or otherwise, receives payment of the Obligations held by it that is
ratably more than any other Bank, through any means, receives in payment of the
Obligations held by that Bank, then, subject to applicable Laws: (a) the Bank
exercising the right of setoff, banker's lien or counterclaim or otherwise
receiving such payment shall purchase, and shall be deemed to have
simultaneously purchased, from each of the other Banks a participation in the
Obligations held by the other Banks and shall pay to the other Banks a purchase
price in an amount so that the share of the Obligations held by each Bank after
the exercise of the right of setoff, banker's lien or counterclaim or receipt of
payment shall be in the same proportion that existed prior to the exercise of
the right of setoff, banker's lien or counterclaim or receipt of payment; and
(b) such other adjustments and purchases of participations shall be made from
time to time as shall be equitable to ensure that all of the Banks share any
payment obtained in respect of the Obligations ratably in accordance with each
Bank's share of the Obligations immediately prior to, and without taking into
account, the payment; provided that, if all or any portion of a disproportionate
payment obtained as a result of the exercise of the right of setoff, banker's
lien, counterclaim or otherwise is thereafter recovered from the purchasing Bank
by Borrowers or any Person claiming through or succeeding to the rights of
Borrowers, the purchase of a participation shall be rescinded and the purchase
price thereof shall be restored to the extent of the recovery, but without
interest (unless the Bank from which such payment is recovered is required to
pay interest thereon, in which case each Bank returning funds to such Bank shall
pay its pro rata share of such interest). Each Bank that purchases a
participation in the Obligations pursuant to this Section 11.10 shall from and
after the purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing
Bank were the original owner of the Obligations purchased. Borrowers expressly
consent to the foregoing arrangements and agree that any Bank holding a
participation in an Obligation so purchased pursuant to this Section 11.10 may
exercise
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any and all rights of setoff, banker's lien or counterclaim with respect to the
participation as fully as if the Bank were the original owner of the Obligation
purchased.
11.11 Indemnity by Borrowers. Borrowers agree to indemnify, save and hold
harmless the Administrative Agent and Lead Arranger and each Bank and their
respective directors, officers, agents, attorneys and employees (collectively
the "Indemnitees") from and against: (a) any and all claims, demands, actions or
causes of action (except a claim, demand, action, or cause of action for any
amount excluded from the definition of "Taxes" in Section 3.12(d)) if the claim,
demand, action or cause of action arises out of or relates to any act or
omission (or alleged act or omission) of Borrowers, their Affiliates or any of
their officers, directors or stockholders relating to the Commitments, the use
or contemplated use of proceeds of any Loan or any Letter of Credit, or the
relationship of Borrowers and the Banks under this Agreement; (b) any
administrative or investigative proceeding by any Governmental Agency arising
out of or related to a claim, demand, action or cause of action described in
clause (a) above; and (c) any and all liabilities, losses, costs or expenses
(including reasonable attorneys' fees and the reasonably allocated costs of
attorneys employed by any Indemnitee and disbursements of such attorneys and
other professional services) that any Indemnitee suffers or incurs as a result
of the assertion of any foregoing claim, demand, action or cause of action;
provided that no Indemnitee shall be entitled to indemnification for any loss
caused by its own gross negligence or willful misconduct or for any loss
asserted against it by another Indemnitee. If any claim, demand, action or cause
of action is asserted against any Indemnitee, such Indemnitee shall promptly
notify Borrowers, but the failure to so promptly notify Borrowers shall not
affect Borrowers' obligations under this Section unless such failure materially
prejudices Borrowers' right to participate in the contest of such claim, demand,
action or cause of action, as hereinafter provided. Such Indemnitee may (and
shall, if requested by Borrowers in writing) contest the validity, applicability
and amount of such claim, demand, action or cause of action and shall permit
Borrowers to participate in such contest. Any Indemnitee that proposes to settle
or compromise any claim or proceeding for which Borrowers may be liable for
payment of indemnity hereunder shall give Borrowers written notice of the terms
of such proposed settlement or compromise reasonably in advance of settling or
compromising such claim or proceeding and shall obtain Borrowers' prior consent
(which shall not be unreasonably withheld or delayed). In connection with any
claim, demand, action or cause of action covered by this Section 11.11 against
more than one Indemnitee, all such Indemnitees shall be represented by the same
legal counsel (which may be a law firm engaged by the Indemnitees or attorneys
employed by an Indemnitee or a combination of the foregoing) selected by the
Indemnitees and reasonably acceptable to Borrowers; provided, that if such legal
counsel determines in good faith that representing all such Indemnitees would or
could result in a conflict of interest under Laws or ethical principles
applicable to such legal counsel or that a defense or counterclaim is available
to an Indemnitee that is not available to all such Indemnitees, then to the
extent reasonably necessary to avoid such a conflict of interest or to permit
unqualified assertion of such a defense or counterclaim, each affected
Indemnitee shall be entitled to separate representation by legal counsel
selected by that Indemnitee and reasonably acceptable to Borrowers, with all
such legal counsel using reasonable efforts to avoid unnecessary duplication of
effort by counsel for all Indemnitees; and further provided that the
Administrative Agent (as an Indemnitee) shall at all times be entitled to
representation by separate legal counsel (which may be a law firm or attorneys
employed by the Administrative Agent or a combination of the foregoing). Any
obligation or liability of Borrowers to any Indemnitee under this Section 11.11
shall survive the expiration or termination of this Agreement
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and all Letters of Credit and the repayment of all Loans and the payment and
performance of all other Obligations owed to the Banks.
11.12 Nonliability of the Banks. Borrowers acknowledge and agree that:
(a) Any inspections of any Property of Borrowers made by or through
the Administrative Agent or the Banks are for purposes of administration of the
Loan only and Borrowers are not entitled to rely upon the same (whether or not
such inspections are at the expense of Borrowers);
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to the Administrative Agent or the Banks pursuant
to the Loan Documents, neither the Administrative Agent nor the Banks shall be
deemed to have warranted or represented the sufficiency, legality, effectiveness
or legal effect of the same, or of any term, provision or condition thereof, and
such acceptance or approval thereof shall not constitute a warranty or
representation to anyone with respect thereto by the Administrative Agent or the
Banks;
(c) The relationship between Borrowers and the Administrative Agent
and the Banks is, and shall at all times remain, solely that of borrowers and
lenders; neither the Administrative Agent nor the Banks shall under any
circumstance be construed to be partners or joint venturers of Borrowers or
their Affiliates; neither the Administrative Agent nor the Banks shall under any
circumstance be deemed to be in a relationship of confidence or trust or a
fiduciary relationship with Borrowers or their Affiliates, or to owe any
fiduciary duty to Borrowers or their Affiliates; neither the Administrative
Agent nor the Banks undertake or assume any responsibility or duty to Borrowers
or their Affiliates to select, review, inspect, supervise, pass judgment upon or
inform Borrowers or their Affiliates of any matter in connection with their
Property or the operations of Borrowers or their Affiliates; Borrowers and their
Affiliates shall rely entirely upon their own judgment with respect to such
matters; and any review, inspection, supervision, exercise of judgment or supply
of information undertaken or assumed by the Administrative Agent or the Banks in
connection with such matters is solely for the protection of the Administrative
Agent and the Banks and neither Borrowers nor any other Person is entitled to
rely thereon; and
(d) The Administrative Agent and the Banks shall not be responsible
or liable to any Person for any loss, damage, liability or claim of any kind
relating to injury or death to Persons or damage to Property caused by the
actions, inaction or negligence of Borrowers and/or its Affiliates and Borrowers
hereby indemnify and hold the Administrative Agent and the Banks harmless on the
terms set forth in Section 11.11 from any such loss, damage, liability or claim.
11.13 No Third Parties Benefited. This Agreement is made for the purpose
of defining and setting forth certain obligations, rights and duties of
Borrowers, the Administrative Agent and the Banks in connection with the Loans
and Letters of Credit, and is made for the sole benefit of Borrowers, the
Administrative Agent and the Banks, and the Administrative Agent's and the
Banks' successors and assigns. Except as provided in Sections 11.8, 11.11 and
11.22 no other Person shall have any rights of any nature hereunder or by reason
hereof.
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11.14 Confidentiality.
(a) Confidentiality. Each Bank and the Administrative Agent (each, a
"Lender Party") hereby agrees for itself only that, except as specifically set
forth herein, (i) such Lender Party shall not participate in or generate any
press release or other release of information to the general public relating to
the closing of the Loan without the prior written consent of the Borrowers, (ii)
such Lender Party shall hold the Confidential Information in strict confidence
in accordance with such Lender Party's customary procedures to prevent the
misuse or disclosure of confidential information of this nature and in
accordance with safe and sound banking practices, (iii) use the Confidential
Information solely for the purposes of underwriting the Loan or acquiring an
interest therein, carrying out such Lender Party's rights or obligations under
this Agreement, in connection with the syndication of the Loan, the enforcement
of the Loan Documents, or other internal examination, supervision or oversight
of the transactions contemplated hereby as reasonably determined by such Lender
Party, or as otherwise permitted by the terms of this Section 11.14
(collectively, "Permitted Purposes"), and (iv) not disclose the Confidential
Information to any third party, except as expressly authorized in this Agreement
or with prior written consent of Borrowers. Each Lender Party shall promptly
notify Borrowers in the event that it becomes aware of any loss or unauthorized
disclosure of any Confidential Information.
Each Lender Party shall not have any obligations under this Agreement with
respect to a specific portion of the Confidential Information if such Lender
Party can demonstrate that such Confidential Information (i) was publicly
available at the time it was disclosed to such Lender Party, (ii) became
publicly available subsequent to the time it was disclosed to such Lender Party
(except to the extent such public availability was the result of such Lender
Party's disclosure), (iii) was in or comes into a Lender Party's possession from
a source not known to such Lender Party (after reasonable inquiry) to be in
breach of an obligation of confidentiality owed to Borrowers in making such
disclosure to such Lender Party, (iv) was in or comes into Lender Party's
possession free of any obligation of confidence owed to the Borrowers at the
time it was disclosed to such Lender Party, or (v) was developed by the
employees or agents of the Lender Party without the use of the Confidential
Information.
(b) Disclosures. Any Lender Party or its legal counsel may disclose
the Confidential Information (i) to Borrowers, other Banks, the Administrative
Agent or any of their respective legal counsel, (ii) to its auditors in
connection with bank audits or regulatory officials having jurisdiction over
such Lender Party, (iii) to its legal counsel who need to know the Confidential
Information for the purposes of representing or advising the Lender Parties,
(iv) to its consultants, agents and advisors retained in good faith by such
Lender Party with a need to know such information in connection with a Permitted
Purpose or to otherwise advise or consult with such Lender Party, (v) as
required by Law or legal process (subject to the terms below), or in connection
with any legal proceeding to which that Lender Party and any of Borrowers are
adverse parties (and each Borrower hereby acknowledges and agrees that pursuant
to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001) (the "Act"), each Bank is required to obtain, verify
and record information that identifies the Borrowers, which information includes
the name and address of the Borrowers and other information that will allow such
Bank to identify the Borrowers in accordance with the Act), (vi) to another
potential Bank or participant in connection with a disposition or proposed
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disposition to that Person of all or part of that Lender Party's interests
hereunder or a participation interest in its Notes, and (vii) to its directors,
officers, employees and affiliates that control, are controlled by, or are under
common control with such Lender Party or its parent or otherwise within the
corporate umbrella of such Lender Party who need to know the confidential
information for purposes of underwriting the Loan or becoming a party to this
Agreement, the syndication of the Loan, the administration, interpretation,
performance or exercise of rights under the Loan Documents, the enforcement of
the Loan Documents, or other internal supervision, examination or oversight of
the transactions contemplated hereby as reasonably determined by such Lender
Party, provided that any Person to whom any of the Confidential Information is
disclosed is informed by such Lender Party of the strictly confidential nature
of the Confidential Information, and such Persons described in clauses (b)(iv)
and (vi) shall agree in writing to be bound by confidentiality restrictions at
least as restrictive as those contained herein. Notwithstanding the foregoing, a
Lender Party may disclose Confidential Information to the extent such Lender
Party is requested or required by any Law or any order of any court,
governmental, regulatory or self-regulatory body or other legal process to make
any disclosure of or about any of the Confidential Information. In such event
(except with respect to banking regulators or auditors), such Lender Party
shall, if permitted by law, promptly notify Borrowers in writing so that
Borrowers may seek an appropriate protective order or waive compliance with the
provisions of this Agreement (provided that if a protective order or the receipt
of a waiver hereunder has not been obtained, or if prior notice is not possible,
and a Lender Party is, in the opinion of its counsel, compelled to disclose
Confidential Information, such Lender Party may disclose that portion of the
Confidential Information which its counsel advises it that such Lender Party is
compelled to disclose, and provided further that in any event, such Lender Party
will not oppose action by Borrowers to obtain an appropriate protective order or
other reliable assurance that confidential treatment will be accorded the
Confidential Information.) Each Lender Party shall be liable (but only to the
extent it is finally determined to have breached the provisions of this Section
11.14(b)) for any actions by such Lender Party (but not any other Person) which
are not in accordance with the provisions of this Section 11.14(b).
Notwithstanding anything herein to the contrary, Confidential Information shall
not include, and Administrative Agent and each Bank may disclose to any and all
Persons, without limitation of any kind, any information with respect to the
"tax treatment" and "tax structure" (in each case, within the meaning of
Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby
and all materials of any kind (including opinions or other tax analyses) that
are provided to the Administrative Agent or any Bank relating to such tax
treatment and tax structure; provided that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or similar item that
relate to the tax treatment or tax structure of the Loans, the Letters of Credit
and transactions contemplated hereby.
(c) No Rights in Confidential Information. The Administrative Agent
and each Bank recognizes and agrees that nothing contained in this Section 11.14
shall be construed as granting any property rights, by license or otherwise, to
any Confidential Information (other than the Agreement or any amendments thereto
or any related agreements), or to any invention or any patent, copyright,
trademark, or other intellectual property right that has issued or that may
issue, based on such Confidential Information (other than the Agreement or any
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amendments thereto or any related agreements). No Lender Party shall make, have
made, use or sell for any purpose any product or other item using, incorporating
or derived from any such Confidential Information; provided that the foregoing
shall not limit or restrict in any way the creation, use or sale of banking or
related services by any Lender Party.
(d) Survival. All Confidential Information provided by or on behalf
of Borrowers during the term of this Agreement or any predecessor agreements
shall remain confidential indefinitely and shall continue to receive that level
of confidential treatment customarily provided by commercial banks dealing with
confidential information of their borrower customers, subject, however, to the
specific exceptions to confidential treatment provided herein. For a period of
one year after the Termination Date, the affected Lender Party shall continue to
make reasonable inquiry of any third party providing Confidential Information as
to whether such third party is subject to an obligation of confidentiality owed
to the Borrowers or their Subsidiaries and if such Lender Party obtains
knowledge that such third party is violating a confidentiality agreement with
Borrowers, such Lender Party shall treat the Confidential Information received
from such third party as strictly confidential in accordance with the provisions
of this Section 11.14. For purposes of this Section 11.14(d), the "Termination
Date" shall mean the earlier of the termination of this Agreement or, with
respect to a specific Lender Party, the date such Person no longer holds an
interest in the Loan.
(e) Injunctive Relief. Each Lender Party hereby agrees that breach
of this Section 11.14 will cause Borrowers irreparable damage for which recovery
of damages would be inadequate, and that Borrowers shall therefore be entitled
to obtain timely injunctive relief under this Agreement, as well as such further
relief as may be granted by a court of competent jurisdiction.
(f) No Fiduciary Duty. Nothing in this Section shall be construed to
create or give rise to any fiduciary duty on the part of the Administrative
Agent or the Banks to Borrowers.
(g) Separate Action. Borrowers covenant and agree not to, and hereby
expressly waive any right to, raise as a defense, affirmative defense, set off,
recoupment or otherwise against any Lender Party any claim arising from or
relating to an alleged breach of this Section 11.14 in any action, claim or
proceeding relating to a breach of the Loan Documents by Borrowers or other
action to enforce or recover the Obligations, and covenant and agree that any
claim against a Lender Party arising from or relating to an alleged breach of
this Section 11.14 by a Lender Party shall only be asserted as an affirmative
claim in a separate action against the applicable Lender Party.
11.15 Further Assurances. Borrowers shall, at their expense and without
expense to the Banks or the Administrative Agent, do, execute and deliver such
further acts and documents as the Requisite Banks or the Administrative Agent
from time to time reasonably require for the assuring and confirming unto the
Banks or the Administrative Agent of the rights hereby created or intended now
or hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.
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11.16 Integration. This Agreement, together with the other Loan Documents,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and supersedes all prior agreements, written or oral, on the
subject matter hereof. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control and govern; provided that the inclusion of supplemental
rights or remedies in favor of the Administrative Agent or the Banks in any
other Loan Document shall not be deemed a conflict with this Agreement. Each
Loan Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
11.17 Governing Law. Except to the extent otherwise provided therein, each
Loan Document shall be governed by, and construed and enforced in accordance
with, the Laws of California applicable to contracts made and performed in
California.
11.18 Severability of Provisions. Any provision in any Loan Document that
is held to be inoperative, unenforceable or invalid as to any party or in any
jurisdiction shall, as to that party or jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
11.19 Headings. Article and Section headings in this Agreement and the
other Loan Documents are included for convenience of reference only and are not
part of this Agreement or the other Loan Documents for any other purpose.
11.20 Time of the Essence. Time is of the essence of the Loan Documents.
11.21 Delivery of Tax Forms. Each Bank that is incorporated or otherwise
organized under the Laws of a jurisdiction other than the United States of
America or any State thereof or the District of Columbia shall deliver to
Borrowers (with a copy to the Administrative Agent), on or before the Closing
Date (or on or before accepting an assignment or receiving a participation
interest herein pursuant to Section 11.8, if applicable) two duly completed
copies, signed by a Responsible Official, of either Form W-8BEN (relating to
such Bank and entitling it to a complete exemption from withholding on all
payments to be made to such Bank by Borrowers pursuant to this Agreement) or
Form W-8ECI (relating to all payments to be made to such Bank by the Borrowers
pursuant to this Agreement), or W-8IMY, as applicable, of the United States
Internal Revenue Service or such other evidence satisfactory to Borrowers and
the Administrative Agent that no withholding under the federal income tax laws
is required with respect to such Bank. If a Bank is claiming a "portfolio
interest exemption", such Bank shall, in addition to Form W-8BEN, provide a
certificate signed by a Responsible Official to the effect that (i) such Bank is
not a bank within the meaning of Section 881(c)(3)(A) of the Code, (ii) such
Bank is not a 10% shareholder of any Borrower, and (iii) such Bank is not
related to any Borrower within the meaning of Section 881(c)(3)(C) of the Code.
Thereafter and from time to time, including before the expiration of any
previously delivered form, each such Bank shall (a) promptly submit to Borrowers
(with a copy to the Administrative Agent), such additional duly completed and
signed copies of one of such forms (or such successor forms as shall be adopted
from time to time by the relevant United States taxing authorities) as may then
be
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required under then current United States laws and regulations to avoid, or such
evidence as is satisfactory to Borrowers and the Administrative Agent of any
available exemption from, United States withholding taxes in respect of all
payments to be made to such Bank by Borrowers pursuant to this Agreement and (b)
take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Bank, and as may be reasonably necessary (including
the re-designation of its LIBOR Lending Office, if any) to avoid any applicable
deduction or withholding for taxes from amounts payable to such Bank. In the
event that Borrowers or the Administrative Agent become aware that a
participation has been granted pursuant to Section 11.8(e) to a financial
institution that is incorporated or otherwise organized under the Laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia, then, upon request made by Borrowers or the Administrative
Agent to the Bank which granted such participation, such Bank shall cause such
participant financial institution to deliver the same documents and information
to Borrowers and the Administrative Agent as would be required under this
Section if such financial institution were a Bank. Each Bank that is a United
States person shall, upon the reasonable request of Borrowers, deliver Form W-9
on or before the Closing Date (or on or before accepting an assignment or
receiving a participation pursuant to Section 11.8, if applicable) and before
the expiration of a previously delivered form.
11.22 Hazardous Material Indemnity. Each of Borrowers hereby agrees to
indemnify, hold harmless and defend (by counsel reasonably satisfactory to the
Administrative Agent) the Administrative Agent and each of the Banks and their
respective directors, officers, employees, agents, successors and assigns from
and against any and all claims, losses, damages, liabilities, fines, penalties,
charges, administrative and judicial proceedings and orders, judgments, remedial
action requirements, enforcement actions of any kind, and all costs and expenses
incurred in connection therewith (including but not limited to reasonable
attorneys' fees and the reasonably allocated costs of attorneys employed by the
Administrative Agent or any Bank, and expenses to the extent that the defense of
any such action has not been assumed by Borrowers), arising directly or
indirectly out of (i) the presence on, in, under or about any Real Property of
any Hazardous Materials, or any releases or discharges of any Hazardous
Materials on, under or from any Real Property and (ii) any activity carried on
or undertaken on or off any Real Property by Borrowers or any of its
predecessors in title, whether prior to or during the term of this Agreement,
and whether by Borrowers or any predecessor in title or any employees, agents,
contractors or subcontractors of Borrowers or any predecessor in title, or any
third persons at any time occupying or present on any Real Property, in
connection with the handling, treatment, removal, storage, decontamination,
clean-up, transport or disposal of any Hazardous Materials at any time located
or present on, in, under or about any Real Property. The foregoing indemnity
shall further apply to any residual contamination on, in, under or about any
Real Property, or affecting any natural resources, and to any contamination of
any Property or natural resources arising in connection with the generation,
use, handling, storage, transport or disposal of any such Hazardous Materials,
and irrespective of whether any of such activities were or will be undertaken in
accordance with applicable Laws, but the foregoing indemnity shall not apply to
Hazardous Materials on any Real Property, the presence of which is caused by the
Administrative Agent or the Banks. Borrowers hereby acknowledge and agree that,
notwithstanding any other provision of this Agreement or any of the other Loan
Documents to the contrary, the obligations of Borrowers under this Section (and
under Sections 4.17 and 5.10) shall be unlimited corporate obligations of
Borrowers and shall not be secured by any Lien on any Real Property. Any
obligation or liability of Borrowers to any Indemnitee under this
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Section 11.22 shall survive the expiration or termination of this Agreement and
all Letters of Credit and the repayment of all Loans and the payment and
performance of all other Obligations owed to the Banks.
11.23 Joint and Several. Each of Borrowers shall be obligated for all of
the Obligations on a joint and several basis, notwithstanding which of Borrowers
may have directly received the proceeds of any particular Loan. Each of
Borrowers acknowledges and agrees that, for purposes of the Loan Documents,
Borrowers constitute a single integrated financial enterprise and that each
receives a benefit from the availability of credit under this Agreement to all
of Borrowers. Each of Borrowers waives all defenses arising under the Laws of
suretyship, to the extent such Laws are applicable, in connection with its joint
and several obligations under this Agreement. Without limiting the foregoing,
each of Borrowers agrees to the Joint Borrower Provisions set forth in Exhibit
H, incorporated by this reference.
11.24 Removal of a Bank. Borrowers shall have the right to remove a Bank
as a party to this Agreement if (a) such Bank is paid a material amount by
Borrowers pursuant to Section 3.7 or Section 3.8, (b) any of the events
described in Section 9.1(j) occurs with respect to such Bank, or (c) such Bank
becomes (and at the time of the proposed removal hereunder remains) a Defaulting
Bank hereunder. Upon notice from Borrowers, such Bank shall execute and deliver
a Commitment Assignment and Acceptance covering that Bank's Pro Rata Share of
the Commitments in favor of such Eligible Assignee as Borrowers may designate
with the approval of the Administrative Agent, subject to payment in full by
such Eligible Assignee of all principal, interest and fees and any other amount
owing to such Bank through the date of assignment.
11.25 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.26 Purported Oral Amendments. BORROWERS EXPRESSLY ACKNOWLEDGE THAT THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE AMENDED OR MODIFIED, OR THE
PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED, BY AN INSTRUMENT IN WRITING
THAT COMPLIES WITH SECTION 12.1. BORROWERS AGREE THAT THEY WILL NOT RELY ON ANY
COURSE OF DEALING, COURSE OF PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS BY ANY
REPRESENTATIVE OF THE ADMINISTRATIVE AGENT OR ANY BANK THAT
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DOES NOT COMPLY WITH SECTION 12.1 TO EFFECT AN AMENDMENT, MODIFICATION, WAIVER
OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
11.27 Replacement of Notes. Upon receipt of evidence reasonably
satisfactory to the Borrowers of the loss, theft, destruction or mutilation of
any Note, and in the case of any such loss, theft or destruction, upon delivery
of an indemnity agreement reasonably satisfactory to the Borrowers or, in the
case of any such mutilation, upon surrender and cancellation of the applicable
Note, the Borrowers will execute and deliver, in lieu thereof, a replacement
Note, identical in form and substance to the applicable Note and dated as of the
date of the applicable Note and upon such execution and delivery all references
in the Loan Documents to such Note shall be deemed to refer to such replacement
Note.
11.28 Defaulting Banks. In the event that any Bank becomes a Defaulting
Bank, then, in addition to any rights and remedies that may be available to
Borrowers or the other Banks and Administrative Agent (such other Banks and
Administrative Agent being called "Non-Defaulting Banks") at law or in equity:
(a) The Defaulting Bank's rights to participate in the
administration of the Loan and the Loan Documents, including any right to vote
upon, approve, disapprove, consent to or direct any action of Administrative
Agent (other than amendments to the Loan Documents directly affecting the
Defaulting Bank's Commitment), shall be suspended and such rights shall not be
reinstated unless and until such Bank ceases to be a Defaulting Bank (and all
decisions, except the decision to remove Administrative Agent, which are to be
based on a vote of the Requisite Banks or all Banks shall be resolved based upon
a decision or determination made by the required percentage of the
Non-Defaulting Banks); provided, however, that if Administrative Agent is a
Defaulting Bank, Administrative Agent shall continue to have all rights provided
for in this Loan Agreement, as Administrative Agent only, with respect to the
administration of the Loan unless it is removed and replaced as Administrative
Agent as provided in Section 10.8
(b) Any or all of the Non-Defaulting Banks shall be entitled (but
shall not be obligated) to: (i) fund the aggregate amount that the Defaulting
Bank has failed to fund or pay to Administrative Agent (such amount being called
the "Defaulted Amount"); and (ii) collect interest at the Default Rate on the
Defaulted Amount (after crediting all interest actually paid by Borrowers on the
Defaulted Amount from time to time), either directly from the Defaulting Bank or
from amounts otherwise payable to the Defaulting Bank, for the period from the
date on which the Defaulted Amount was funded by the Non-Defaulting Banks until
the date on which payment is made. If Administrative Agent has funded the
Defaulted Amount, Administrative Agent shall be entitled to collect interest at
the Default Rate from the Defaulting Bank on the Defaulted Amount as set forth
above, as if Administrative Agent were a Non-Defaulting Bank that had elected to
fund the Defaulted Amount.
(c) In the event the Defaulted Amount is funded by any
Non-Defaulting Banks or Administrative Agent pursuant to Section 11.28(b) above,
the Defaulting Bank's interest in the Loans, the Loan Documents and proceeds
thereof shall be subordinated to any Defaulted Amount funded by any
Non-Defaulting Banks or Administrative Agent pursuant to Section 11.28(b) above,
plus all interest which may be due in accordance with Section 11.28(b)
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above (to be applied pari passu among the Non-Defaulting Banks (including
Administrative Agent, unless Administrative Agent is the Defaulting Bank)
funding the Defaulted Amount), without necessity for executing any further
documents; provided that such Defaulting Bank's interest in the Loan, the Loan
Documents and the proceeds thereof shall no longer be so subordinated if the
Defaulted Amount funded by the Non-Defaulting Banks or Administrative Agent (and
all interest which has accrued pursuant to Section 11.28(b) above) shall be
repaid in full.
(d) If, following the payment in full of all amounts due pursuant to
Section 11.28(c) above to the Non-Defaulting Banks (including Administrative
Agent, unless Administrative Agent is the Defaulting Bank) who have funded all
or any portion of any Defaulted Amount, there remains any unfunded Defaulted
Amount which has not been funded by the Non-Defaulting Banks, Administrative
Agent or the Defaulting Bank ("Unfunded Defaulted Amount"), then a portion of
the Defaulting Bank's interest in the Loan, the Loan Documents and the proceeds
thereof equal to the amount of the Unfunded Defaulted Amount (together with
interest thereon at the rate applicable to the Defaulted Amount from time to
time pursuant to the Loan Documents) shall be subordinated to the interests of
the Non-Defaulting Banks (including Administrative Agent, unless Administrative
Agent is the Defaulting Bank) unless and until such Unfunded Defaulted Amount is
funded either by one or more Non-Defaulting Banks, Administrative Agent or the
Defaulting Bank.
(e) Subject to the provisions of Section 11.8 and the definition of
Eligible Assignee, each Non-Defaulting Bank will have the right, but not the
obligation, in its sole discretion, to acquire at par all or a proportionate
share (based on the ratio of its Commitment to the aggregate amount of the
Commitments of all of the Non-Defaulting Banks that elect to acquire a share of
the Defaulting Bank's Commitment) of the Defaulting Bank's Commitment, including
without limitation its proportionate share in the outstanding principal balance
of the Loan, and all rights and interests of the Defaulting Bank under this
Agreement and the other Loan Documents.
Nothing herein contained shall be deemed or construed to waive, diminish,
limit, prevent or estop Administrative Agent, Borrowers or any Bank from
exercising or enforcing any rights or remedies which may be available at law or
in equity as a result of or in connection with any default under this Agreement
by a Bank (including the right to bring suit against the Defaulting Bank to
recover the Defaulted Amount and interest thereon at the rate provided in this
Section 11.28).
ARTICLE 12
AMENDMENTS; CONSENTS
12.1 Amendments; Consents. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by Borrowers or any other Party therefrom, may in any event be
effective unless in writing signed by the Requisite Banks (and, in the case of
any amendment, modification or supplement of or to any Loan Document to which
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any of Borrowers is a Party, signed by each such Party, and, in the case of any
amendment, modification or supplement to Section 3.2 or Article 10, signed by
the Administrative Agent), and then only in the specific instance and for the
specific purpose given; and, without the approval in writing of all the Banks,
no amendment, modification, supplement, termination, waiver or consent may be
effective:
(a) To amend, modify, forgive, reduce or waive the principal of, or
the amount of principal, principal prepayments or the rate of interest payable
on, any Note, or the amount of the Commitments or the Pro Rata Share of any Bank
or the amount of any commitment fee payable to any Bank, or any other fee or
amount payable to any Bank under the Loan Documents or to waive an Event of
Default consisting of the failure of Borrowers to pay when due principal,
interest or any fee;
(b) To postpone any date fixed for any payment of principal of,
prepayment of principal of or any installment of interest on, any Note or any
installment of any fee, or to extend the term of the Commitments (other than
pursuant to Section 2.10);
(c) To amend the provisions of the definition of "Requisite Banks"
or "Maturity Date";
(d) To amend or waive this Section 12.1;
(e) To amend any provision of this Agreement that expressly requires
the consent or approval of all of the Banks to require a lesser number of Banks
to approve such action;
(f) To release any Borrower; or
(g) To change the manner of distribution of any payments to the
Banks or the Administrative Agent.
No amendment, modification, supplement, extension, termination or waiver or
consent may be effective to require a Bank to fund more than its Pro Rata Share
of a Request for an Advance, a Swing Loan or a Letter of Credit without the
approval of any Bank affected thereby. Notwithstanding anything herein to the
contrary, the Administrative Agent may with the approval of the Requisite Banks
temporarily waive compliance by Borrowers with any condition, obligation or
covenant contained in this Agreement or the Loan Documents for a period not to
exceed sixty (60) days, provided, however, that any such condition, obligation
or covenant so waived may not be consecutively waived after the expiration of
such sixty (60) day period. There shall be no amendment, modification or waiver
of any provisions in the Loan Documents with respect to Swing Loans without the
consent of the Swing Loan Bank and there shall be no amendment, modification or
waiver of any provisions in the Loan Documents with respect to Letters of Credit
without the consent of Administrative Agent. Any amendment, modification,
supplement, termination, waiver or consent pursuant to this Section 12.1 shall
apply equally to, and shall be binding upon, all the Banks and the
Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Revolving Loan
Agreement to be duly executed as of the date first above written.
"BORROWERS":
BIOMED REALTY TRUST, INC., a Maryland
corporation
By: /s/ XXXX X. GOLD
--------------------------------------
Name: XXXX X. GOLD
Title: CHIEF EXECUTIVE OFFICER
BIOMED REALTY, L.P., a Maryland limited
partnership
By: BioMed Realty Trust, Inc., its sole
general partner
By: /s/ XXXX X. GOLD
----------------------------------
Name: XXXX X. GOLD
Title: CHIEF EXECUTIVE OFFICER
Address for each of the foregoing:
BioMed Realty Trust, Inc.
00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
BioMed Realty, LP
00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
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"ADMINISTRATIVE AGENT":
U.S. BANK NATIONAL ASSOCIATION, a
national banking association, as
Administrative Agent
By: /s/ XXXXX X. XXXXXXXXX
--------------------------------------
Xxxxx X. Xxxxxxxxx, Assistant Vice
President
Address:
U.S. Bank National Association
0000 Xx Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
"BANKS"
U.S. BANK NATIONAL ASSOCIATION, a
national banking association
By: /s/ XXXXX X. XXXXXXXXX
-------------------------------------
Xxxxx X. Xxxxxxxxx, Assistant Vice
President
Address:
U.S. Bank National Association
0000 Xx Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
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KEYBANK NATIONAL ASSOCIATION, a
national banking association
By: /s/ [SIGNATURE ILLEGIBLE]
--------------------------------------
Vice President
Address:
KeyBank National Association
0000 Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
ROYAL BANK OF CANADA
By: /s/ XXXXXX X. XXXXXXXXX
-------------------------------------
Xxxxxx X. XxxXxxxxx,
Authorized Signatory
Address:
Royal Bank of Canada, New York Branch
One Liberty Plaza, 3rd Floor
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Loan Administration
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