Exhibit 10.1
SECURED TERM LOAN AGREEMENT
DATED AS OF MAY 31, 2005
This SECURED TERM LOAN AGREEMENT is entered into as of May 31, 2005 (the
"Agreement Effective Date") by and among BIOMED REALTY, L.P., a Maryland limited
partnership ("Borrower" or "Operating Partnership"), KEYBANK NATIONAL
ASSOCIATION, a national banking association ("KeyBank"), each lender 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 11.8
(collectively, together with KeyBank, the "Lenders" and, individually, a
"Lender") and KEYBANK NATIONAL ASSOCIATION, not individually but as
"Administrative Agent."
RECITALS
WHEREAS, Borrower has requested that the Lenders provide certain secured
loans to Borrower; and
WHEREAS, the Lenders 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:
"Account Agreement" means the Account Security, Pledge, Assignment and
Control Agreement dated of even date herewith among Borrower, the Administrative
Agent, for the benefit of the Lenders, and KeyBank, as depository bank with
respect to the payment of Excess Funds by Borrower and the Subject Property
Owners to the Deposit Account, as the same may be modified, amended or restated
from time to time.
"Acknowledgments" means collectively, the Acknowledgments executed by the
Subject Property Owners in favor of the Administrative Agent, for the benefit of
Lenders, as the same may be modified, amended or restated from time to time.
"Adjusted EBITDA" means, as of any date, (a) EBITDA with respect to the
Consolidated Group for the most recent Fiscal Quarter for which financial
results have been reported less (b) Capital Reserves divided by four (4).
"Adjusted NOI" means, as of any date with respect to any Project or group
of Projects, an annualized amount determined by multiplying four (4) times NOI
of such Project or group of Projects for the most recent Fiscal Quarter for
which financial results have been reported and deducting therefrom the
then-current annualized Capital Reserves with respect to such Project or group
of Projects.
"Administrative Agent" means KeyBank, 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 office
located at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, or such other office as the
Administrative Agent hereafter may designate by written notice to Borrower and
the Lenders.
"Advance" means that portion of any Loan funded by a single Lender.
"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 which 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.
"Aggregate Subject Properties Value" means, as of any date, that portion
of Gross Asset Value attributable to Subject Properties.
"Agreement" means this Secured Term Loan Agreement, either as originally
executed or as it may from time to time be extended, supplemented, consolidated,
amended, restated, increased, renewed or modified.
"Alternate Base Rate" means, as of any date of determination, the rate per
annum equal to the higher of (a) the Prime Rate in effect on such date and (b)
the Federal Funds Effective Rate in effect on such date plus one-half of 1% (50
basis points) plus, in either case, the Applicable Margin.
"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 two and one-quarter percent (2.25%) per annum
with respect to LIBOR Rate Loans and one-half percent (0.50%) per annum with
respect to Alternate Base Rate Loans, as the case may be.
"Assignment of Interests" means, collectively, (i) the Collateral
Assignments of Interests dated of even date herewith from Borrower to the
Administrative Agent, for the benefit of the Lenders, as the same may be
modified, amended or restated, pursuant to which there shall be granted to the
Administrative Agent a first priority lien and security interest in the
applicable Equity Interests and the other interests of Borrower in the
Collateral described therein, and (ii) each additional Collateral Assignment of
Interests in favor of Administrative Agent, for the benefit of the Lenders,
delivered pursuant to the terms of Section 2A.2, as the same may be modified,
amended or
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restated, and any further assignments, certificates, powers, consents,
acknowledgments, estoppels or UCC-1 financing statements that may be delivered
in connection therewith.
"Assignors" means, collectively, Borrower and each Person executing an
Assignment of Interests as an assignor after the date hereof.
"Banking Day" means (i) with respect to any borrowing, payment or rate
selection of LIBOR Rate Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Cleveland, Ohio, and New York, New York for
the conduct of substantially all of their commercial lending activities and on
which dealings in Dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Cleveland, Ohio, and New York, New York for the conduct of
substantially all of their commercial lending activities.
"Bayshore Project" means the Project currently owned by Borrower and
located in Brisbane, California.
"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, other than
those obligations so classified solely as a result of FAS 141.
"Capital Reserves" means, as of any date with respect to any
Income-Producing Project or group of Income-Producing Projects, an annual amount
equal to (i) $0.30 per square foot of the aggregate Net Rentable Area of those
Income-Producing Projects owned by a member of the Consolidated Group as of the
last day of the most recent Fiscal Quarter for which financial results have been
reported and (ii) the applicable Consolidated Group Pro Rata Share of $0.30 per
square foot of the Net Rentable Area of those Income-Producing Projects owned by
an Investment Affiliate as of the last day of such Fiscal Quarter.
"Capitalization Rate" means nine and one quarter percent (9.25%). The
Capitalization Rate shall be reviewed annually by the Lenders and may be
adjusted (upward or downward) effective as of each anniversary of the date of
this Agreement to such percentage as the Requisite Lenders may determine, in
good faith and in their reasonable discretion, after consultation with Borrower,
to reflect then-current capitalization rates for similar assets.
"Cash Equivalents" means, as of any date:
(i) securities issued or directly and fully guaranteed or insured by
the United States of America government or any agency or instrumentality
thereof having maturities of not more than one year from such date;
(ii) mutual funds organized under the United States Investment
Company Act of 1940, as amended, rated AAm or AAm-G by S&P and P-1 by
Xxxxx'x;
(iii) certificates of deposit or other interest-bearing obligations
of a bank or trust company which is a member in good standing of the
Federal Reserve System having a short term unsecured debt rating of not
less than A-1 by S&P and not less than P-1 by Xxxxx'x (or in each case, if
no bank or trust company is so rated, the highest comparable rating then
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given to any bank or trust company, but in such case only for funds
invested overnight or over a weekend) provided that such investments shall
mature or be redeemable upon the option of the holders thereof on or prior
to a date one month from the date of their purchase;
(iv) certificates of deposit or other interest-bearing obligations
of a bank or trust company which is a member in good standing of the
Federal Reserve System having a short term unsecured debt rating of not
less than A-1+ by S&P, and not less than P-1 by Xxxxx'x and which has a
long term unsecured debt rating of not less than A1 by Xxxxx'x (or in each
case, if no bank or trust company is so rated, the highest comparable
rating then given to any bank or trust company, but in such case only for
funds invested overnight or over a weekend) provided that such investments
shall mature or be redeemable upon the option of the holders thereof on or
prior to a date three months from the date of their purchase;
(v) bonds or other obligations having a short term unsecured debt
rating of not less than A-1+ by S&P and P-1+ by Xxxxx'x and having a long
term debt rating of not less than A1 by Xxxxx'x issued by or by authority
of any state of the United States of America, any territory or possession
of the United States of America, including the Commonwealth of Puerto Rico
and agencies thereof, or any political subdivision of any of the
foregoing;
(vi) repurchase agreements issued by an entity rated not less than
A-1+ by S&P, and not less than P-1 by Xxxxx'x which are secured by United
States of America government securities of the type described in clause
(i) of this definition maturing on or prior to a date one month from the
date the repurchase agreement is entered into;
(vii) short term promissory notes rated not less than A-1+ by S&P,
and not less than P-1 by Xxxxx'x maturing or to be redeemable upon the
option of the holders thereof on or prior to a date one month from the
date of their purchase; and
(viii) commercial paper (having original maturities of not more than
365 days) rated at least A-1+ by S&P and P-1 by Xxxxx'x and issued by a
foreign or domestic issuer who, at the time of the investment, has
outstanding long-term unsecured debt obligations rated at least A1 by
Xxxxx'x.
"Certificate" means a certificate signed by a Senior Officer or
Responsible Official (as applicable) of the Person providing the certificate.
"Changeover Date" is defined in Section 6.12.
"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 Borrower and the Lenders 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.
"Collateral" means all of the property, rights and interests of Borrower
and its Subsidiaries that are subject to the security interests and Liens
created by the Security Documents.
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"Commitments" means the commitments of each of the Lenders (as initially
specified in Schedule 1.1 hereto) to make Advances under this Agreement.
"Commitments Assignment and Acceptance" means an assignment and acceptance
agreement substantially in the form of Exhibit A.
"Compliance Certificate" means a certificate in the form of Exhibit B,
properly completed and signed by a Senior Officer of Borrower.
"Confidential Information" means (i) all of the terms, covenants,
conditions or agreements set forth 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 Lenders 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 Projects or their condition or use, whether prepared by Borrower
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
Parent, its Subsidiaries or the Investment Affiliates that the Administrative
Agent or any Lender 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 Parent, its Subsidiaries, the
Investment Affiliates, 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 be disclosed or accessible
to the Administrative Agent and the Lenders as embodied within tangible material
(such as documents, drawings, pictures, graphics, software, hardware, graphs,
charts, or disks), orally, or visually.
"Consolidated Group" means Parent, Borrower and all Subsidiaries of
Borrower which are consolidated with Parent and Borrower for financial reporting
purposes under GAAP.
"Consolidated Group Pro Rata Share" means, with respect to any Investment
Affiliate, the percentage of the total equity ownership interests held by the
Consolidated Group in the aggregate in such Investment Affiliate determined by
calculating the greater of (i) the percentage of the issued and outstanding
stock, partnership interests or membership interests in such Investment
Affiliate held by the Consolidated Group in the aggregate and (ii) the
percentage of the total book value of such Investment Affiliate that would be
received by the Consolidated Group in the aggregate upon liquidation of such
Investment Affiliate, after repayment in full of all Indebtedness of such
Investment Affiliate.
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"Consolidated Outstanding Indebtedness" means, as of any date of
determination, without duplication, the sum of (a) all Indebtedness of the
Consolidated Group outstanding at such date, determined on a consolidated basis
in accordance with GAAP (whether recourse or non-recourse), plus, without
duplication, (b) the applicable Consolidated Group Pro Rata Share of any
Indebtedness of each Investment Affiliate other than Indebtedness of such
Investment Affiliate to a member of the Consolidated Group.
"Continuing Tenant" means, with respect to any Income-Producing Project
for any Fiscal Quarter, a tenant of such Project which was in occupancy at all
times during such Fiscal Quarter and paying rent.
"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 Borrower or a
Wholly-Owned Subsidiary of Borrower 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 Borrower or a
Wholly-Owned Subsidiary of Borrower 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 member of the
Consolidated Group of any debt securities of such member, excluding debt
securities issued to and retained by another member of the Consolidated Group.
"Debt Service" means, for any Fiscal Quarter, the sum of all Interest
Expense and all mandatory or regularly scheduled principal payments due and
payable during such period on the related Indebtedness, excluding any balloon
payments due upon maturity of such Indebtedness (provided that Debt Service with
respect to the Consolidated Group shall include only the applicable Consolidated
Group Pro Rata share of all such principal payments for such Fiscal Quarter with
respect to Indebtedness of Investment Affiliates). Debt Service shall include
the portion of rent payable by a Person during such Fiscal Quarter 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 Lender" means (a) any Lender that has failed to fund any
Advance within two (2) Banking Days after such funding is required pursuant to
this Agreement; or (b) any Lender
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that has (i) breached any other material term or condition of this Agreement or
(ii) failed to make any other payment to the 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 the 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 the Administrative Agent to such Lender.
"Default Rate" means the interest rate prescribed in Section 3.6.
"Deposit Account" means a collateral account to be maintained by KeyBank
pursuant to the Account Agreement, and any replacement or substitution account
thereafter established with the prior written consent of Administrative Agent.
"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 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 or (iv) any other payment in cash or Property by such Person
constituting a distribution under applicable Laws with respect to such security
or interest.
"Dollars" or "$" means United States of America dollars.
"EBITDA" means, with respect to any Person for any Fiscal Quarter, the Net
Income of such Person (from operations and from discontinued operations) for
that Fiscal Quarter, before (i) interest, income taxes, depreciation,
amortization and all other non-cash expenses (including non-cash compensation,
to the extent not actually paid as a cash expense) of such Person for that
Fiscal Quarter and (ii) extraordinary gains (and losses) of such Person, in each
case as determined on a consolidated basis in accordance with Generally Accepted
Accounting Principles; provided, that in performing the foregoing calculation of
EBITDA with respect to the Consolidated Group, that portion of EBITDA
attributable to the Consolidated Group's equity interests in any Investment
Affiliates shall be deducted, and the applicable Consolidated Group Pro Rata
Share of EBITDA in each such Investment Affiliate shall be added back into the
calculation.
"Eligible Assignee" means (a) any Lender, (b) any Lender, any Affiliate of
any Lender and any Related Fund of any Lender (any two or more Related Funds
being treated as a single Eligible Assignee for all purposes hereof), (c) any
commercial bank having a combined capital and surplus of $5,000,000,000 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 Lender hereunder to the same degree as a commercial bank, and
(f) any other financial institution (including a mutual fund or other fund)
approved by the Administrative Agent and, unless an Event of Default shall have
occurred and be continuing,
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Borrower (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 Interests" means the legal, equitable and beneficial ownership
interest of Borrower (or any Subsidiaries of Borrower) in any Subsidiary of
Borrower which is a direct owner of a Subject Property that is not subject to
any agreement, document or instrument that prohibits the pledge, assignment
and/or transfer of such interests as reasonably determined by Borrower and
confirmed by Administrative Agent in its reasonable discretion. As of the
Agreement Effective Date, Equity Interests includes only Borrower's 100% Equity
Interest in BMR-7 Lucent Drive LLC, a Delaware limited liability company.
"Equity Offering" means the issuance and sale by any member of the
Consolidated Group of any equity securities of such member, excluding equity
securities issued to and retained by another member of the Consolidated Group.
"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.
"Excess Funds" means all profits, proceeds or other income relating to or
arising from each Subject Property Owner's use, operation, financing,
refinancing, sale or other disposition of its Subject Property after (a) the
payment by such Subject Property Owner of debt service on its Indebtedness,
including all applicable Subject Property Indebtedness, and operating expenses
then due and payable and (b) the establishment of reserves in amounts reasonably
acceptable to the Administrative Agent for the payment of operating expenses and
capital improvements to be made
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to such Subject Property Owner's assets and properties as required by the
Subject Property Owner in the ordinary course of business consistent with past
practices.
"Excluded Tenant" means, with respect to any Income-Producing Project for
any Fiscal Quarter, a tenant of such Project (i) whose lease expired or was
terminated during such Fiscal Quarter or within thirty (30) days after the
expiration of such Fiscal Quarter or (ii) which either defaulted in the payment
of any of its lease obligations during such Fiscal Quarter (and such payment
default is continuing after all required notices have been given and all
applicable cure periods provided for in such lease have expired) or was the
debtor in a voluntary or involuntary proceeding under any Debtor Relief Law
during such Fiscal Quarter.
"FAS 141" means Statement No. 141 issued by the Financial Accounting
Standards Board.
"Federal Funds Effective Rate" shall mean, for any day, the rate per annum
announced by the Federal Reserve Bank of Cleveland on such day as being the
weighted average of the rates on overnight federal funds transactions arranged
by federal funds brokers on the previous trading day, as computed and announced
by such Federal Reserve Bank in substantially the same manner as such Federal
Reserve Bank computes and announces the weighted average it refers to as the
"Federal Funds Effective Rate."
"Fee Letter" means that certain fee letter dated as of April 12, 2005
among the Parent, Borrower and the Administrative Agent.
"Fiscal Quarter" means the fiscal quarter of the Consolidated Group ending
on each March 31, June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of Borrower ending on each December
31.
"Fixed Charge Coverage Ratio" means, as of any date, (a) Adjusted EBITDA
divided by (b) the sum of (i) Debt Service with respect to the Consolidated
Group plus (ii) all Preferred Distributions of the Consolidated Group plus (iii)
the Consolidated Group Pro Rata Share of all Preferred Distributions of
Investment Affiliates, in each case based on the most recent Fiscal Quarter for
which financial results have been reported.
"Funds Available for Distribution" means with respect to any fiscal
period, an amount equal to (a) Funds From Operations of the Consolidated Group,
minus (b) Net Capital Expenditures of the Consolidated Group incurred during
such fiscal periods plus (c) non-cash compensation of the Consolidated Group,
plus (d) revenue of the Consolidated Group from master leases of the KOP Project
and the Bayshore Project, provided such aggregate amount shall be adjusted to
exclude the effects of (x) straight lining of rents, and (y) the above/below
market lease amortization recorded in accordance with FAS 141, without
duplication, plus (e) if such fiscal period includes a Fiscal Quarter ending on
or before September 30, 2005, any unamortized financing fees included in
interest expense as a result of the termination or repayment of the related
financing on or before September 30, 2005.
"Funds From Operations" with respect to any fiscal period shall have the
same meaning determined from time to time by the National Association of Real
Estate Investment Trusts to be the meaning most commonly used by its members.
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"Generally Accepted Accounting Principles" or "GAAP" 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.
"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 any day, an amount equal to the sum of
the following assets then owned by a member of the Consolidated Group or an
Investment Affiliate and valued as follows: (i) Adjusted NOI attributable to
Projects owned by a member of the Consolidated Group (or the Consolidated Group
Pro Rata Share thereof with respect to Projects owned by an Investment
Affiliate) (excluding any such portion of such Adjusted NOI attributable to (a)
Projects that were Unstabilized Projects at any time during the Fiscal Quarter
with respect to which Adjusted NOI is determined, (b) Projects acquired after
the first day of such Fiscal Quarter, or (c) Projects disposed of during or
after such Fiscal Quarter), divided by the Capitalization Rate; plus, without
duplication, (ii) with respect to each such excluded Project that was an
Unstabilized Project, the greater of (a) the portion of such Adjusted NOI
attributable to such excluded Project (or the Consolidated Group Pro Rata Share
thereof with respect to any such excluded Project owned by an Investment
Affiliate), divided by the Capitalization Rate and (b) the Consolidated Group's
GAAP cost basis (or the Consolidated Group Pro Rata Share thereof with respect
to any such excluded Project owned by an Investment Affiliate) in such excluded
Project; plus (iii) the acquisition cost of all Projects acquired after the
first day of such Fiscal Quarter and on or prior to such date of determination
(or the Consolidated Group Pro Rata Share thereof with respect to any such
acquired Project owned by an Investment Affiliate); plus (iv) the acquisition
cost of all raw land held for development as of such date (or the Consolidated
Group Pro Rata Share thereof with respect to any such land owned by an
Investment Affiliate) (provided that the amount contributed to Gross Asset Value
under this clause (iv) shall not exceed 10% of the total Gross Asset Value);
plus (v) cash and Cash Equivalents of the Consolidated Group as of such date of
determination.
"Guarantee" or "Guaranteed 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
Guarantee Obligation shall not include endorsements of
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instruments for deposit or collection in the ordinary course of business. The
amount of any Guarantee 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 Guarantee 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.
"Guarantors" means, as of any date, collectively, (a) Parent, (b) those
Subsidiaries of the Borrower listed on Schedule 1.2 and (c) those Subsidiaries
of Borrower which subsequently become parties to the Subsidiary Guaranty by
executing and delivering a Joinder Agreement.
"Guaranty" means, collectively, that certain Parent Guaranty dated as of
the Agreement Effective Date executed by Parent in the form attached hereto as
Exhibit C-1 and made a part hereof, and that certain Subsidiary Guaranty dated
as of the Agreement Effective Date executed by the initial Subsidiary Guarantors
in the form attached hereto as Exhibit C-2 and made a part hereof, as such
Subsidiary Guaranty may be amended from time to time including by the joinder of
additional Subsidiary Guarantors therein pursuant to a Joinder Agreement, as
required by Section 2A.2.
"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 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
Projects.
"Income-Producing Project" means any Project other than an Unstabilized
Project.
"Indebtedness" means, with respect to a Person, at the time of computation
thereof, all of the following (without duplication): (a) all obligations of such
Person in respect of money borrowed; (b) all obligations of such Person, whether
or not for money borrowed (i) represented by notes payable, or drafts accepted,
in each case representing extensions of credit, (ii) evidenced by bonds,
debentures, notes or similar instruments, or (iii) constituting purchase money
indebtedness, conditional sales contracts or other similar instruments, upon
which interest charges are customarily paid or that are issued or assumed as
full or partial payment for Property or services rendered; (c) Capital Lease
Obligations of such Person; (d) all reimbursement obligations of such Person
under any letters of credit or acceptances (whether or not the same have been
presented for payment); (e) all off-balance sheet obligations of such Person;
(f) all obligations of such Person in respect of any repurchase obligation,
takeout commitment or forward equity commitment, in each case evidenced by a
binding agreement (it being understood that the term "Indebtedness" shall not
include trade payables incurred in the ordinary course of business or
obligations of such Person under purchase agreements pertaining to potential
acquisition by such Person of additional real properties (and related assets));
(g) net xxxx to market exposure of such Person under any interest rate
protection
- 11 -
agreement (including, without limitation, any interest rate swaps, caps, floors,
collars and similar agreements) and currency swaps and similar agreements; (h)
all Indebtedness of other Persons which such Person has Guaranteed or is
otherwise recourse to such Person (except for guaranties of customary
non-recourse "carve-out" exceptions for fraud, misapplication of funds,
environmental indemnities and other similar exceptions to recourse liability
(but not exceptions relating to bankruptcy, insolvency, receivership or other
similar events)); and (i) all Indebtedness of another Person secured by any Lien
on Property owned by such Person, even though such Person has not assumed or
become liable for the payment of such Indebtedness or other payment obligation.
For the avoidance of doubt, Indebtedness shall not include premiums required by
FAS 141 as a result of the assumption of Indebtedness bearing an interest rate
that was above market interest rates at the time of assumption.
"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 Coverage Ratio" means, as of any date of determination, the
ratio of (a) Adjusted EBITDA to (b) Interest Expense.
"Interest Expense" means, with respect to the Consolidated Group and
measured as of the last day of the most recent Fiscal Quarter for which
financial results have been reported, the sum of (a) all interest of the
Consolidated Group (whether accrued or paid, without duplication) for such
Fiscal Quarter, excluding any non-cash interest expense, but including any
capitalized interest not funded from the proceeds of a construction loan, plus
(b) the portion of rent paid or payable by the Consolidated Group (without
duplication) for such Fiscal Quarter under Capital Lease Obligations that should
be treated as interest in accordance with Financial Accounting Standards Board
Statement No. 13, plus (c) the Consolidated Group Pro Rata Share of any interest
expense of the type described in clause (a) and clause (b) above of each
Investment Affiliate for such Fiscal Quarter.
"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 Cash Equivalents or
has been converted into cash or Cash Equivalents), without adjustment for
subsequent increases or decreases in the value of such Investment.
"Investment Affiliate" means any Person in which the Consolidated Group,
directly or indirectly, has either a controlling interest or a ten percent (10%)
or greater ownership interest, whose financial results, in either case, are not
consolidated under GAAP with the financial results of the Consolidated Group.
"Joinder Agreement" means the joinder agreement with respect to the
Guaranty to be executed and delivered pursuant to Section 2A.2 by any additional
Subsidiary Guarantor in the form of Exhibit C-3 (with such changes thereto as
the Administrative Agent shall in its discretion
- 12 -
reasonably require) either as originally executed or as it may from time to time
be supplemented, modified, amended, extended or supplanted.
"KOP Project" means that certain Project currently owned by a member of
the Consolidated Group (sometimes referred to by the Parties as the "King of
Prussia Project") and located in Philadelphia, Pennsylvania.
"Laws" means, collectively, all international, foreign, federal, state and
local statutes, treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents.
"Lead Arranger" means KeyBank.
"Lender" means each lender 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 11.8.
"Leverage Ratio" means, as of any day, (a) Consolidated Outstanding
Indebtedness as of such date, divided by (b) Gross Asset Value, as of such date,
expressed as a percentage.
"LIBOR Base Rate" means, with respect to a LIBOR Rate Advance for the
relevant LIBOR Period, the applicable British Bankers' Association LIBOR rate
for deposits in Dollars as reported by any generally recognized financial
information service as of 11:00 a.m. (London time) two Banking Days prior to the
first day of such LIBOR Period, and having a maturity equal to such LIBOR
Period, provided that, if no such British Bankers' Association LIBOR rate is
available to the Administrative Agent, the applicable LIBOR Base Rate for the
relevant LIBOR Period shall instead be the rate determined by the Administrative
Agent to be the rate at which KeyBank or one of its Affiliate banks offers to
place deposits in Dollars with first class banks in the London interbank market
at approximately 11:00 a.m. (London time) two Banking Days prior to the first
day of such LIBOR Period, in the approximate amount of the relevant LIBOR Rate
Advance and having a maturity equal to such LIBOR Period.
"LIBOR Lending Office" means, as to each Lender, its office or branch so
designated by written notice to Borrower and the Administrative Agent as its
LIBOR Lending Office. If no LIBOR Lending Office is designated by a Lender, 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 Borrower pursuant to Section 2.1(d) and ending 1, 2, 3 or
6 months (or, with the written consent of all of the Lenders, any other period)
thereafter, as specified by Borrower in the applicable Request for Loan;
provided that:
(a) the first day of any LIBOR Period shall be a Banking Day;
(b) any LIBOR Period that would otherwise end on a day that is not a
Banking Day shall be extended to the next succeeding Banking Day unless such
Banking Day falls in another calendar month, in which case such LIBOR Period
shall end on the next preceding Banking Day;
- 13 -
(c) any LIBOR Period which begins on a day for which there is no
numerically corresponding date in the calendar month in which such LIBOR Period
would otherwise end shall instead end on the last Banking Day of such calendar
month; and
(d) no LIBOR Period shall extend beyond the Maturity Date.
"LIBOR Rate" means, as of any date during any LIBOR Period, the sum of (A)
the LIBOR Base Rate applicable to such LIBOR Period divided by one minus the
then-current Reserve Percentage and (B) the Applicable Margin with respect to
LIBOR Rate Loans.
"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.
"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.
"Loan" means either of the two (2) advances made or to be made by the
Lenders to Borrower as provided in Section 2.1, and thereafter shall mean each
Alternate Base Rate Loan and LIBOR Rate Loan that is a continuation or
conversion of either such advance as determined pursuant to Article 2.
"Loan Commitment" means Two Hundred Fifty Million Dollars ($250,000,000).
The respective Percentages of the Lenders with respect to the Loan Commitment
are set forth in Schedule 1.1.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Guaranties and each Joinder Agreement, the Security Documents, the
Acknowledgements and any other agreements of any type or nature hereafter
executed and delivered by Borrower or Guarantors to the Administrative Agent or
to any Lender 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.
"Loan Parties" means, collectively, as of any date, Borrower, the
Guarantors and the Assignors.
- 14 -
"Lockout Period" means the period from the Agreement Effective Date
through May 30, 2006, which is the day immediately preceding the first
anniversary of the Agreement Effective Date.
"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 the Consolidated Group 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 Collateral, the Subject Properties or
the validity or enforceability of any Loan Document (other than as a result of
any action or inaction of the Administrative Agent or any Lender), or (ii) has
materially impaired or would reasonably be expected to materially impair the
ability of the Loan Parties to perform the Obligations.
"Maturity Date" means May 30, 2010.
"Monthly Payment Date" means the first day of each calendar month.
"Moody's" means Xxxxx'x Investor Service, Inc. and its successors.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA to which one or more members of the Consolidated
Group or any of their ERISA Affiliates contribute or are obligated to
contribute.
"Negative Pledge" means a Contractual Obligation (other than the Loan
Documents and the documents executed in connection with the Unsecured Credit
Agreement) that contains a covenant binding on any owner of a Project that
prohibits Liens on any of such owner's Projects, other than any such covenant
contained in a Contractual Obligation (other than the Loan Documents and the
documents executed in connection with the Unsecured Credit Agreement) granting
or relating to a particular Lien on a Project which prohibits further Liens on
such Project and on the direct or indirect ownership interests in the entity
owning such Project.
"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 Projects during such fiscal period, excluding (i) any non-recurring capital
expenditures made to update or enhance building infrastructure or building
systems on such Projects, (ii) expenditures for tenant improvements or
allowances made or given to induce such tenant to lease such Person's Property
and (iii) expenditures directly recoverable from tenants of such Person's
Property promptly after such expenditures have been incurred.
"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 Project, the floor area of
any buildings, structures or improvements available for leasing to tenants
(excluding storage lockers and parking
- 15 -
spaces), as reasonably determined by the Administrative Agent, the manner of
such determination to be consistent for all Projects unless otherwise approved
by the Administrative Agent.
"Net Worth " means, as of any day, (a) Gross Asset Value as of such date,
minus (b) Consolidated Outstanding Indebtedness as of such date.
"New Tenant" means, with respect to any Income-Producing Project for any
Fiscal Quarter, a tenant of such Project which first took occupancy of its
premises at such Project and commenced paying rent at any time during the period
from the second day of such Fiscal Quarter through and including the thirtieth
(30th) day after the end of such Fiscal Quarter.
"NOI" means, with respect to any Project for any applicable Fiscal
Quarter, the sum of (i) actual rental income for such Fiscal Quarter
attributable to Continuing Tenants and New Tenants; (ii) with respect to any New
Tenant, an imputed amount of net rental income for those days during such Fiscal
Quarter during which such New Tenant was not in occupancy and paying rent based
on the per diem net rental income being paid by such New Tenant as of the
commencement of its obligation to pay rent on its lease; (iii) all actual
expense reimbursements received from such tenants for such Fiscal Quarter; and
(iv) all actual other income for such Fiscal Quarter less (A) actual operating
expenses for such Fiscal Quarter (excluding from operating expenses, any
allocation of general and administrative expenses related to the operations of
the Consolidated Group and its Investment Affiliates), (B) actual management
fees payable with respect to such Project for such Fiscal Quarter and (C) any
actual or imputed rental income for such Fiscal Quarter attributable to Excluded
Tenants, provided, however, that in the case of any such Project owned by an
Investment Affiliate, only the Consolidated Group Pro Rata Share of the
foregoing amount attributable to such Project shall be included in "NOI".
"Non-Recourse Indebtedness" means Indebtedness for which the liability of
the obligor thereunder (except with respect to fraud, Hazardous Materials Laws
liability and other customary non-recourse "carve-out" exceptions) either is
contractually limited to collateral securing such Indebtedness or is so limited
by operation of Law.
"Note" means any of the promissory notes made by Borrower to a Lender
evidencing Loans made under that Lender's Percentage of the Loan 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.
"Obligations" means all present and future obligations of every kind or
nature of the Loan Parties at any time and from time to time owed to the
Administrative Agent or the Lenders 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 any member of the Consolidated Group.
"Opinions of Counsel" means the favorable written legal opinions of Xxxxxx
& Xxxxxxx LLP and Xxxxxxx LLP, counsel to Borrower, in form and substance
reasonably satisfactory to the Administrative Agent.
- 16 -
"Outside Funding Date" means July 30, 2005.
"Outstanding Loan Amount" means, as of any date, the aggregate of all
Advances outstanding on such date.
"Parent" means BioMed Realty Trust, Inc., a Maryland corporation.
"Party" means any Person other than the Administrative Agent and the
Lenders, which now or hereafter is a party to any of the Loan Documents.
"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 the Consolidated Group is
maintained by a member of the Consolidated Group or to which a member of the
Consolidated Group contributes or has an obligation to contribute.
"Percentage" means, with respect to each Lender, the percentage derived by
dividing that Lender's Commitment by the aggregate Loan Commitment, which shall
initially be as set forth opposite the name of that Lender on Schedule 1.1, as
such percentage may be increased or decreased pursuant to a Commitments
Assignment and Acceptance executed in accordance with Section 11.8.
"Permitted Business Activities" means the acquisition, development,
renovation, ownership, leasing, sale and operation of Life Sciences Buildings
(including Unstabilized Projects that will be used as Life Sciences Buildings
following completion of development) plus free-standing parking garages that
serve such Life Sciences Buildings, in the case of the 47 Erie Parking Garage in
Cambridge, Massachusetts and any such parking garage that may be acquired as
part of a future acquisition of Life Sciences Buildings, so long as Borrower has
obtained the prior written approval of the Administrative Agent to the inclusion
of such garage, such approval not to be unreasonably withheld, conditioned or
delayed.
"Permitted Liens" is defined in Section 6.14.
"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, as of any date with respect to any
Person, the Distributions due and payable to the holders of Preferred Equity in
such Person for the most recent Fiscal Quarter for which financial results have
been reported.
"Preferred Equity" means, with respect to any Person, any form of
preferred stock (whether perpetual, convertible or otherwise) or other ownership
or beneficial interest in such Person 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.
- 17 -
"Prime Rate" means a rate per annum equal to the prime rate of interest
publicly announced from time to time by KeyBank or its parent as its prime rate
(which is not necessarily the lowest rate charged to any customer), changing
when and as said prime rate changes. In the event that there is a successor to
the Administrative Agent by merger, or the Administrative Agent assigns its
duties and obligations to an Affiliate, then the term "Prime Rate" as used in
this Agreement shall mean the prime rate, base rate or other analogous rate of
the new Administrative Agent.
"Pro Forma Subject Properties Leverage Ratio" is defined in Section 2A.3.
"Project" means any parcel of real property located in the 48 states that
comprise the continental United States of America or in the District of Columbia
which is owned, leased or operated (in each case in whole or in part) by
Borrower, or any of its Subsidiaries or Investment Affiliates and which is
either (i) improved with completed Life Sciences Buildings or (ii) held for the
development of Life Sciences Buildings, or (iii) a free-standing parking garage
serving such Life Sciences Buildings in the case of the 47 Erie Parking Garage
in Cambridge, Massachusetts, and any other parking garages acquired hereafter
with the prior approval of the Administrative Agent, as provided above.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Qualified Subsidiary Property" means, as of any date, each
Income-Producing Project (i) which continues to meet all of the requirements for
qualification as a "Subject Property" pursuant to the definition of such term
and (ii) with respect to which all applicable Subsidiary Guaranties,
Acknowledgments and other Security Documents have been executed and delivered
and all conditions set forth in Section 2A.2 that were satisfied with respect to
such Subject Property when added (or in the case of the Initial Subsidiary
Properties, were deemed to have been satisfied as of the Agreement Effective
Date) have been and continue as of such date to be, satisfied.
"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 Facilities" is defined in Section 6.12.
"Related Facilities Guarantors" means, collectively, those Wholly-Owned
Subsidiaries of Borrower which now or hereafter are a "Guarantor" under the
Related Facilities.
"Related Fund" means, with respect to any Lender that is an investment
fund, any other investment fund that invests in commercial loans and that is
managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Request for Loan" means a written request for a Advance, either the
initial funding thereof or any conversion or continuation thereof, substantially
in the form of Exhibit E, signed by a Senior
- 18 -
Officer of Borrower, 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 Lenders" means (a) as of any date of determination prior to the
Outside Funding Date, Lenders having in the aggregate Commitments for 66-2/3% or
more of the Loan Commitment and (b) as of any date of determination on or after
the Outside Funding Date, Lenders holding Notes evidencing in the aggregate
66-2/3% or more of the Outstanding Loan Amount.
"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 against
"Eurocurrency Liabilities" (as that term is used in Regulation D), 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 Lenders 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.
"S&P" means Standard & Poor's Rating Group or its successors.
"Secured Indebtedness" means any Indebtedness of a Person that is secured
by a Lien on a Project or on any ownership interests in any other Person or on
any other assets, provided that the portion of such Indebtedness included in
"Secured Indebtedness" shall not exceed the aggregate value of the assets
securing such Indebtedness at the time such Indebtedness was incurred.
"Security Documents" means the Assignments of Interests (and each
Assignment of Interests subsequently delivered pursuant to this Agreement), the
Account Agreement and any further collateral assignments to the Administrative
Agent for the benefit of the Lenders, including, without limitation, any UCC-1
financing statements delivered or authorized to be filed by the Administrative
Agent in connection therewith.
- 19 -
"Senior Officer" means (a) the chief executive officer, (b) the chairman,
(c) the chief financial officer or (d) the executive vice president, of any of
the members of the Consolidated Group 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 Lender 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.
"Stabilization" means, as of any date with respect to any Project, that
such Project either (i) has been substantially completed one (1) year or more
prior to such date or (ii) has, as of such date, tenants in occupancy of
eighty-five percent (85%) or more of the Net Rentable Area thereof, each of
which is either paying rent or is obligated to begin paying rent not later than
ninety (90) days after the commencement date of such tenant's lease.
"Subject Properties" means, collectively, as of any date, (a) those
Income-Producing Projects set forth on Schedule 1.3 hereto and (b) all other
Projects that become a Subject Property after the date hereof pursuant to
Section 2A.2.
"Subject Property Indebtedness" means any Indebtedness in respect of
borrowed money secured by a Lien encumbering a Subject Property.
"Subject Properties Leverage Ratio" means, as of any date, (A) the sum of
(i) the then-current outstanding principal balance of all Subject Property
Indebtedness plus (ii) the then-current Outstanding Loan Amount divided by (B)
the Aggregate Subject Properties Value, expressed as a percentage.
"Subject Property Loan Documents" means the agreements, documents and
instruments evidencing, securing or otherwise relating to the Subject Property
Indebtedness to which the holder of such Subject Property Indebtedness is a
party or intended beneficiary.
"Subject Property Owners" means, as of any day, the members of the
Consolidated Group that own fee simple title to Subject Properties (including
those Projects that become Subject Properties after the Agreement Effective Date
pursuant to Section 2A.2).
"Subject Property Sale" means the sale, transfer or conveyance of all or
any portion of a Subject Property by a Subject Property Owner (or the sale,
transfer or conveyance of all or any portion of the direct or indirect equity
interests in such Subject Property Owner).
"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
- 20 -
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.
"Subsidiary Guaranty" means the guaranty to be executed and delivered by
certain Subsidiaries of Borrower, substantially in the form of Exhibit C-2, as
the same may be amended, supplemented or otherwise modified from time to time,
including without limitation by all Joinder Agreements executed by any
additional Subsidiary Guarantors.
"Swap Agreement" means a written agreement between Borrower and one or
more financial institutions, including without limitation, KeyBank, providing
for "swap", "cap", "collar" or other interest rate protection with respect to
any Indebtedness.
"Target Subject Properties Leverage Ratio" means 75%.
"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).
"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 Liens which do not secure
Indebtedness, (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.
"Unsecured Credit Agreement" means that certain Unsecured Credit Agreement
of even date herewith by and among the Borrower, KeyBank and certain other
lenders identified therein, as it may be amended or modified from time to time.
"Unstabilized Project" means, as of any date, a Project that either is
currently under construction or has been recently completed (as to its initial
construction) but has not yet reached Stabilization. Once a Project has reached
Stabilization, whether by passage of time or leasing and occupancy, it shall not
thereafter qualify as an Unstabilized Project.
"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.
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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 Sections 6.5 through 6.13, inclusive, would then
be calculated in a different manner or with different components, (a) Borrower
and the Lenders agree to amend this Agreement in such respects as are necessary
to conform those covenants as criteria for evaluating Borrower's financial
condition to substantially the same criteria as were effective prior to such
change in Generally Accepted Accounting Principles and (b) Borrower shall be
deemed to be in compliance with the covenants contained in the aforesaid
Sections if and to the extent that Borrower 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
Lenders, 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.
1.5 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 Loans General.
(a) Subject to the terms and conditions set forth in this Agreement,
on the Closing Date and not more than one (1) other date on or before the
Outside Funding Date, the Lenders shall, pro rata according to each Lender's
Percentage, make a Loan to Borrower in such amount as Borrower may request that
does not result in the aggregate principal amount advanced under the Notes
(after giving effect to all amounts requested thereunder) being in excess of the
Loan Commitment, 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 or waived. Borrower may not reborrow any Advances once
repaid.
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(b) The obligation of each Lender to make Advances in accordance
with its Commitment is several, and not joint and several; and no Lender shall
be obligated to advance more than its Commitment, notwithstanding the default of
any other Lender.
(c) Each Loan shall be made pursuant to a Request for Loan which
shall specify the requested (i) date of such Loan (which must be a Banking Day),
(ii) type of Loan, (iii) amount of such Loan, (iv) wiring instructions for such
Loan, and (v) in the case of a LIBOR Rate Loan, the LIBOR Period for such Loan.
(d) Promptly following receipt of a Request for Loan, the
Administrative Agent shall (by the end of business on the same day that the
request was received) notify each Lender of the date and type of the Loan, the
applicable LIBOR Period, and that Lender's Percentage of the Loan. Not later
than 1:00 p.m., Cleveland time, on the date specified for any Loan (which must
be a Banking Day), each Lender shall make its Percentage 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 wire transferred on
that date in immediately available funds to the account or accounts designated
in the wiring instructions included in such Request for Loan.
(e) Unless the Requisite Lenders otherwise consent, each Alternate
Base Rate Loan shall be not less than $1,000,000, each LIBOR Rate Loan shall be
not less than $1,000,000 and all Loans shall be in an integral multiple of
$250,000.
(f) The Advances made by each Lender under the Loan Commitment shall
be evidenced by that Lender's Note.
(g) If no Request for Loan has been made within the requisite notice
periods set forth in Section 2.2 or 2.3 prior to the end of the LIBOR Period for
any LIBOR Rate Loan, then on the last day of such LIBOR 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 Borrower for an Alternate
Base Rate Loan shall be made pursuant to a Request for Loan received by the
Administrative Agent, at the Administrative Agent's Office, not later than 1:00
p.m., Cleveland time, on the Banking Day immediately 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 Borrower for a LIBOR Rate Loan shall be made
pursuant to a Request for Loan received by the Administrative Agent, at the
Administrative Agent's Office, not later than 1:00 p.m., Cleveland time, at
least three (3) Banking Days before the first day of the applicable LIBOR
Period.
(b) On the date which is two (2) Banking Days before the first day
of the applicable LIBOR Period, the Administrative Agent shall confirm its
determination of the applicable
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LIBOR Rate (which determination shall be conclusive in the absence of manifest
error) and promptly shall give notice of the same to Borrower and the Lenders.
(c) Unless the Administrative Agent and the Requisite Lenders
otherwise consent, there shall be no more than six (6) LIBOR Periods in effect
at any one time.
(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 Lender to fund any
LIBOR Rate Advance in the London interbank market.
2.4 Administrative Agent's Right to Assume Funds Available for Loans.
Unless the Administrative Agent shall have been notified by any Lender no later
than 1:00 p.m., Cleveland time on the Banking Day of the proposed funding by the
Administrative Agent of any Loan that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of the total amount
of such Loan, the Administrative Agent may assume that such Lender 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
Borrower a corresponding amount. If the Administrative Agent has made funds
available to Borrower based on such assumption and such corresponding amount is
not in fact made available to the Administrative Agent by such Lender, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender plus an administrative fee of $200. If such Lender does
not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent promptly shall notify Borrower and
Borrower shall pay such corresponding amount (but not the administrative fee) to
the Administrative Agent. The Administrative Agent also shall be entitled to
recover from such Lender 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 Borrower to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to (i) from
such Lender, the daily Federal Funds Effective Rate or (ii) from Borrower, at
the applicable rate for such Loan. Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its Commitment or to prejudice any rights
which the Administrative Agent or Borrower may have against any Lender as a
result of any default by such Lender hereunder.
ARTICLE 2A
COLLATERAL; SUBJECT PROPERTIES.
2A.1 Collateral. The obligations of Borrower under the Loan Documents
shall be secured by a perfected first priority security interest to be held by
the Administrative Agent for the benefit of the Lenders in the Collateral,
including the initial Collateral with respect to the Subject Properties set
forth on Schedule 1.3 and such additional Collateral with respect to additional
Subject Properties, as described below, as shall be evidenced from time to time
by the Security Documents.
2A.2 Addition of Subject Properties. For so long as the Subject
Properties Leverage Ratio exceeds the Target Subject Properties Leverage Ratio,
not less than ten (10) Banking Days prior to
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the date on which (a) Borrower expects to acquire a Project that will be
encumbered by Subject Property Loan Documents, whether directly or indirectly
through a Subsidiary, or (b) a Project owned by Borrower or any of its
Subsidiaries on an Unencumbered basis is to become encumbered by Subject
Property Loan Documents, Borrower shall (1) notify the Administrative Agent
thereof in writing and (2) provide the Subject Property Loan Documents in
respect thereof. The Administrative Agent shall have five (5) Banking Days after
it receives notice thereof to notify Borrower in writing whether such Project
shall become a Subject Property. For the Projects described in clause (a) above,
Borrower shall provide the Administrative Agent all documents and information
reasonably requested by the Administrative Agent in respect of the Project. If
the Administrative Agent timely notifies Borrower that such Project shall become
a Subject Property, not later than two (2) Banking Days after the date on which
such Project is so acquired or so encumbered by Subject Property Loan Documents,
Borrower shall (i) cause the applicable Subsidiary owing such Project to execute
and deliver a Joinder Agreement with respect to the Subsidiary Guaranty, to the
extent permitted under the applicable Subject Property Loan Documents, (ii)
execute and deliver, and shall cause applicable Subsidiary (and all intervening
Subsidiaries owning, directly or indirectly, Equity Interests in such applicable
Subsidiary) to execute and deliver, as applicable, to the Administrative Agent
all instruments, documents, or agreements, including an Assignment of Interests
in substantially the same form as the Assignment of Interests delivered to the
Administrative Agent on the Agreement Effective Date, Acknowledgments in
substantially the same form as the Acknowledgments delivered to the
Administrative Agent on the Agreement Effective Date and UCC-1 financing
statements and membership, partnership and stock certificates and blank transfer
powers, as the Administrative Agent shall deem reasonably necessary or desirable
to obtain and perfect a first priority security interest in, or Lien on, the
Equity Interests in the applicable Subsidiary, and the other Collateral with
respect thereto as described in the Assignment of Interests (such other
Collateral to consist of similar Collateral as was included in the Assignment of
Interests delivered concurrently herewith), in each case to the extent permitted
by the applicable Subject Property Loan Documents, and (iii) provide the
Administrative Agent a Certificate setting forth the projected Subject
Properties Leverage Ratio that gives effect to the inclusion of the applicable
Subject Property. Notwithstanding anything herein to the contrary, and for the
avoidance of doubt, if on any date after the Agreement Effective Date, the
Subject Properties Leverage Ratio falls below 75%, Borrower and its Subsidiaries
shall thereafter not be obligated to make any additional Projects "Subject
Properties" under this Section 2A.2, even if the Subject Properties Leverage
Ratio subsequently exceeds 75% as a result of a subsequent reduction in the
Aggregate Subject Properties Value. Nothing in this Section 2A.2 shall limit the
obligation of Borrower to cause the Subject Properties Leverage Ratio to be at
or below the Target Subject Properties Leverage Ratio upon any sale or refinance
of a Subject Property as described in Section 2A.3 and Section 2A.4.
2A.3 Sale of a Subject Property. Provided that the Lockout Period has
expired and no Default or Event of Default shall have occurred hereunder or
under the other Loan Documents and be continuing (or would exist immediately
after giving effect to the transactions contemplated by this Section 2A.3), a
Subject Property Owner (or Borrower or another applicable Subsidiary) may engage
in a Subject Property Sale upon the following terms and conditions:
(a) Borrower shall deliver to the Administrative Agent written
notice of the desire to consummate such Subject Property Sale on or
before the date that is ten
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(10) Banking Days prior to the date on which the Subject Property
Sale is to be effected;
(b) On or before the date that is five (5) Banking Days prior
to the date of the Subject Property Sale is to be effected, Borrower
shall submit to the Administrative Agent a Certificate, which shall
be subject to the Administrative Agent's review and reasonable
approval, setting forth the Subject Properties Leverage Ratio on a
pro forma basis as of the date of the Subject Property Sale giving
effect to (in addition to other changes to the Subject Properties
Leverage Ratio during the intervening period (e.g., any reductions
to the outstanding principal balance of the Subject Property
Indebtedness)): (A) the Subject Property Sale and (B) any other
Projects that became or are becoming a Subject Property prior to the
date of the Subject Property Sale (the "Pro Forma Subject Properties
Leverage Ratio");
(c) If the Pro Forma Subject Properties Leverage Ratio exceeds
the Target Subject Properties Leverage Ratio, Borrower shall,
concurrently or before the closing of the Subject Property Sale, pay
to the Administrative Agent for the account of the Lenders, which
payment shall be applied to reduce the Outstanding Loan Amount, an
amount equal to the lesser of (i) the amount necessary to make the
Pro Forma Subject Properties Leverage Ratio no greater than the
Target Subject Properties Leverage Ratio or (ii) the net proceeds of
the Subject Property Sale; and
(d) Upon the occurrence of the Subject Property Sale, the
underlying Project shall no longer be a Subject Property, and the
Administrative Agent shall execute such documents or instruments and
take all other actions necessary or advisable on behalf of the
Lenders to release the related security interests (including without
limitation releases of any pledged Equity Interests) evidenced by
any Security Documents and to release the related Subsidiary
Guarantor(s), if applicable, from any obligations under the
Subsidiary Guaranty.
2A.4 Refinance of a Subject Property. Provided that no Default or Event
of Default shall have occurred hereunder or under the other Loan Documents and
be continuing, Borrower or any Subject Property Owner may refinance a Subject
Property upon the following terms and conditions:
(a) Borrower shall deliver to the Administrative Agent written
notice of the desire to consummate such refinance on or before the
date that is ten (10) Banking Days prior to the date on which such
refinance is to be effected;
(b) If (i) as of the date of the refinance the Subject
Properties Leverage Ratio exceeds the Target Subject Properties
Leverage Ratio, and (ii) the amount proposed to be borrowed under
the refinancing arrangement exceeds the outstanding principal
balance of the Subject Property Indebtedness being refinanced, plus
customary closing costs and fees, then (A) if such refinance is
occurring prior to the expiration of the Lockout Period, Borrower
shall not be permitted to borrow any such excess or (B) if the
Lockout Period has expired, such excess amount shall be
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paid over to the Administrative Agent for the account of the
Lenders, which payment shall be applied to reduce the Outstanding
Loan Amount.
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 on LIBOR Rate
Loans shall be computed on a 360 day year, and actual days elapsed. Interest on
Alternate Base Rate Loans shall be computed on a 365 or 366 day year, as
applicable, and actual days elapsed.
(b) Interest accrued on each Alternate Base Rate Loan shall be due
and payable on each Monthly Payment Date or at maturity, whether by acceleration
or otherwise. Except as otherwise provided in Section 3.6, 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 or at maturity, whether by acceleration or
otherwise. Except as otherwise provided in Section 3.6, the unpaid principal
amount of any LIBOR Rate Loan shall bear interest at a rate per annum equal to
the LIBOR Rate for the applicable LIBOR Period.
(d) If not sooner paid, the principal Indebtedness evidenced by the
Notes shall be payable on the Maturity Date.
(e) The Notes may, at any time after expiration of the Lockout
Period and from time to time thereafter, 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 noon, Cleveland 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 LIBOR Period shall
be subject to Section 3.5(d) and (iv) upon any partial prepayment of a LIBOR
Rate Loan that reduces it below $1,000,000, the remaining portion thereof shall
automatically convert to an Alternate Base Rate Loan.
(f) To the extent that any sale of all or a portion of a Subject
Property (or a sale of all or a portion of any equity interest in a Subsidiary
owning any such Subject Property) or a
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refinancing of the Subject Property Indebtedness on such Subject Property occurs
as permitted by Section 2A.3, the Borrower shall make the principal payment on
the Notes required thereunder.
3.2 Other Fees. Borrower shall pay to KeyBank each of the other fees
specified in the Fee Letter as and when due in accordance therewith.
3.3 [Intentionally Omitted].
3.4 Increased Commitment Costs. If any Lender shall determine in good
faith that the introduction after the Closing Date of any applicable Law 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 Lender (or its LIBOR Lending Office) or any corporation
controlling such Lender, 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 Lender'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 Lender or any
corporation controlling such Lender and (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy and such
Lender'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 Lender, Borrower shall pay to such Lender,
from time to time as specified in good faith by such Lender, additional amounts
sufficient to compensate such Lender in light of such circumstances, to the
extent reasonably allocable to such obligations under this Agreement, provided
that Borrower shall not be obligated to pay any such amount which arose prior to
the date which is one hundred eighty (180) days preceding the date of such
demand or is attributable to periods prior to the date which is one hundred
eighty (180) days preceding the date of such demand. Each Lender's determination
of such amounts shall be conclusive in the absence of manifest error.
3.5 LIBOR Costs and Related Matters.
(a) If, after the date hereof, the existence or occurrence of any
Special LIBOR Circumstance:
(i) shall subject any Lender 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 Lender
attributable to the principal of or 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
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provide Borrower 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 Lender or its LIBOR Lending Office);
or
(iii) shall impose on any Lender 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
Lender, increases the cost to such Lender 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
Lender 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 Lender (with a
copy to the Administrative Agent), Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduction (determined as though such Lender'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, Borrower shall not be obligated to
pay any such amount which arose prior to the date which is one hundred eighty
(180) days preceding the date of such demand or is attributable to periods prior
to the date which is one hundred eighty (180) days preceding the date of such
demand. A statement of any Lender claiming compensation under this subsection
shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any
Special LIBOR Circumstance shall, in the good faith opinion of any Lender, make
it unlawful or impossible for such Lender or its LIBOR Lending Office to make,
maintain or fund its portion of any LIBOR Rate Loan, or materially restrict the
authority of such Lender 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 Lender shall so notify the Administrative Agent, then
such Lender'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 Lenders and Borrower. Upon
receipt of such notice, the outstanding principal amount of such Lender'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 Lender may
lawfully continue to maintain and fund such LIBOR Rate Advances to such day(s)
or (2) immediately if such Lender 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 Lender agrees to endeavor promptly to notify Borrower of any event
of which it has actual knowledge, occurring after the Closing Date,
- 29 -
which will cause that Lender 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 Lender, otherwise be materially disadvantageous to such Lender.
In the event that any Lender 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 Lender 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 Lender whose obligation to
make LIBOR Rate Advances has been suspended under this Section shall promptly
notify the Administrative Agent and Borrower of the cessation of the Special
LIBOR Circumstance which gave rise to such suspension.
(c) 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 Lenders, deposits in Dollars (in the
applicable amounts) are not being offered to any Lender in the London interbank
market for the applicable LIBOR Period; or
(ii) the Requisite Lenders advise the Administrative Agent
that the LIBOR Rate as determined by the Administrative Agent (i) does not
represent the effective pricing to such Lenders 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 Lenders of
making the applicable LIBOR Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to Borrower
and the Lenders, whereupon until the Administrative Agent notifies Borrower that
the circumstances giving rise to such suspension no longer exist, the obligation
of the Lenders to make any future LIBOR Rate Advances shall be suspended.
(d) Except for a failure caused by any Lender's default, Borrower
shall indemnify the Lenders against any loss or expense that the Lenders 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 Borrower to make any payment when due of any amount due
hereunder, (ii) any failure of Borrower to borrow, continue or convert a LIBOR
Rate Loan 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 $200 or the financial
loss incurred by the Lenders resulting from prepayment or failure to borrow,
calculated by the Administrative Agent as
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the difference between the amount of interest the Lenders 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 Lenders 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. Borrower agrees 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 Lenders, including negotiable certificates of deposit, commercial
paper, Eurodollar deposits, bank notes, federal funds and others. The
Administrative Agent shall provide to Borrower a statement, signed by an officer
of the 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
Borrower.
(e) Each Lender agrees to endeavor promptly to notify Borrower of
any event of which it has actual knowledge, occurring after the Closing Date,
which will entitle such Lender to compensation pursuant to this Section 3.5, 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 Lender, otherwise be materially disadvantageous
to such Lender. Any request for compensation by a Lender under this Section 3.5
shall set forth the basis upon which it has been determined that such an amount
is due from Borrower, a calculation of the amount due, and a certification that
the corresponding costs have been incurred by the Lender.
3.6 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 Lender 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 3% and (ii) in the case of any other
amount, the sum of the Alternate Base Rate plus 3%, 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, Borrower 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.
3.7 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, except that interest at the Alternate Base
Rate shall be calculated on the basis of a 365 or 366 day year, as applicable.
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.
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3.8 Non Banking Days. If any payment to be made by Borrower 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.
3.9 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments pursuant to Sections
3.4, 3.5, 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 Lenders or the Administrative Agent, as
the case may be, in immediately available funds not later than 2:00 p.m.,
Cleveland 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 Lender shall be immediately paid by
the Administrative Agent to the applicable Lender in immediately available funds
and, if such payment was received by the Administrative Agent by 2:00 p.m.,
Cleveland time, on a Banking Day and not so made available to the account of a
Lender on that Banking Day, the Administrative Agent shall reimburse that Lender
for the cost to such Lender of funding the amount of such payment at the Federal
Funds Effective Rate. All payments shall be made in Dollars.
(b) Each payment or prepayment shall be applied first to Alternate
Base Rate Loans and then to LIBOR Rate Loans. Each payment or prepayment on
account of any such Alternate Base Rate Loan or LIBOR Rate Loan shall be applied
pro rata according to the outstanding Advances made by each Lender comprising
such Loan.
(c) Each Lender shall 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 Borrower, be presumptive evidence of the amounts owing, absent
manifest error. Notwithstanding the foregoing sentence, the failure by any
Lender to keep such a record shall not affect Borrower's obligation to pay the
Obligations.
(d) Each payment of any amount payable by Borrower 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 Lender'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 Lender
is organized or maintains its principal office or LIBOR Lending Office or (B)
any jurisdiction (or political subdivision thereof) in which such Lender 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 Lender has failed, for whatever reason, timely to provide Borrower
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 Borrower is obligated by applicable
Laws to make any deduction or withholding on
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account of Taxes from any amount payable to any Lender under this Agreement,
Borrower shall (i) make such deduction or withholding and pay the same to the
relevant Governmental Agency and (ii) pay such additional amount to that Lender
as is necessary to result in that Lender's receiving a net after Tax amount
equal to the amount to which that Lender would have been entitled under this
Agreement absent such deduction or withholding.
3.10 Funding Sources. Nothing in this Agreement shall be deemed to
obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner.
3.11 Failure to Charge Not Subsequent Waiver. Any decision by the
Administrative Agent or any Lender not to require payment of any interest
(including interest arising under Section 3.6), 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 Lender's right to require full payment of
any interest (including interest arising under Section 3.6), 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.
3.12 Administrative Agent's Right to Assume Payments Will be Made by
Borrower. Unless the Administrative Agent shall have been notified by Borrower
prior to the date on which any payment to be made by Borrower hereunder is due
that Borrower does not intend to remit such payment, the Administrative Agent
may, in its discretion, assume that Borrower has remitted such payment when so
due and the Administrative Agent may, in its discretion and in reliance upon
such assumption, make available to each Lender on such payment date an amount
equal to such Lender's share of such assumed payment. If Borrower has not in
fact remitted such payment to the Administrative Agent, each Lender shall
forthwith on demand repay to the Administrative Agent the amount of such assumed
payment made available to such Lender, together with interest thereon in respect
of each day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the
Administrative Agent at the Federal Funds Effective Rate.
3.13 Calculations Detail. The Administrative Agent, and any Lender, shall
provide reasonable detail to Borrower regarding the manner in which the amount
of any payment to the Administrative Agent and the Lenders, or that Lender,
under Article 3 has been determined, within a reasonable period of time after
request by Borrower.
3.14 Survivability. The provisions of Sections 3.4 and 3.5 shall survive
following the date on which the Commitments are terminated and all Loans
hereunder are fully paid, and Borrower shall remain obligated thereunder for all
claims under such Sections made by any Lender to Borrower.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Lenders 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. Borrower is a limited partnership, duly formed, validly existing
and in good standing under the Laws of Maryland, and each Guarantor is a
corporation, limited partnership, limited liability company or trust duly
formed, validly existing and in good standing under the Laws of its state of
formation. Each of the Loan Parties 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 the Loan Parties 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 nonassessable, and no holder thereof has any enforceable
right of rescission under any applicable state or federal securities Laws. Each
of the Loan Parties 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, 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 the
Loan Parties 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 the Loan Parties;
(b) Violate or conflict with any provision of any Loan Party's
charter, articles of incorporation, bylaws or other organizational agreements,
as applicable;
(c) Result in or require the creation or imposition of any Lien upon
or with respect to any Property now owned or leased or hereafter acquired by the
Loan Parties;
(d) Violate in any material respect any material Requirement of Law
applicable to the Loan Parties; or
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(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 the Loan Parties
are a party or by which the Loan Parties or any of their Property is bound or
affected;
and none of the Loan Parties 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 Borrower has 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 the Loan Parties 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 nonassessable, and were issued in
compliance with all applicable state and federal securities and other Laws, and
are free and clear of all Liens, except for Permitted Liens.
4.5 Financial Statements. All financial statements and other information
previously delivered to the Administrative Agent by Borrower 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. The Loan Parties
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. The Loan Parties 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 Borrower,
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.
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4.9 Public Utility Holding Company Act. None of the Loan Parties is a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the 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 $5,000,000 (or, in each case in which this representation and warranty
is remade after the Closing Date, less than $5,000,000 or such greater amount
that the Administrative Agent has reasonably determined, after full written
disclosure thereof by Borrower to the Administrative Agent, would not constitute
a Material Adverse Effect), (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 Borrower, 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.
4.11 Binding Obligations. Each of the Loan Documents to which the Loan
Parties are a Party will, when executed and delivered by the Loan Parties,
constitute the legal, valid and binding obligation of the Loan Parties,
enforceable against the Loan Parties 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.
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 would
constitute a Material Adverse Effect;
(ii) such Pension Plan has not incurred any "accumulated
funding deficiency" (as defined in Section 302 of ERISA) that would constitute 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 would constitute a Material Adverse
Effect; and
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(iv) neither Parent nor any of its Subsidiaries has engaged in
any nonexempt "prohibited transaction" (as defined in Section 4975 of the Code)
that would constitute a Material Adverse Effect.
(b) neither Parent nor any of its Subsidiaries has incurred or
expects to incur any withdrawal liability to any Multiemployer Plan that would
constitute 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, as amended.
4.15 Disclosure. No written statement made by a Senior Officer to the
Administrative Agent or any Lender 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.
4.17 Hazardous Materials. Except as described in Schedule 4.17, as of the
Closing Date (a) none of the Loan Parties, nor to the best knowledge of
Borrower, any other Person at any time has disposed of, discharged, released or
threatened the release of any Hazardous Materials on, from or under the Projects
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
Borrower, no condition exists that violates any Hazardous Material Law affecting
any Projects except for such violations that would not individually or in the
aggregate constitute a Material Adverse Effect, (c) no Projects or any portion
thereof is or has been utilized by the Loan Parties nor, to the best knowledge
of Borrower, 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 Borrower or any other Person on any Project, or transported to or from
such Project by the Loan Parties or any other Person, such use, generation,
storage and transportation by the Loan Parties and, to the best knowledge of
Borrower, 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 Lenders, and (e) no
Project is subject to any remediation, removal, containment or similar action
conducted by or on behalf of any Loan Party or any other Person, or with respect
to any such Project 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.
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4.18 Initial Subject Properties. The Subject Properties set forth on
Schedule 1.3: (i) are wholly owned in fee simple by Borrower or a direct or
indirect Subsidiary of Borrower, (ii) are free and clear of all Liens, including
any Liens or on any direct or indirect interest of Borrower or any Subsidiary
therein (other than the applicable Subject Property Loan Documents and Permitted
Liens), (iii) if owned by a Subsidiary of Borrower, the capital stock of such
Subsidiary that is owned by Borrower or any other member of the Consolidated
Group is not subject to any pledge, Negative Pledge or security interest in
favor of any Person other than the Administrative Agent and the lenders under
the applicable Subject Property Loan Documents, (iv) do not have, any title,
survey, environmental or other defect that would reasonably be expected to
materially impair the value, use of or ability to sell or refinance such
Project, and (v) are not subject to any Subject Property Loan Documents pursuant
to which there has occurred and is continuing a default or event of default.
Borrower has pledged to the Administrative Agent as Collateral all of the Equity
Interests that, in the reasonable judgment of Borrower, as confirmed by the
Administrative Agent in its reasonable discretion, Borrower is permitted to
pledge under the Subject Property Loan Documents of the Subject Properties set
forth on Schedule 1.3. The Subject Property Loan Documents and the
organizational documents of the direct and indirect owners of the Subject
Properties do not prohibit, restrict or limit the pledge of the Collateral to
the Administrative Agent or the subsequent transfer or assignment of the
Collateral.
4.19 Property. All of the Loan Parties' and their respective
Subsidiaries' properties are in good repair and condition, subject to ordinary
wear and tear, other than with respect to (i) deferred maintenance existing as
of the date of acquisition of such property as permitted in this Section 4.19,
(ii) Projects currently under development and (iii) defects relating to
properties other than Subject Properties which would not constitute a Material
Adverse Effect. The Loan Parties 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 approximate date of the Loan Parties'
or such Subsidiaries' purchase thereof or (b) the approximate 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 to the extent such an investigation was required by
the applicable lender, 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 Subject Properties 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 Loan Party 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 Subject Property, and, to
the best knowledge of Borrower, no such proceedings are presently threatened by
any taking authority which individually or in the aggregate would constitute a
Material Adverse Effect. None of the property of the Loan Parties 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 the aggregate would constitute a Material Adverse Effect. The Projects owned
by Parent, each of the other Loan Parties and their respective Subsidiaries as
of the date hereof, are set forth on Schedule 4.19 hereto.
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4.20 Brokers. None of the Loan Parties or 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 Loan Parties or 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 or more or under any other material agreement or
lease to which any of them is a party. None of the Loan Parties 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 Loan Party. Schedule 4.21 hereto sets forth
all of the Secured Indebtedness and recourse Indebtedness of the type described
in Sections 6.11 and 6.12 of the Loan Parties 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 Loan
Parties 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 Loan Party is able to
pay its debts as they become due, and each Loan Party 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 Loan Party 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 Loan Parties; Consideration. The
transaction evidenced by this Agreement and the other Loan Documents is in the
best interests of the Loan Parties. The direct and indirect benefits to inure to
the Loan Parties 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 Loan Parties pursuant to this Agreement and the other Loan Documents, and
but for the willingness of the Loan Parties to be jointly and severally liable
as co Loan obligor for the Loan, Loan Parties would be unable to obtain the
financing contemplated hereunder which financing will enable the Loan Parties
and their respective Subsidiaries to have available financing to conduct and
expand their business.
4.25 No Bankruptcy Filing. None of the Loan Parties or 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 Property, and none of the Loan Parties has any knowledge of any Person
contemplating the filing of any such petition against it or any Subsidiary.
4.26 OFAC Representation. The Borrower and each Guarantor is not, and
shall not be at any time, a person with whom the Lenders are restricted from
doing business under the regulations of the Office of Foreign Asset Control
("OFAC") of the Department of Treasury of the Xxxxxx
- 00 -
Xxxxxx xx Xxxxxxx (including, those Persons named on OFAC's Specially Designated
and Blocked Persons list) or under any statute, executive order (including, the
September 24, 2001 Executive Order Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism),
or other governmental action and is not and shall not engage in any dealings or
transactions or otherwise be associated with such persons. In addition, the
Borrower hereby agrees to provide to the Administrative Agent any information
that the Administrative Agent deems necessary from time to time in order to
ensure compliance with all applicable Laws concerning money laundering and
similar activities.
ARTICLE 5
AFFIRMATIVE COVENANTS OTHER THAN
INFORMATION AND REPORTING REQUIREMENTS
So long as any Advance remains unpaid or any other Obligation remains
unpaid, Borrower shall, and shall cause the other Loan Parties and its other
Subsidiaries to, unless the Administrative Agent (with the written approval of
the Requisite Lenders) 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 upon any of
their respective Property, except that the Loan Parties 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 the
Loan Parties 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 Projects. Maintain, preserve and protect all of their
respective Income-Producing Projects in good order and condition, subject to
wear and tear in the ordinary course of business, and not permit any waste of
their respective Projects.
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 the Loan Parties or such Subsidiaries, as applicable,
operate. Without limiting the foregoing, upon request of the Administrative
Agent, each Loan Party
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shall maintain for itself, and its Subsidiaries, or cause each of its
Subsidiaries to maintain, terrorism insurance in form, substance and amount as
is reasonably satisfactory to the Administrative Agent.
5.5 Compliance With Laws. Comply with all Requirements of Law
noncompliance with which would constitute a Material Adverse Effect, except that
the Loan Parties 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, (b) then being contested by any of them in good faith by appropriate
proceedings or (c) the failure with which to comply would not reasonably be
expected to constitute a Material Adverse Effect.
5.9 Use of Proceeds. Use the proceeds of all Advances for the
acquisition of Projects in connection with the Loan Parties' Permitted Business
Activities.
5.10 Hazardous Materials Laws. Keep and maintain all Projects 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 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 the Loan Parties 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 the Loan Parties or any of their
respective Subsidiaries of any material occurrence or condition on any Project
that could reasonably be expected to cause such Project to be subject to any
restrictions on the ownership, occupancy, transferability or use of such Project
under any applicable Hazardous Materials Laws.
5.11 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.
5.12 Inspection of Properties and Books. Permit the Lenders, through the
Administrative Agent or any representative designated by the Administrative
Agent, at Borrower's expense, to visit and inspect any of the properties of the
Loan Parties or any of their respective Subsidiaries (subject to the rights of
any tenants), to examine the books of account of the Loan Parties and their
respective Subsidiaries (and to make copies thereof and extracts therefrom) and
to discuss the
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affairs, finances and accounts of the Loan Parties 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 Lender may reasonably request upon reasonable
notice; provided, however, that inspections made at Borrower's expense shall be
limited to once per year, unless an Event of Default shall have occurred and be
continuing. The Lenders shall use good faith efforts to coordinate such visits
and inspections so as to minimize the interference with and disruption to the
Loan Parties' or such Subsidiaries' normal business operations.
5.13 More Restrictive Agreements. Promptly notify the Administrative
Agent should any Loan Party or any Subsidiary of a Loan Party 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 provisions of Sections 6.1, 6.3, 6.5 through 6.13, inclusive, and 6.15 (or
any other provisions which may have the same practical effect as any of the
foregoing) against any of the Loan Parties or their respective Subsidiaries than
those set forth herein, 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 Lenders, the Loan Parties, the Administrative Agent, and the
Requisite Lenders 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, in each case solely for the
duration of such restrictive provisions or guaranties under such other
agreements or documents, as determined by the Requisite Lenders in their sole
reasonable discretion. Notwithstanding the foregoing, this Section 5.15 shall
not apply to covenants contained in any agreements or documents that relate only
to a specific Project that is collateral for any existing or future Indebtedness
of any of Borrower or their Subsidiaries that is permitted by the terms of this
Agreement.
5.14 Distributions of Excess Funds to Deposit Account. Cause each of the
Subject Property Owners to transfer to the Deposit Account not less frequently
than once each month, whether in the form of dividends, distributions or
otherwise, all Excess Funds.
ARTICLE 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid or any other Obligation remains
unpaid, or any portion of the Commitments remains in force, the Loan Parties and
their respective Subsidiaries shall not, unless the Administrative Agent (with
the written approval of the Requisite Lenders or, if required by Section 12.1,
of all of the Lenders) otherwise consents:
6.1 Mergers and Liquidation. (i) Merge or consolidate with or into any
Person, except a merger or consolidation of one or more Loan Parties with and
into another Loan Party or one or more Subsidiaries of a Loan Party with and
into another Subsidiary of such Loan Party or another Loan Party, provided that
in all cases Parent and Borrower must both be surviving entities or (ii) agree
to sell, transfer or dispose of assets which, when aggregated with all other
assets sold during the current Fiscal Quarter and the three (3) preceding Fiscal
Quarters, would exceed twenty percent (20%) of the then-current Gross Asset
Value. Notwithstanding the foregoing, the Borrower may
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permit the merger or consolidation of any Subject Property Owner or any transfer
of a Subject Property so long as such transaction is permitted by, and satisfies
the requirements of, Section 2A.3.
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)
that would constitute a Material Adverse Effect, (ii) fail to comply with ERISA
in a manner that would constitute a Material Adverse Effect, (iii) incur any
material "accumulated funding deficiency" (as defined in Section 302 of ERISA)
to the extent that it would constitute a Material Adverse Effect or (iv)
terminate in any manner that would constitute a Material Adverse Effect, or (b)
withdraw, completely or partially, from any Multiemployer Plan if to do so would
constitute 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
the Consolidated Group.
6.4 Transactions with Affiliates. Enter into any transaction of any kind
with any Affiliate of the Loan Parties 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 Loan Party and another Loan Party or one Subsidiary and
another Subsidiary or one Subsidiary and a Loan Party and (e) transactions on
overall terms at least as favorable to the Loan Parties 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 to be greater than 60%;
provided, however, that the maximum permitted Leverage Ratio is hereby increased
to 65%, for a period of six (6) months from the Agreement Effective Date (the
"Increased Leverage Period"); provided further, however, that if, not less than
ten (10) days prior to the expiration of the Increased Leverage Period, Borrower
so requests in writing and the Requisite Lenders so approve, in their sole
discretion, the Increased Leverage Period may be extended for up to an
additional six (6) months.
6.6 Interest Coverage. Permit the Interest Coverage Ratio, as of any
day, to be less than 2.00 to 1.00.
6.7 Fixed Charge Coverage. Permit the Fixed Charge Coverage Ratio, as of
any day, to be less than 1.70 to 1.00.
6.8 Distributions. Make any Distribution (a) if such Distribution for
any Fiscal Quarter alone, with respect to each Fiscal Quarter ending on or
before September 30, 2005, or for such Fiscal Quarter and the preceding three
(3) Fiscal Quarters, with respect to each Fiscal Quarter ending after September
30, 2005 would exceed (A) 95% of Funds From Operations of the Consolidated Group
plus revenue of the Consolidated Group from master leases of the KOP Project and
the Bayshore Project or (B) 100% of Funds Available for Distribution for such
period (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
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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 this clause
(a)) and provided further that if an Event of Default has occurred and is
continuing, the Loan Parties may only make those Distributions expressly
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, provided that if a monetary Event of Default or an Event of Default
which involves the bankruptcy of a Loan Party or which has resulted in an
acceleration of the Obligations hereunder occurs, no further Distributions may
be made.
6.9 Net Worth. Permit Net Worth, as of any date, to be less than the sum
of (a) $350,000,000, plus (b) eighty-five percent (85%) of the net proceeds from
any Equity Offering of any Loan Party made after the Closing Date.
6.10 [Intentionally Omitted].
6.11 Secured Indebtedness. Permit Secured Indebtedness of the
Consolidated Group to exceed, as of any date, an amount equal to 50% of
then-current Gross Asset Value.
6.12 Recourse Debt. Permit any recourse Indebtedness (whether secured or
unsecured), other than under this Agreement and the Unsecured Credit Agreement
(collectively, the "Related Facilities"), to exist until the aggregate
outstanding Indebtedness under the Related Facilities does not exceed 40% of
Gross Asset Value (the "Changeover Date"), provided that (i) until the
Changeover Date only, the Consolidated Group may incur recourse Indebtedness in
addition to the Indebtedness under the Related Facilities so long as such
additional recourse Indebtedness does not exceed in the aggregate $35,000,000
and (ii) after such Changeover Date the aggregate of all outstanding recourse
Indebtedness (including all Indebtedness under the Related Facilities and any
other recourse Indebtedness), as of any date, shall not exceed 40% of
then-current Gross Asset Value.
6.13 Permitted Investments. Without limiting Section 5.6:
(a) permit the sum of (i) the total value of undeveloped land owned
by the Consolidated Group plus (ii) the Consolidated Group Pro Rata Share of
undeveloped land owned by Investment Affiliates to exceed 10% of Gross Asset
Value (with undeveloped land valued at cost);
(b) permit the sum of (i) the aggregate amount invested by the
Consolidated Group in Projects owned by the Consolidated Group that are under
development and budgeted to be invested to achieve Stabilization of such
Projects plus (ii) the Consolidated Group Pro Rata Share of any amounts so
invested and budgeted to be invested by the Investment Affiliates in Projects
owned by the Investment Affiliates that are under development to exceed 10% of
Gross Asset Value (with Projects under development ceasing to be treated as such
when GAAP permits such Project to be classified as an operating asset);
(c) permit the aggregate amount invested by the Consolidated Group
in assets other than Projects or cash or Cash Equivalents to exceed 10% of Gross
Asset Value;
(d) permit the aggregate amount invested by the Consolidated Group
in or with respect to Investment Affiliates, excluding the partnership that owns
the real property located in San
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Diego, California commonly known as the "XxXxxxxx Court" property, to exceed 10%
of Gross Asset Value; and
(e) permit the aggregate amount invested by the Consolidated Group
in the Investments listed as subparagraphs (a) through (d) immediately above to
exceed 25% of Gross Asset Value.
6.14 Liens. Create, incur, or suffer to exist any Negative Pledge or Lien
in, of or on the Project of any member of the Consolidated Group, except:
(a) Liens for taxes, assessments or governmental charges or levies
on its Property if the same shall not at the time be delinquent or thereafter
can be paid without material penalty, or are being contested in good faith and
by appropriate proceedings and for which adequate reserves shall have been set
aside on its books;
(b) Liens imposed by Law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 60 days past due or
which are being contested in good faith by appropriate proceedings and for which
adequate reserves shall have been set aside on their books;
(c) Liens arising out of pledges or deposits under workers'
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation;
(d) easements, restrictions and such other encumbrances or charges
against real property as are of a nature generally existing with respect to
properties of a similar character (including, without limitation, Liens with
respect to rights of tenants under lease and rental agreements entered into in
the ordinary course of business) and which do not in any material way affect the
marketability of the same or interfere with the use thereof in the business of
Borrower or any other member of the Consolidated Group;
(e) any other Liens that, individually or in the aggregate, would
not reasonably be expected to impair the ability to place mortgage financing on
the Project encumbered by such Liens or otherwise constitute a Material Adverse
Effect or subject such Project to a material impending risk of loss of
forfeiture or a material loss of value;
(f) first priority mortgages and related financing statements and
first priority security agreements on the Subject Properties in existence on the
date hereof or encumbering a Project on or after the date hereof which becomes a
Subject Property after the date hereof pursuant to Section 2A.2 and any first
priority mortgages and related financing statements and first priority security
agreements in connection with a refinancing of any such Subject Property
Indebtedness permitted under Section 2A.4;
(g) Liens in favor of the Administrative Agent and the Lenders under
the Loan Documents; and
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(h) Liens other than Liens described in subsections (a) through (g)
above arising in connection with any Indebtedness permitted hereunder to the
extent such Liens will not result in a Default in any of Borrower's covenants
herein.
Liens permitted pursuant to this Section 6.14 shall be deemed to be "Permitted
Liens."
6.15 Variable Interest Indebtedness. Permit the outstanding principal
balance of any Consolidated Outstanding Indebtedness which bears interest at an
interest rate that is not fixed through the maturity date of such Indebtedness
to exceed thirty-five percent (35%) of Gross Asset Value unless all of such
Indebtedness in excess of such amount is subject to a rate management
transaction approved in its reasonable discretion by the Administrative Agent
that effectively converts the interest rate on such excess to a fixed rate.
6.16 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, other than with respect to changes made in connection with
any preferred Equity Offering to reflect the terms of the preferred securities
being issued thereunder and any other amendments incidental thereto which may be
made without the Requisite Banks consent, so long as the Administrative Agent
has reviewed such changes and confirmed that the terms of such preferred
securities are customary and do not create any creditors' rights that would
adversely affect in any material respect the rights of the Lenders hereunder.
6.17 Limiting Agreements. Unless otherwise permitted under this
Agreement, enter into any agreement, instrument or transaction that has or may
have the effect of prohibiting or further limiting Borrower's or any Assignor's
ability to pledge the Collateral described in the Account Agreement and in the
Assignment of Interests (or any subsequent Assignment of Interests delivered
pursuant to Article 2A).
6.18 Restrictions on Transfer. 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 Loan Party (provided that the foregoing shall not
prohibit transfers of Borrower's interest in any other Loan Party provided such
Loan Party remains a Wholly-Owned Subsidiary of Borrower), or any dilution of
its direct or indirect interest in any Loan Party, except as provided for in
Section 2A3. Borrower shall not in any manner transfer, assign, diminish or
otherwise restrict its direct or indirect right to vote or other rights with
respect to any Loan Party. Notwithstanding the foregoing, Borrower may sell,
assign, transfer or dispose of its interest in another Loan Party that is a
Subsidiary of Borrower, provided that on or before the closing of such sale
Borrower shall have delivered to the Administrative Agent a certification,
together with such other evidence as the Administrative Agent may reasonably
require, that Borrower will be in compliance with all covenants in this
Agreement after giving effect to such sale, assignment, transfer or other
disposition, including without limitation Section 2A.3.
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ARTICLE 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any Advance remains
unpaid or any other Obligation remains unpaid, or any portion of the
Commitments remains in force, Borrower shall, unless the Administrative
Agent (with the written approval of the Requisite Lenders) otherwise
consents, at Borrower's sole expense, deliver to the Administrative Agent
for distribution by it to the Lenders, a sufficient number of copies for
all of the Lenders of the following:
(a) As soon as practicable, and in any event within fifty (50) days
after the end of each Fiscal Quarter (other than the fourth Fiscal Quarter in
any Fiscal Year), quarterly unaudited consolidated financial statements,
including a consolidated balance sheet, income statement and statement of cash
flows of the Consolidated Group as at the end of such Fiscal Quarter and 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 the Parent's chief financial officer or chief accounting officer as fairly
presenting the financial condition, results of operations and cash flows of the
Consolidated Group 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 fifty (50) days
after the end of each Fiscal Quarter, a Compliance Certificate as of the last
day of such Fiscal Quarter, providing reasonable detail as to the calculation
thereof;
(c) As soon as practicable, and in any event within fifty (50) 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 Subject Properties and a
complete Project roster, each in such detail as the Administrative Agent may
reasonably require
(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, annual audited consolidated
financial statements, including a consolidated balance sheet, income statement
and statement of cash flows, of the Consolidated Group 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 certified by the Parent's chief financial officer or chief accounting officer
and by KPMG or other independent public accountants of recognized standing
selected by Parent and reasonably satisfactory to the Requisite Lenders, which
financial statements 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 Lenders in their good
faith business judgment to be adverse to the interests of the Lenders;
(f) Upon request by the 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 for the
Consolidated Group, all in reasonable detail;
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(g) Promptly after request by the Administrative Agent or any
Lender, 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 other member of the Consolidated Group,
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 Lenders pursuant to other
provisions of this Section 7.1;
(i) Promptly after request by the Administrative Agent or any
Lender, copies of any other material report or other document that was filed by
the Consolidated Group 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 the Consolidated Group is taking or propose to take with respect thereto,
and, when known, any action taken by the Internal Revenue Service with respect
thereto;
(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 the
Consolidated Group is 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 any Loan
Party that is $5,000,000 or more in excess of the amount thereof that is fully
covered by insurance, (ii) any creditor under a credit agreement involving
Indebtedness of $5,000,000 or more or any lessor under a lease involving
aggregate rent of $5,000,000 or more has asserted a default thereunder on the
part of any Loan Party or, (iii) any Person has commenced a legal proceeding
with respect to a claim against any Loan Party under a contract (that is not a
credit agreement or material lease) in excess of $5,000,000 or which otherwise
would constitute a Material Adverse Effect, a written notice describing the
pertinent facts relating thereto and what action the Loan Parties are taking or
propose to take with respect thereto;
(m) [Intentionally Omitted.]
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(n) Not later than fifty (50) days after the end of each fiscal
quarter of the Consolidated Group (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 Loan Parties: (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
Lenders pursuant to this Section 7.1), a statement (which may be included in the
Compliance Certificates) listing (i) the Projects owned by the Consolidated
Group (or in which the Consolidated Group owns an interest) and stating the
location thereof, the date acquired and the acquisition cost, (ii) the
Indebtedness of the Consolidated Group, 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 Projects of the Consolidated Group which are Unstabilized Projects and
providing a brief summary of the status of such development; and
(p) Such other data and information as from time to time may be
reasonably requested by the Administrative Agent, any Lender (through the
Administrative Agent) or the Requisite Lenders.
7.2 Compliance Certificates. So long as any Advance remains unpaid or
any other Obligation remains unpaid or unperformed, or any portion of the
Commitments remains outstanding, Borrower shall, at Borrower's sole
expense, deliver to the Administrative Agent for distribution by it to the
Lenders 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.
ARTICLE 8
CONDITIONS
8.1 Initial Advances. The obligation of the Lenders to make the initial
Advances 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 Lenders, 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):
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(i) at least one (1) executed counterpart of this Agreement
and of the Guaranties, together with arrangements satisfactory to the
Administrative Agent for additional executed counterparts, sufficient in
number for distribution to the Lenders and Borrower;
(ii) Notes executed by Borrower in favor of each Lender, each
in a principal amount equal to that Lender's Percentage of the Loan
Commitment;
(iii) at least one (1) executed copy of each of the Security
Documents and the Acknowledgements;
(iv) with respect to each of the Loan Parties, such
documentation as the Administrative Agent may reasonably require to establish
the due organization, valid existence and good standing of each of the Loan
Parties, 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 Lenders reasonably
may require.
(b) All of the fees then required to have been paid under the Fee
Letter 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, the existing revolving credit facility of the Loan Parties with U.S. Bank
has been terminated and all Indebtedness thereunder repaid in full.
(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 Borrower on or prior to the Closing Date, shall
have been paid.
(e) The representations and warranties of Borrower contained in
Article 4 shall be true and correct in all material respects.
(f) Borrower and any other Loan 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 the Administrative Agent.
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(h) The Administrative Agent shall have received a Compliance
Certificate dated as of the Closing Date demonstrating compliance with each of
the then applicable covenants calculated therein.
(i) UCC financing statement and federal and state tax lien searches
with respect to Borrower, Parent and each Subsidiary Guarantor from their
respect states of organization.
(j) The duly executed originals of the Security Documents signed by
each of the parties thereto (or receipt by the Administrative Agent from a party
thereto of a facsimile signature pages signed by such party which shall have
agreed to promptly provide the Administrative Agent with the originally executed
counterparts thereof). Additionally, the Administrative Agent shall have
received, at the Borrower's expense, evidence in form and substance satisfactory
to the Administrative Agent that the Security Documents are effective to create
in favor of the Administrative Agent, for the benefit of the Lenders, a legal,
valid and enforceable first priority security interest in the Collateral
described in the Security Documents and that all filings, recordings, deliveries
of instruments and other actions necessary or desirable to protect and preserve
such security interests have been dully effected and that any and all consents
necessary or desirable with respect to such security interest, have been
received and remain in full force and effect as of the Agreement Effective Date.
(k) 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 Second Advance. The obligation of the Lenders to make the second
Advance is subject to the following conditions precedent (unless the
Requisite Lenders, 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 Borrower and
approved in writing by the Requisite Lenders, 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 in compliance with Article 2;
(d) no Default or Event of Default shall have occurred and be
continuing; and
(e) 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 Lenders reasonably may require.
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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":
(a) Borrower fails to pay any principal on any of the Notes, or any
portion thereof, on the date when due; or
(b) Borrower fails to pay any interest on any of the Notes or any
fees under the Fee Letter, or any portion thereof, within five (5) Banking Days
after the date when due; or Borrower fails to pay any other fee or amount
payable to the Lenders or the Administrative Agent under any Loan Document, or
any portion thereof, within ten (10) Banking Days after demand therefor; or
(c) Borrower or any of the other Loan Parties fails to comply with
any of the covenants contained in Article 6; or
(d) Borrower shall fail to comply with Section 7.1(k) in any way
that is materially adverse to the interests of the Lenders; or
(e) Borrower or any other Loan 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 Lenders 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 Borrower or such Loan 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 clause (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 Borrower or such Loan 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 Borrower or any other Loan
Party made in any Loan Document, or in any certificate or other writing
delivered by Borrower or any Loan Party 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 Lenders; or
(g) Borrower or any Loan Party or other member of the Consolidated
Group fails to perform or observe any other term, covenant or agreement on its
part to be performed or observed within any applicable notice and cure period,
or suffers any such event of default to occur, in connection with (A) any
present or future Indebtedness under the Unsecured Credit Agreement or any other
present or future Indebtedness (other than Non-Recourse Indebtedness) or (B) any
present or future Non-Recourse Indebtedness having an outstanding principal
balance, individually or in the
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aggregate, of $20,000,000 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 become due or the right to require such member of the
Consolidated Group 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 Lenders 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 Lenders; or any Loan
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 member of the Consolidated Group is
entered for the payment of money in excess of $5,000,000 (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 sixty
(60) 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 sixty (60) calendar days after
its issue or levy; or
(j) Any member of the Consolidated Group 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 any member of the Consolidated
Group is determined to have a material "accumulated funding deficiency" as that
term is defined in Section 302 of ERISA of an amount that would constitute 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
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successor for such Person shall be approved by the Requisite Lenders within
three (3) months of such event, such approval not to be unreasonably withheld,
delayed or conditioned; or
(n) Failure to remediate within the time period permitted by Law or
governmental order, after all administrative hearings and appeals have been
concluded (or within a reasonable time in light of the nature of the problem if
no specific time period is so established), material environmental problems at
Projects owned by Borrower or any other member of the Consolidated Group or any
Investment Affiliate which contribute in the aggregate in excess of $5,000,000
to Gross Asset Value.
9.2 Remedies Upon Event of Default. Without limiting any other rights or
remedies of the Administrative Agent or the Lenders 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), the
Requisite Lenders 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 Borrower.
(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 all other obligations
of the Administrative Agent or the Lenders and all rights of Borrower and any
other Loan Parties under the Loan Documents shall terminate without notice to
or demand upon Borrower, which are expressly waived by Borrower, except that
all of the Lenders or the Requisite Lenders (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
Lenders, to reinstate the Commitments and such other obligations and rights
and make further Advances which determination shall apply equally to, and
shall be binding upon, all the Lenders; 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 Borrower.
(c) Upon the occurrence and during the continuance of any Event of
Default, the Administrative Agent, on behalf of the Lenders, without notice to
(except as expressly provided for in any Loan Document) or demand upon Borrower,
which are expressly waived by Borrower (except as to notices expressly provided
for in any Loan Document), may proceed (but only with the consent of the
Requisite Lenders) to protect, exercise and enforce their rights and remedies
under the Loan Documents against Borrower and any other Loan Party and such
other rights and remedies as are provided by Law or equity.
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(d) The order and manner in which the Lenders' rights and remedies
are to be exercised shall be determined by the Requisite Lenders in their sole
discretion, and all payments received by the Administrative Agent and the
Lenders, 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
Lender) of the Administrative Agent and of the Lenders, then to the repayment of
the Loans, and thereafter paid pro rata to the Lenders in the same proportions
that the aggregate Obligations owed to each Lender under the Loan Documents bear
to the aggregate Obligations owed under the Loan Documents to all the Lenders,
without priority or preference among the Lenders. Regardless of how each Lender
may treat payments for the purpose of its own accounting, for the purpose of
computing the Obligations hereunder and under the Notes, payments shall be
applied first, to the costs and expenses of the Administrative Agent and the
Lenders, as set forth above, second, 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 third, pari passu to
the payment of all other amounts (including principal and fees) then owing to
the Administrative Agent or the Lenders under the Loan Documents and to the
payment of any termination payments due from Borrower 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 Lenders hereunder or thereunder or at Law
or in equity.
ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. Subject to Section 10.8, each Lender
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 Lender or
as representative of any Lender 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. KeyBank (and each successor
Administrative Agent in its individual capacity) has the same rights and powers
under the Loan Documents as any other Lender and may exercise the same as though
it were not the Administrative Agent, and the term "Lender" or "Lenders"
includes KeyBank in its individual capacity. KeyBank (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 Borrower or any other member of the Consolidated Group,
as if it were not the Administrative Agent and without any duty to account
therefor to the Lenders. KeyBank (and each successor Administrative Agent in its
individual capacity) need not account to any other Lender for any monies
received by it for reimbursement of its costs and expenses as the Administrative
Agent hereunder, or for any monies received by it in its capacity as a Lender
hereunder, other than as required of any Lender hereunder. The Administrative
Agent shall not be deemed to hold a
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fiduciary or agency relationship with any Lender 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 Lenders, 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 Lenders'
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
Lender) and subject to the application of payments in accordance with Section
9.2(d), each Lender 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 Lender under the Loan
Documents bear to the aggregate Obligations owed under the Loan Documents to all
the Lenders, without priority or preference among the Lenders.
10.4 Lenders' Credit Decisions. Each Lender agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, and instead in reliance upon
information supplied to it by or on behalf of Borrower and upon such other
information as it has deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each Lender also agrees that
it shall, independently and without reliance upon the Administrative Agent, any
other Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, 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 Borrower stating the nature of the Default or has received notice from a
Lender stating the nature of the Default and that such Lender 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 Lenders (or of all the Lenders, to the extent required by Section
12.1) and those instructions shall be binding upon the Administrative Agent and
all the Lenders, provided that the Administrative Agent shall not be required to
comply with such instructions if to do so would be contrary to any Loan
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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 Lenders and shall
comply with the instructions of the Requisite Lenders (or of all the Lenders, 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 Lenders
(or all the Lenders, 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
Lenders.
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:
(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 Lender as the owner of that Lender'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 Lender;
(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 the Consolidated Group or the Lenders, 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 Lender 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 Borrower or the Loan Parties 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 the Loan Parties;
(e) Will not be responsible to any Lender 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;
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(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 Borrower or any other Loan Party thereof
or paid or payable to or received or receivable from any Lender 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 Lenders and (to the extent
applicable) Borrower and/or the other Loan Parties 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 Lenders,
with respect to the creditworthiness or financial condition of the Consolidated
Group, the value of their respective assets or the collectability of the Loans.
10.7 Indemnification. Each Lender shall, ratably in accordance with its
Percentage 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 (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 Borrower to pay the Indebtedness represented by the
Notes) or any action taken or not taken by it as the Administrative Agent
thereunder, except such as result from its own gross negligence or willful
misconduct. Without limitation on the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for that Lender's Percentage 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 Loan 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 Lenders if and to the extent that such amount has
theretofore been recovered from Borrower or any other Loan Party. To the extent
that the Administrative Agent or any indemnitee referred to above is later
reimbursed such amount by Borrower or any other Loan Party, it shall return the
amounts paid to it by the Lenders in respect of such amount.
10.8 Successor Administrative Agent. The Administrative Agent may resign
as Administrative Agent upon reasonable notice to the Lenders and Borrower
effective not earlier than thirty (30) days after such notice, upon acceptance
of appointment by a successor Administrative Agent. The Requisite Lenders 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
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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 Lenders shall appoint from among the Lenders a
successor Administrative Agent for the Lenders, 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 Lenders 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 Lenders. 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 Administrative Agent under this
Agreement. Notwithstanding the foregoing, if (a) the Administrative Agent has
not been paid its administrative agency fees under the Fee Letter 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 Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Requisite
Lenders appoint a successor Administrative Agent as provided for above.
10.9 No Obligations of Borrower. Nothing contained in this Article 10
shall be deemed to impose upon Borrower any obligation in respect of the due and
punctual performance by the Administrative Agent of its obligations to the
Lenders under any provision of this Agreement, and Borrower shall have no
liability to the Administrative Agent or any of the Lenders in respect of any
failure by the Administrative Agent or any Lender to perform any of its
obligations to the Administrative Agent or the Lenders 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 Borrower to the
Administrative Agent for the account of the Lenders, Borrower's obligations to
the Lenders 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. Neither the Lead Arranger nor the Syndication 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 Lender.
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ARTICLE 11
MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver. The rights, powers, privileges and
remedies of the Administrative Agent and the Lenders 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 Lender 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 Lenders; 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 Lenders' rights to assert
them in whole or in part in respect of any other Loan.
11.2 [Intentionally Omitted.]
11.3 Costs, Expenses and Taxes. Borrower 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, Borrower shall also pay on
demand, accompanied by an invoice therefor, the reasonable costs and expenses of
the Administrative Agent and the Lenders 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 Lender), independent public accountants and
other outside experts retained by the Administrative Agent or any Lender,
whether or not such costs and expenses are incurred or suffered by the
Administrative Agent or any Lender in connection with or during the course of
any bankruptcy or insolvency proceedings of any member of the Consolidated
Group. Borrower shall pay any and all documentary and other taxes, excluding (i)
taxes imposed on or measured in whole or in part by any Lender's overall net
income imposed on such Lender (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 Lender is organized or
maintains its principal office or LIBOR Lending Office or (B) any jurisdiction
(or political subdivision thereof) in which such Lender 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 Lender has
failed, for any reason, to provide Borrower 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
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Administrative Agent and the Lenders 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
Lender 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 Lenders' Obligations. The obligations of the Lenders
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 Lenders or any of them pursuant hereto or thereto
may, or may be deemed to, make the Lenders a partnership, an association, a
joint venture or other entity, either among themselves or with Borrower or any
other member of the Consolidated Group. A default by any Lender will not
increase the Percentage of the Commitments attributable to any other Lender. Any
Lender not in default may, if it desires, assume in such proportion as the
nondefaulting Lenders agree the obligations of any Lender in default, but is not
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
Lenders to assume the obligations of a Lender in default or to obtain another
Lender, reasonably satisfactory to Borrower, to replace such a Lender in
default. A defaulting Lender'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 Lenders shall be suspended during the pendency of such
Lender'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 Lender, notwithstanding any investigation made by
the Administrative Agent or any Lender 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 Lenders shall be entitled
to rely and act upon any notices
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purportedly given by or on behalf of Borrower and Lenders shall be entitled to
rely and act upon any 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. Borrower shall indemnify the
Administrative Agent and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance of such Person on each notice
purportedly given by Borrower, 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 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 the Loan
Parties are a party are and will be binding upon and inure to the benefit of the
Loan Parties, the Administrative Agent, each of the Lenders, and their
respective successors and assigns, except that the Loan Parties may not assign
their rights hereunder or thereunder or any interest herein or therein without
the prior written consent of all the Lenders, and any purported assignment
without such consent shall be null and void. Each Lender 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 Lender). Any
Lender may at any time pledge or assign a security in all or any portion of its
Note or any other instrument evidencing its rights as a Lender under this
Agreement to secure obligations of such Lender, including without limitation (i)
any pledge or assignment to secure obligations to a Federal Reserve Bank, and
(ii) in the case of a Lender that is a Related Fund, any pledge or assignment to
any holders of obligations owed, or security issued, by such Lender, including
to any trustee for, or any other representative of such holders, provided that
no such pledge shall release that Lender from its obligations hereunder or grant
to such Federal Reserve Bank or other pledgee or assignee the rights of a Lender
hereunder absent foreclosure of such pledge or assignment.
(b) From time to time following the Closing Date, each Lender 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 Lender or an Affiliate
or Related Fund of a Lender, 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 or Related Fund of the assigning Lender, to another
Lender or of the entire remaining Commitment of the assigning Lender, the
assignment shall not assign a share of the Commitment that is equivalent to less
than $2,000,000, (iv) the assignment shall be of a
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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 Lender
for all purposes of this Agreement, with a Percentage and Commitment amount as
therein (and herein, if such Eligible Assignee was already a Lender) set forth
and, to the extent of the portion of the Commitment assigned, the assigning
Lender shall be released from its further obligations under this Agreement.
Borrower agrees that it shall execute and deliver to such assignee Lender, Notes
evidencing that assignee Lender's Commitment, and to the assigning Lender, Notes
evidencing the remaining balance of such Lender'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 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 the Loan Parties or the performance by the Loan Parties
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 Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement; (v) 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 Lender.
(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
Lenders and the Percentage and Commitment amount held by each Lender, giving
effect to each Commitments Assignment and Acceptance. The Register shall be
available during normal business hours for inspection by Borrower or any Lender
upon reasonable prior notice to the Administrative Agent. After receipt of a
completed Commitments Assignment and Acceptance executed by any Lender and an
Eligible Assignee and the Notes subject to such assignment, and receipt of an
assignment fee of $3,500 from such Lender or Eligible Assignee (which fee shall
be imposed only once with respect to simultaneous transfers on a single day to
different Affiliates or Related Funds of such Lender), the Administrative Agent
shall, promptly following the effective date thereof, upon the request of any
party, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect
thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat
the Persons listed as Lenders 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
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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 Lender 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
Lender shall be conclusive and binding on any subsequent holder, assignee or
transferee of such Commitment.
(e) Each Lender may from time to time grant participations to one or
more banks or other financial institutions (including another Lender but
excluding an Employee Plan) in a portion of its Commitment; provided, however,
that (i) such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the participating banks or other
financial institutions shall not be a Lender 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
Borrower does not exceed the cost which Borrower would have incurred absent the
participation, (iv) Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, (v) the participation
interest shall be expressed as a percentage of the granting Lender'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 Lender (but in each case only
with the consent of the Requisite Lenders 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
Borrower and/or any Property of Borrower 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 Lender severally agrees that if it, through
the exercise of any right of setoff, banker's lien or counterclaim against
Borrower, or otherwise, receives payment of the Obligations held by it that
is ratably more than any other Lender, through any means, receives in payment
of the Obligations held by that Lender, then, subject to applicable Laws: (a)
the Lender 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 Lenders a participation in
the Obligations held by the other Lenders and shall pay to the other Lenders
a purchase price in an amount so that the share of the Obligations held by
each Lender 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 Lenders share any payment obtained in
respect of the Obligations ratably in accordance with each Lender'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 Lender
by
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Borrower or any Person claiming through or succeeding to the rights of
Borrower, 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 Lender from which such payment is recovered is required
to pay interest thereon, in which case each Lender returning funds to such
Lender shall pay its pro rata share of such interest). Each Lender 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 Lender were the original owner of the Obligations
purchased. Borrower expressly consents to the foregoing arrangements and
agrees that any Lender holding a participation in an Obligation so purchased
pursuant to this Section 11.10 may exercise any and all rights of setoff,
banker's lien or counterclaim with respect to the participation as fully as
if the Lender were the original owner of the Obligation purchased.
11.11 Indemnity by Borrower. Borrower agrees to indemnify, save and hold
harmless the Administrative Agent and Lead Arranger and each Lender 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 3.9(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 Borrower, the other members of
the Consolidated Group or any of their officers, directors or stockholders
relating to the Commitments, the use or contemplated use of proceeds of any
Loan, or the relationship of Borrower and the Lenders 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 Borrower, but the failure to so
promptly notify Borrower shall not affect Borrower's obligations under this
Section unless such failure materially prejudices Borrower's 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
Borrower in writing) contest the validity, applicability and amount of such
claim, demand, action or cause of action and shall permit Borrower to
participate in such contest. Any Indemnitee that proposes to settle or
compromise any claim or proceeding for which Borrower may be liable for
payment of indemnity hereunder shall give Borrower 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 Borrower's
prior written 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 Borrower; 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
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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 Borrower, 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 Borrower to any Indemnitee under this Section 11.11 shall
survive the expiration or termination of this Agreement and the repayment of
all Loans and the payment and performance of all other Obligations owed to
the Lenders.
11.12 Nonliability of the Lenders. Borrower acknowledges and agrees that:
(a) Any inspections of any Property of Borrower or any other Loan
Party made by or through the Administrative Agent or the Lenders are for
purposes of administration of the Loan only and Borrower and such other Loan
Parties are not entitled to rely upon the same (whether or not such inspections
are at the expense of Borrower);
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to the Administrative Agent or the Lenders
pursuant to the Loan Documents, neither the Administrative Agent nor the Lenders
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 Lenders;
(c) The relationship between Borrower and the Administrative Agent
and the Lenders is, and shall at all times remain, solely that of borrowers and
lenders; neither the Administrative Agent nor the Lenders shall under any
circumstance be construed to be partners or joint venturers of Borrower or any
other member of the Consolidated Group, neither the Administrative Agent nor the
Lenders shall under any circumstance be deemed to be in a relationship of
confidence or trust or a fiduciary relationship with Borrower or any other
member of the Consolidated Group, or to owe any fiduciary duty to Borrower or
any other member of the Consolidated Group, ; neither the Administrative Agent
nor the Lenders undertake or assume any responsibility or duty to Borrower or
any other member of the Consolidated Group, to select, review, inspect,
supervise, pass judgment upon or inform Borrower or any other member of the
Consolidated Group, of any matter in connection with their Property or the
operations of Borrower or any other member of the Consolidated Group, ; Borrower
and such other members 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 Lenders in connection with such matters is solely for the protection of the
Administrative Agent and the Lenders and neither Borrower nor any other Person
is entitled to rely thereon; and
(d) The Administrative Agent and the Lenders 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 Borrower and/or any other member of the
Consolidated Group, and Borrower hereby indemnifies and holds the Administrative
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Agent and the Lenders 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
Borrower, the Administrative Agent and the Lenders in connection with the
Loans, and is made for the sole benefit of Borrower, the Administrative Agent
and the Lenders, and the Administrative Agent's and the Lenders' 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.
11.14 Confidentiality.
(a) Confidentiality. Each Lender and the Administrative Agent (each,
a "Lender Party") hereby agrees for itself only that, except as specifically set
forth herein, such Lender Party (i) 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 Borrower, (ii)
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) shall 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) shall not disclose the Confidential Information to any
third party, except as expressly authorized in this Agreement or with prior
written consent of Borrower. Each Lender Party shall promptly notify Borrower 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 came 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 Borrower
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
Borrower 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 Borrower, other Lenders, 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
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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 Loan Party are adverse parties (and 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 Lender is required to obtain, verify and record information that identifies
the Loan Parties, which information includes the name and address of the Loan
Parties and other information that will allow such Lender to identify the Loan
Parties in accordance with the Act), (vi) to another potential Lender or
participant in connection with an assignment or proposed assignment 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 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 Governmental
Agency 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 Borrower in writing so that Borrower 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 Borrower 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 Lender 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
Lender 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, and transactions contemplated hereby.
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(c) No Rights in Confidential Information. The Administrative Agent
and each Lender 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 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 Borrower 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 Borrower or its Subsidiaries and if such Lender Party obtains knowledge that
such third party is violating a confidentiality agreement with Borrower, 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 Borrower irreparable damage for which recovery
of damages would be inadequate, and that Borrower 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 Lenders to Borrower.
(g) Separate Action. Borrower covenants and agrees not to, and
hereby expressly waives any right to, raise as a defense, affirmative defense,
setoff, 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 Borrower 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. Borrower shall, at its expense and without
expense to the Lenders or the Administrative Agent, do, execute and deliver
such further acts and documents as the Requisite Lenders or the
Administrative Agent from time to time reasonably require for the assuring
and confirming unto the Lenders 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 Lenders in any
other Loan Document shall not be deemed a conflict with this Agreement. Each
Loan Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
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 the State of New York without any regard to conflicts of law
principles that would result in the application of any Law other than the Laws
of the State of New York.
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 Lender 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
Borrower (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 Lender and entitling it to a complete exemption from withholding on all
payments to be made to such Lender by Borrower pursuant to this Agreement) or
Form W-8ECI (relating to all payments to be made to such Lender by Borrower
pursuant to this Agreement), or W-8IMY, as applicable, of the United States of
America Internal Revenue Service or such other evidence satisfactory to Borrower
and the Administrative Agent that no withholding under the federal income tax
laws is required with respect to such Lender. If a Lender is claiming a
"portfolio interest exemption," such Lender shall, in addition to Form W-8BEN,
provide a certificate signed by a Responsible Official to the effect that (i)
such Lender is not a bank within the meaning of Section 881(c)(3)(A) of the
Code, (ii) such Lender is not a 10% shareholder of Borrower, and (iii) such
Lender is not related to 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 Lender shall (a) promptly submit to
Borrower (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 of America
taxing authorities) as may then be required under then current United States of
America
- 70 -
Laws and regulations to avoid, or such evidence as is satisfactory to Borrower
and the Administrative Agent of any available exemption from, United States of
America withholding taxes in respect of all payments to be made to such Lender
by Borrower pursuant to this Agreement and (b) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and
as may be reasonably necessary (including the re designation of its LIBOR
Lending Office, if any) to avoid any applicable deduction or withholding for
taxes from amounts payable to such Lender. In the event that Borrower 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 Borrower or the Administrative Agent to the Lender which granted such
participation, such Lender shall cause such participant financial institution to
deliver the same documents and information to Borrower and the Administrative
Agent as would be required under this Section if such financial institution were
a Lender. Each Lender that is a United States of America Person shall, upon the
reasonable request of Borrower, 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. Borrower hereby agrees to indemnify,
hold harmless and defend (by counsel reasonably satisfactory to the
Administrative Agent) the Administrative Agent and each of the Lenders 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 Lender, and expenses to the extent that the defense
of any such action has not been assumed by Borrower), arising directly or
indirectly out of (i) the presence on, in, under or about any Projects of any
Hazardous Materials, or any releases or discharges of any Hazardous Materials
on, under or from any Projects and (ii) any activity carried on or undertaken on
or off any Projects by Borrower or any Loan Party or any of their predecessors
in title, whether prior to or during the term of this Agreement, and whether by
Borrower or any predecessor in title or any employees, agents, contractors or
subcontractors thereof, or any third persons at any time occupying or present on
any Project, 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 Project. The foregoing
indemnity shall further apply to any residual contamination on, in, under or
about any Project, or affecting any natural resources, and to any contamination
of any Project 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 Project, the presence of which is caused by the
Administrative Agent or the Lenders. Borrower hereby acknowledges and agrees
that, notwithstanding any other provision of this Agreement or any of the other
Loan Documents to the contrary, the obligations of Borrower under this Section
(and under Sections 4.17 and 5.10) shall be unlimited corporate obligations of
Borrower and shall not be secured by any Lien on any Project. Any obligation or
liability of Borrower to any Indemnitee under this Section 11.22 shall survive
the expiration or termination of this Agreement and the
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repayment of all Loans and the payment and performance of all other Obligations
owed to the Lenders.
11.23 [Intentionally Omitted].
11.24 Removal of a Lender. Borrower shall have the right to remove a
Lender as a party to this Agreement if (a) such Lender is paid a material amount
by Borrower pursuant to Section 3.4 or Section 3.5, (b) any of the events
described in Section 9.1(j) occurs with respect to such Lender, or (c) such
Lender becomes (and at the time of the proposed removal hereunder remains) a
Defaulting Lender hereunder. Upon notice from Borrower, such Lender shall
execute and deliver a Commitments Assignment and Acceptance covering that
Lender's Percentage of the Commitments in favor of such Eligible Assignee as
Borrower 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 Lender through the date of assignment. The
removal of any Defaulting Lender pursuant to this Section 11.24 shall not
preclude Borrower from pursuing all remedies available to it against such
Defaulting Lender for damages arising out of such Defaulting Lender's breach
hereof.
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. BORROWER EXPRESSLY ACKNOWLEDGES 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. BORROWER AGREES THAT IT 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 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 Borrower 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 Borrower or, in the case of
any such mutilation, upon surrender and cancellation of the applicable Note,
Borrower 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.
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11.28 Defaulting Lenders. In the event that any Lender becomes a
Defaulting Lender, then, in addition to any rights and remedies that may be
available to Borrower or the other Lenders and the Administrative Agent (such
other Lenders and the Administrative Agent being called "Non Defaulting
Lenders") at Law or in equity:
(a) The Defaulting Lender'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 the Administrative
Agent (other than amendments to the Loan Documents directly affecting the
Defaulting Lender's Commitment), shall be suspended and such rights shall not be
reinstated unless and until such Lender ceases to be a Defaulting Lender (and
all decisions, except the decision to remove the Administrative Agent, which are
to be based on a vote of the Requisite Lenders or all Lenders shall be resolved
based upon a decision or determination made by the required percentage of the
Non-Defaulting Lenders); provided, however, that if the Administrative Agent is
a Defaulting Lender, the Administrative Agent shall continue to have all rights
provided for in this Loan Agreement, as the Administrative Agent only, with
respect to the administration of the Loan unless it is removed and replaced as
the Administrative Agent as provided in Section 10.8.
(b) Any or all of the Non-Defaulting Lenders shall be entitled (but
shall not be obligated) to: (i) fund the aggregate amount that the Defaulting
Lender has failed to fund or pay to the 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 Borrower on
the Defaulted Amount from time to time), either directly from the Defaulting
Lender or from amounts otherwise payable to the Defaulting Lender, for the
period from the date on which the Defaulted Amount was funded by the
Non-Defaulting Lenders until the date on which payment is made. If the
Administrative Agent has funded the Defaulted Amount, the Administrative Agent
shall be entitled to collect interest at the Default Rate from the Defaulting
Lender on the Defaulted Amount as set forth above, as if the Administrative
Agent were a Non-Defaulting Lender that had elected to fund the Defaulted
Amount.
(c) In the event the Defaulted Amount is funded by any
Non-Defaulting Lenders or the Administrative Agent pursuant to Section 11.28(b)
above, the Defaulting Lender's interest in the Loans, the Loan Documents and
proceeds thereof shall be subordinated to any Defaulted Amount funded by any
Non-Defaulting Lenders or the Administrative Agent pursuant to Section 11.28(b)
above, plus all interest which may be due in accordance with Section 11.28(b)
above (to be applied pari passu among the Non-Defaulting Lenders (including the
Administrative Agent, unless the Administrative Agent is the Defaulting Lender)
funding the Defaulted Amount), without necessity for executing any further
documents; provided that such Defaulting Lender'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 Lenders or the 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 Lenders (including the
Administrative Agent, unless the Administrative Agent is the Defaulting Lender)
which 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
Lenders, the Administrative Agent or the Defaulting Lender ("Unfunded Defaulted
Amount"), then a portion of the Defaulting Lender's interest in the Loan, the
Loan Documents and
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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 Lenders (including the Administrative Agent,
unless the Administrative Agent is the Defaulting Lender) unless and until such
Unfunded Defaulted Amount is funded either by one or more Non -Defaulting
Lenders, the Administrative Agent or the Defaulting Lender.
(e) Subject to the provisions of Section 11.8 and the definition of
Eligible Assignee, each Non-Defaulting Lender 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 Lenders that elect to acquire a share
of the Defaulting Lender's Commitment) of the Defaulting Lender's Commitment,
including without limitation its proportionate share in the outstanding
principal balance of the Loan, and all rights and interests of the Defaulting
Lender under this Agreement and the other Loan Documents.
(f) Nothing herein contained shall be deemed or construed to waive,
diminish, limit, prevent or estop the Administrative Agent, Borrower or any
Lender 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 Lender (including the right to bring suit against the
Defaulting Lender 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 Borrower or any other Loan Party therefrom, may in any event be
effective unless in writing signed by the Requisite Lenders (and, in the case
of any amendment, modification or supplement of or to any Loan Document to
which Borrower or any other Loan Party 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 Lenders, 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 Percentage of any Lender
or the amount of any commitment fee payable to any Lender, or any other fee or
amount payable to any Lender under the Loan Documents or to waive an Event of
Default consisting of the failure of Borrower 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;
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(c) To amend the provisions of the definition of "Requisite Lenders"
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 Lenders to require a lesser number of
Lenders to approve such action;
(f) To release Borrower or any Guarantor or any Collateral except as
specifically provided in Article 2A in connection with the release of a Subject
Property from the Security Documents and any related Subject Property Owner from
the Subsidiary Guaranty; or
(g) To change the manner of distribution of any payments to the
Lenders or the Administrative Agent.
No amendment, modification, supplement, extension, termination or waiver
or consent may be effective to require a Lender to fund more than its
Percentage of a Request for an Advance, without the approval of any Lender
affected thereby. 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 Lenders and the Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Secured Term Loan
Agreement to be duly executed as of the date first above written.
BORROWER:
BIOMED REALTY, L.P., a Maryland limited
partnership
By: BioMed Realty Trust, Inc., its sole general
partner
By: /s/ Xxxx X. Xxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxx
--------------------------
Title: Executive Vice President
-------------------------
Address:
BioMed Realty, LP
00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
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ADMINISTRATIVE AGENT:
KEYBANK NATIONAL ASSOCIATION, a
national banking association, as Administrative Agent
By: /s/ Xxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxx
------------------------------------------------
Title: Vice President
-----------------------------------------------
Address:
KeyBank - Real Estate Capital
127 Public Square - 8th Floor
Mail Code: OH-01-27-0839
Xxxxxxxxx, Xxxx 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxx Xxxxxx
BANKS:
KEYBANK NATIONAL ASSOCIATION, a
national banking association
By: /s/ Xxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxx
------------------------------------------------
Title: Vice President
-----------------------------------------------
Address:
KeyBank - Real Estate Capital
127 Public Square - 8th Floor
Mail Code: OH-01-27-0839
Xxxxxxxxx, Xxxx 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxx Xxxxxx
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U.S. BANK NATIONAL ASSOCIATION, a national banking
association
By: /s/ Xxxx X. Xxxxxxx
______________________________________________
Name: Xxxx X. Xxxxxxx
______________________________________________
Title: Senior Vice President
______________________________________________
By: /s/ Xxxx X. Xxxxxxx
______________________________________________
Name: Xxxx X. Xxxxxxx
______________________________________________
Title: Senior Vice President
______________________________________________
Address:
Commercial Real Estate
0000 XxXxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone: 000-000-000
Facsimile: 000-000-0000
Attn: Xxxx X. Xxxxxxx, Senior Vice President
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SOCIETE GENERALE
By: /s/ X. X. Xxxxxxxxxxx
______________________________________________
Name: X. X. Xxxxxxxxxxx
______________________________________________
Title: Director
______________________________________________
Address:
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxx Xxxxxxxxxxx
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COMMERZBANK, AG
By: /s/ Xxxxxxxxx Xxxxx
-------------------------------------------------
Name: Xxxxxxxxx Xxxxx
-----------------------------------------------
Title: Vice President
----------------------------------------------
By: /s/ Xxxxx Xxxxx
-------------------------------------------------
Name: Xxxxx Xxxxx
-----------------------------------------------
Title: Assistant Treasurer
----------------------------------------------
Address:
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: __________________________________________
Facsimile: __________________________________________
Attn: Xxxxx Xxxxx, Assistant Treasurer
Attn: Xxxxxxxxx Xxxxx, Vice President
- 80 -
COMPASS BANK, an Alabama banking corporation
By: /s/ Xxxxxxx Xxxx Xxxxx
_________________________________________________
Name: Xxxxxxx Xxxx Xxxxx
_______________________________________________
Title: Senior Vice President
______________________________________________
Address:
00 Xxxxx 00xx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xx Xxxxx, Senior Vice President
- 81 -
ALLIED IRISH BANKS, P.L.C.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------------------
Title: Vice President
----------------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------------------------
Title: Vice President
----------------------------------------------
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxxxx X. Xxxxxx
Attn: Xxxxx Xxxxxx
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XXXXXXX XXXXX BANK, FSB
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------------------
Title: Senior Vice President
----------------------------------------------
Address:
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxxxx X. Xxxxxx Xx.
- 83 -
