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EXHIBIT 10.2
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT is made as of the 15th day of March, 1996,
by and among XXXXXXX REAL ESTATE, INC., a Maryland corporation and XXXXXXX
OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership, each having its
principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
and certain Subsidiaries which become parties hereto (jointly and severally, the
"Borrower"), and THE FIRST NATIONAL BANK OF BOSTON, a national banking
association ("FNBB"), and the other lending institutions which become parties
hereto (the "Banks"); and THE FIRST NATIONAL BANK OF BOSTON, as agent for itself
and such other Banks.
[Section] 1. DEFINITIONS AND RULES OF INTERPRETATION.
[Section] 1.1 DEFINITIONS. The following terms shall have the meanings set
forth in this ss.1 or elsewhere in the provisions of this Agreement referred to
below:
AGENT. The First National Bank of Boston or any permitted successor agent
acting as agent for the Banks.
AGENT'S HEAD OFFICE. The Agent's head office located at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other location as the Agent may
designate from time to time.
AGENT'S SPECIAL COUNSEL. Xxxxxxx, Xxxx & Xxxxx, or such other counsel as
may be approved by the Agent.
AGREEMENT. This Revolving Credit Agreement, including the SCHEDULES and
EXHIBITS hereto, as any of the same may hereafter be modified, supplemented or
amended from time to time.
ANNUAL CAPITAL EXPENDITURE RESERVE. For any period, the amount set forth on
EXHIBIT H with respect to such period.
APPLICABLE MARGIN. The applicable margin over the then Eurodollar Rate or
LIBOR Rate, as applicable to the Loan(s) in question, as set forth below used in
calculating the interest rate applicable to Eurodollar Rate Loans and LIBOR Rate
Loans, which shall vary from time to time in accordance with the Borrower's long
term unsecured debt ratings (or, if applicable, Borrower's Indicative Rating).
The Applicable Margin to be used in calculating the interest rate applicable to
Eurodollar Rate or LIBOR Rate Loans shall vary from time to time in accordance
with the Borrower's then applicable (x) Xxxxx'x debt rating or (y) S&P's debt
rating, as the case may be, and the Applicable Margins shall be adjusted
effective on the next Business Day following any change in Borrower's Xxxxx'x
debt rating or S&P's debt rating, as the case may be for Loans arising
thereafter. In the event that only one of Xxxxx'x or S&P has set Borrower's
credit rating, then the Applicable Margin shall be based on such rating only. In
the event that the Borrower has then current ratings from S&P and Xxxxx'x and
neither of such ratings is lower than BBB- and Baa3, respectively, then the
Applicable Margin shall be based upon the average of such ratings. In the event
that the Borrower has then current ratings from S&P and Xxxxx'x, and one or both
of such ratings is lower than BBB- or Baa3, as applicable, then the Applicable
Margin shall be based upon the lower of such ratings. The applicable debt
ratings and the Applicable Margins are set forth in the following table:
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APPLICABLE
APPLICABLE MARGIN
MARGIN FOR LIBOR FOR EURODOLLAR RATE
S&P RATING XXXXX'X RATING RATE LOANS LOANS
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A OR HIGHER A2 OR HIGHER 1.250% 1.250%
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BBB+ TO A- BAA1 TO A3 1.375% 1.375%
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BBB- TO BBB BAA3 TO BAA2 1.500% 1.500%
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LESS THAN BBB- LESS THAN BAA3 1.750% 1.750%
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IF A RATING AGENCY DOWNGRADE
OR DISCONTINUANCE RESULTS IN AN INCREASE IN THE APPLICABLE MARGIN FOR EURODOLLAR
RATE LOANS OR THE APPLICABLE MARGIN FOR LIBOR RATE LOANS AND IF SUCH DOWNGRADE
OR DISCONTINUANCE IS REVERSED AND THE AFFECTED APPLICABLE MARGIN IS RESTORED
WITHIN NINETY (90) DAYS THEREAFTER TO THE APPLICABLE MARGIN IN EFFECT
IMMEDIATELY PRIOR TO SUCH DOWNGRADE OR DISCONTINUANCE, THEN, AT BORROWER'S
REQUEST, BORROWER SHALL RECEIVE A CREDIT AGAINST INTEREST NEXT DUE THE BANKS
EQUAL TO INTEREST ACCRUED FROM TIME TO TIME DURING SUCH PERIOD OF DOWNGRADE OR
DISCONTINUANCE ON THE LOANS AT THE DIFFERENTIAL BETWEEN SUCH APPLICABLE MARGINS.
UNTIL SUCH TIME AS THE BORROWER
OBTAINS LONG-TERM UNSECURED DEBT RATINGS (OR INDICATIVE RATING, AS APPLICABLE)
FROM EITHER S&P OR XXXXX'X, THE APPLICABLE MARGIN FOR EURODOLLAR RATE LOANS AND
LIBOR RATE LOANS SHALL BE 1.75%; PROVIDED THAT IF DURING SUCH PERIOD PRIOR TO
THE OBTAINING OF LONG-TERM UNSECURED DEBT RATINGS THE FINANCIAL STATEMENTS
DELIVERED BY THE BORROWER PURSUANT TO [SECTION] 7.4 INDICATE THAT THE
CONSOLIDATED OUTSTANDING INDEBTEDNESS AS AT THE END OF ANY FISCAL QUARTER OF
THE BORROWER IS LESS THAN OR EQUAL TO 40% OF CONSOLIDATED MARKET VALUE AS AT
THE END OF SUCH FISCAL QUARTER, THEN, EFFECTIVE FROM THE FIRST DAY AFTER
RECEIPT OF SUCH FINANCIAL STATEMENTS UNTIL THE EARLIER OF THE DELIVERY OF THE
NEXT FINANCIAL STATEMENTS PURSUANT TO [SECTION] 7.4 OR THE BORROWER'S OBTAINING
SUCH LONG-TERM UNSECURED DEBT RATINGS, THE APPLICABLE MARGIN FOR EURODOLLAR
RATE LOANS AND LIBOR RATE LOANS SHALL BE 1.625%. THE AGENT ACKNOWLEDGES THAT,
AS OF THE CLOSING DATE, THE APPLICABLE MARGIN FOR EURODOLLAR RATE LOANS AND
LIBOR RATE LOANS IS 1.75%.
ASSETS UNDER DEVELOPMENT.
AS OF ANY DATE OF DETERMINATION, THE TOTAL BOOK VALUE (AS DETERMINED BY
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES) OF LAND (AND ANY BUILDINGS TO THE
EXTENT CONSTRUCTED THEREON) WHOLLY-OWNED BY THE BORROWER OR ITS SUBSIDIARIES
WHICH IS CURRENTLY UNDER DEVELOPMENT. AS USED HEREIN, "CURRENTLY UNDER
DEVELOPMENT" SHALL MEAN THAT THE BORROWER OR ITS SUBSIDIARIES IS ACTIVELY
PURSUING CONSTRUCTION OF BUILDINGS, AND SUCH CONSTRUCTION IS PROCEEDING TO
COMPLETION WITHOUT UNDUE DELAY FROM PERMIT DENIAL, CONSTRUCTION DELAYS OR
OTHERWISE.
ASSIGNMENT AND ACCEPTANCE.
SEE [SECTION] 18.1.
BALANCE SHEET DATE. SEPTEMBER
30, 1995.
BANKS. FNBB AND THE OTHER
LENDING INSTITUTIONS LISTED FROM TIME TO TIME ON SCHEDULE 1 HERETO WHO BECOME
SIGNATORIES TO THIS AGREEMENT, ANY OTHER PERSON WHO IS AN ELIGIBLE ASSIGNEE AND
BECOMES AN ASSIGNEE OF ANY RIGHTS OF A BANK PURSUANT TO [SECTION] 18 AND
BECOMES A SIGNATORY TO THIS AGREEMENT OR ANY PERSON WHO ACQUIRES ALL OR
SUBSTANTIALLY ALL OF THE STOCK OR ASSETS OF A BANK.
BASE RATE. THE ANNUAL RATE
OF INTEREST ANNOUNCED FROM TIME TO TIME BY FNBB AT THE AGENT'S HEAD OFFICE AS
ITS "BASE RATE".
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BASE RATE LOANS. THOSE LOANS
BEARING INTEREST CALCULATED BY REFERENCE TO THE BASE RATE.
BORROWER. AS DEFINED IN THE
PREAMBLE HERETO.
BUILDINGS. THE BUILDINGS,
STRUCTURES AND OTHER IMPROVEMENTS NOW OR HEREAFTER LOCATED ON THE REAL ESTATE.
BUSINESS DAY. ANY DAY ON
WHICH ALL OF THE BANKS ARE OPEN FOR THE TRANSACTION OF BANKING BUSINESS AND, IN
THE CASE OF EURODOLLAR RATE LOANS, ALSO A DAY WHICH IS A EURODOLLAR BUSINESS
DAY, AND IN THE CASE OF LIBOR RATE LOANS, ALSO A DAY WHICH IS A LIBOR BUSINESS
DAY.
BUSINESS PLAN SUMMARY. A
STATEMENT PREPARED AS OF THE DATE HEREOF BY THE BORROWER AND REASONABLY
SATISFACTORY TO THE AGENT, SPECIFYING, AMONG OTHER THINGS, (I) THE INTENDED
OPERATIONS AND TYPE OF REAL ESTATE INVESTMENT TRUST OF THE BORROWER, (II) THE
SHORT AND LONG TERM GOALS OF THE BORROWER WITH RESPECT TO GROWTH AND INCOME AND
(III) THE REAL ESTATE ASSET ACQUISITION STRATEGY OF THE BORROWER. A TRUE AND
ACCURATE COPY OF THE BUSINESS PLAN SUMMARY IS ATTACHED AS SCHEDULE 1.1. BORROWER
SHALL HAVE THE RIGHT TO UPDATE THE BUSINESS PLAN SUMMARY FROM TIME TO TIME WITH
THE PRIOR CONSENT OF THE BANKS, WHICH WILL NOT BE UNREASONABLY WITHHELD SO LONG
AS THE BASIC OPERATIONS OF, TYPE OF REAL ESTATE OWNED BY, AND TYPE OF REAL
ESTATE INVESTMENT TRUST OF THE BORROWER DO NOT CHANGE.
CAPITAL STOCK. ALL SHARES,
INTERESTS, PARTICIPATIONS, OR OTHER EQUIVALENTS (HOWEVER DESIGNATED) OF CAPITAL
STOCK OF A CORPORATION, ANY AND ALL EQUIVALENT LEGAL AND BENEFICIAL OWNERSHIP
INTERESTS IN A PERSON WHICH IS NOT A CORPORATION AND ANY AND ALL WARRANTS OR
OPTIONS TO PURCHASE ANY OF THE FOREGOING.
CAPITALIZATION RATE. TEN AND
ONE-HALF PERCENT (10.5%).
CAPITALIZED LEASES. LEASES
UNDER WHICH THE BORROWER IS THE LESSEE OR OBLIGOR, THE DISCOUNTED FUTURE RENTAL
PAYMENT OBLIGATIONS UNDER WHICH ARE REQUIRED TO BE CAPITALIZED ON THE BALANCE
SHEET OF THE BORROWER IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES.
CASH EQUIVALENTS. THOSE
INVESTMENTS DESCRIBED IN [SECTION] 8.3(A), (B) AND (C) HEREOF.
CERCLA. SEE [SECTION] 6.18.
CLOSING DATE. THE FIRST DATE
ON WHICH THE CONDITIONS SPECIFIED IN [SECTION] 10 HEREOF HAVE BEEN SATISFIED OR
WAIVED IN WRITING BY THE BANKS.
CODE. THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED AND IN EFFECT FROM TIME TO TIME.
COMMITMENT. WITH RESPECT
TO EACH BANK, THE AMOUNT SET FORTH FROM TIME TO TIME ON SCHEDULE 1.2 HERETO
AS THE AMOUNT OF SUCH BANK'S
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COMMITMENT TO MAKE LOANS TO, AND TO PARTICIPATE IN THE ISSUANCE, EXTENSION AND
RENEWAL OF LETTERS OF CREDIT FOR THE ACCOUNT OF, THE BORROWER.
COMMITMENT PERCENTAGE. WITH
RESPECT TO EACH BANK, THE PERCENTAGE SET FORTH FROM TIME TO TIME ON SCHEDULE 1.2
HERETO AS SUCH BANK'S PERCENTAGE OF THE TOTAL COMMITMENT.
COMPLIANCE CERTIFICATE. A
STATEMENT IN THE FORM OF EXHIBIT C ATTACHED HERETO SIGNED BY THE PRINCIPAL
FINANCIAL OR ACCOUNTING OFFICER OF XXXXXXX REAL ESTATE, INC. SETTING FORTH IN
REASONABLE DETAIL COMPUTATIONS EVIDENCING COMPLIANCE WITH THE COVENANTS
CONTAINED IN [SECTION] 9.1 THROUGH 9.7 HEREOF, AND SUCH OTHER MATTERS REQUIRED
BY THE TERMS OF THIS AGREEMENT. IN ADDITION, ANY COMPLIANCE CERTIFICATES
SUBMITTED TO THE AGENT HEREUNDER SHALL GIVE EFFECT TO ANY TRANSACTIONS FOR
WHICH A COMPLIANCE CERTIFICATE IS THEN CURRENTLY PENDING.
CONSOLIDATED OR CONSOLIDATED.
WITH REFERENCE TO ANY TERM DEFINED HEREIN, SHALL MEAN THE TERM AS APPLIED TO THE
ACCOUNTS OF THE BORROWER AND ITS SUBSIDIARIES, CONSOLIDATED IN ACCORDANCE WITH
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES.
CONSOLIDATED CAPITALIZATION
VALUE. AN AMOUNT EQUAL TO CONSOLIDATED CASH FLOW FOR THE MOST RECENT PERIOD OF
TWO (2) CONSECUTIVE COMPLETED FISCAL QUARTERS MULTIPLIED BY 2, WITH THE PRODUCT
BEING DIVIDED BY THE CAPITALIZATION RATE.
CONSOLIDATED CASH FLOW. FOR
ANY PERIOD, AN AMOUNT EQUAL TO THE SUM OF (a) FUNDS FROM OPERATIONS FOR SUCH
PERIOD PLUS (b) CONSOLIDATED TOTAL INTEREST EXPENSE FOR SUCH PERIOD PLUS (c)
GENERAL AND ADMINISTRATIVE EXPENSES FOR SUCH PERIOD.
CONSOLIDATED DEBT SERVICE. FOR
ANY PERIOD, (a) CONSOLIDATED TOTAL INTEREST EXPENSE FOR SUCH PERIOD PLUS (b) THE
AGGREGATE AMOUNT OF SCHEDULED PRINCIPAL PAYMENTS OF INDEBTEDNESS (EXCLUDING
OPTIONAL PREPAYMENTS AND SCHEDULED PRINCIPAL PAYMENTS IN RESPECT OF ANY
INDEBTEDNESS WHICH IS NOT AMORTIZED THROUGH EQUAL PERIODIC INSTALLMENTS OF
PRINCIPAL AND INTEREST OVER THE TERM OF SUCH INDEBTEDNESS, INCLUDING, WITHOUT
LIMITATION, BALLOON PAYMENTS AT MATURITY) REQUIRED TO BE MADE DURING SUCH PERIOD
BY THE BORROWER AND ANY OF ITS SUBSIDIARIES.
CONSOLIDATED MARKET VALUE.
AS OF ANY DATE, AN AMOUNT EQUAL TO THE SUM OF (a) THE CONSOLIDATED
CAPITALIZATION VALUE AS OF SUCH DATE, PLUS (b) 100% OF THE VALUE OF
UNRESTRICTED CASH AND CASH EQUIVALENTS (EXCLUDING, UNTIL FORFEITED OR
OTHERWISE ENTITLED TO BE RETAINED BY BORROWER OR ITS SUBSIDIARIES, TENANT
SECURITY AND OTHER RESTRICTED DEPOSITS), PLUS (c) 100% OF THE VALUE OF ASSETS
UNDER DEVELOPMENT.
CONSOLIDATED NET INCOME. THE
CONSOLIDATED NET INCOME (BEFORE DEDUCTION FOR INCOME ALLOCATED TO MINORITY
INTERESTS OF XXXXXXX OPERATING LIMITED PARTNERSHIP) OF THE BORROWER AND ITS
SUBSIDIARIES, AFTER DEDUCTION OF ALL EXPENSES, TAXES, AND OTHER PROPER CHARGES,
DETERMINED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, AFTER
ELIMINATING THEREFROM ALL EXTRAORDINARY NONRECURRING ITEMS OF INCOME.
CONSOLIDATED NET OPERATING
INCOME. WITH RESPECT TO ONE OR MORE REAL ESTATE ASSETS, AS APPLICABLE,
CONSOLIDATED NET INCOME FOR SUCH REAL ESTATE ASSETS, BUT BEFORE PAYMENT OR
PROVISION FOR INTEREST EXPENSE OR OTHER DEBT SERVICE CHARGES AND ANY NON-CASH
CHARGES SUCH AS DEPRECIATION OR AMORTIZATION OF FINANCING COSTS RELATING TO SUCH
REAL ESTATE ASSETS.
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CONSOLIDATED NET WORTH. AS
OF ANY DATE OF DETERMINATION, THE CONSOLIDATED MARKET VALUE MINUS CONSOLIDATED
OUTSTANDING INDEBTEDNESS.
CONSOLIDATED OUTSTANDING
INDEBTEDNESS. AS OF ANY DATE OF DETERMINATION, ALL INDEBTEDNESS OF THE BORROWER
AND ITS SUBSIDIARIES AS OF SUCH DATE DETERMINED ON A CONSOLIDATED BASIS IN
ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES.
CONSOLIDATED SECURED
INDEBTEDNESS. AS OF ANY DATE OF DETERMINATION, THE SUM OF THE FOLLOWING
INDEBTEDNESS, WITHOUT DUPLICATION: (a) THE AGGREGATE PRINCIPAL AMOUNT OF ALL
INDEBTEDNESS OF THE BORROWER AND ITS SUBSIDIARIES OUTSTANDING AT SUCH DATE
SECURED BY A LIEN ON PROPERTIES OF THE BORROWER OR ITS SUBSIDIARIES, WITHOUT
REGARD TO RECOURSE, PLUS (b) THE AGGREGATE PRINCIPAL AMOUNT OF ALL UNSECURED
INDEBTEDNESS OF THE SUBSIDIARIES (OTHER THAN XXXXXXX OPERATING LIMITED
PARTNERSHIP) OF THE BORROWER OVER $5,000,000.
CONSOLIDATED TOTAL INTEREST
EXPENSE. FOR ANY PERIOD, THE AGGREGATE AMOUNT OF INTEREST REQUIRED TO BE PAID OR
ACCRUED BY THE BORROWER AND ITS SUBSIDIARIES DURING SUCH PERIOD ON ALL
INDEBTEDNESS OF THE BORROWER AND ITS SUBSIDIARIES OUTSTANDING DURING ALL OR ANY
PART OF SUCH PERIOD, WHETHER SUCH INTEREST WAS OR IS REQUIRED TO BE REFLECTED AS
AN ITEM OF EXPENSE OR CAPITALIZED, INCLUDING PAYMENTS CONSISTING OF INTEREST IN
RESPECT OF CAPITALIZED LEASES AND INCLUDING COMMITMENT FEES, AGENCY FEES,
FACILITY FEES, BALANCE DEFICIENCY FEES AND SIMILAR FEES OR EXPENSES IN
CONNECTION WITH THE BORROWING OF MONEY.
CONSOLIDATED UNENCUMBERED
ASSET CASH FLOW. CONSOLIDATED NET OPERATING INCOME FOR EACH UNENCUMBERED ASSET
MINUS THE ANNUAL CAPITAL EXPENDITURE RESERVE FOR SUCH UNENCUMBERED ASSET.
CONSOLIDATED UNSECURED DEBT
SERVICE CHARGES. FOR ANY PERIOD, AN AMOUNT DETERMINED BY THE AGENT BASED ON A
TWENTY-FIVE (25) YEAR MORTGAGE STYLE AMORTIZATION SCHEDULE, CALCULATED ON THE
AVERAGE AMOUNT OF CONSOLIDATED UNSECURED INDEBTEDNESS OUTSTANDING DURING SUCH
PERIOD AT AN INTEREST RATE EQUAL TO THE GREATER OF (i) THE ACTUAL INTEREST RATE
IN EFFECT AT THE END OF SUCH FISCAL PERIOD FOR EACH ITEM OF CONSOLIDATED
UNSECURED INDEBTEDNESS AND (ii) AN INTEREST RATE EQUAL TO THE THEN CURRENT TEN
YEAR U.S. TREASURY XXXX YIELD PLUS TWO PERCENT (2.0%).
CONSOLIDATED UNSECURED
INDEBTEDNESS. AS OF ANY DATE OF DETERMINATION, THE AGGREGATE PRINCIPAL AMOUNT OF
ALL UNSECURED INDEBTEDNESS OF THE BORROWER AND ITS SUBSIDIARIES OUTSTANDING AT
SUCH DATE, INCLUDING WITHOUT LIMITATION ALL THE OBLIGATIONS UNDER THIS AGREEMENT
AS OF SUCH DATE, DETERMINED ON A CONSOLIDATED BASIS IN ACCORDANCE WITH GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES.
CONVERSION REQUEST. A NOTICE
GIVEN BY THE BORROWER TO THE AGENT OF ITS ELECTION TO CONVERT OR CONTINUE A LOAN
IN ACCORDANCE WITH [SECTION] 2.6.
DEFAULT. AN EVENT OR ACT WHICH
WITH THE GIVING OF NOTICE AND/OR THE LAPSE OF TIME, WOULD BECOME AN EVENT OF
DEFAULT. NOTWITHSTANDING THE FOREGOING, ANY EVENT OR ACT WHICH CONSTITUTES A
NON-MATERIAL BREACH SHALL NOT BE A DEFAULT.
DISTRIBUTION. THE DECLARATION
OR PAYMENT OF ANY DISTRIBUTION OF CASH OR CASH EQUIVALENTS TO THE BENEFICIARIES
OR SHAREHOLDERS OF THE BORROWER IN RESPECT OF ANY SHARES OF BENEFICIAL INTEREST
OF THE BORROWER, OTHER THAN DISTRIBUTIONS PAYABLE SOLELY IN EQUITY SECURITIES OF
THE BORROWER; THE PURCHASE, REDEMPTION, EXCHANGE OR OTHER RETIREMENT OF ANY
SHARES OF BENEFICIAL
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INTEREST OF THE BORROWER, DIRECTLY OR INDIRECTLY THROUGH A SUBSIDIARY OF THE
BORROWER OR OTHERWISE; THE RETURN OF CAPITAL BY THE BORROWER TO ITS SHAREHOLDERS
AS SUCH; OR ANY OTHER DISTRIBUTION ON OR IN RESPECT OF ANY SHARES OF BENEFICIAL
INTEREST OF THE BORROWER.
DOLLARS OR $. DOLLARS IN LAWFUL
CURRENCY OF THE UNITED STATES OF AMERICA.
DOMESTIC LENDING OFFICE.
INITIALLY, THE OFFICE OF EACH BANK DESIGNATED AS SUCH IN SCHEDULE 1.3 HERETO;
THEREAFTER, SUCH OTHER OFFICE OF SUCH BANK, IF ANY, LOCATED WITHIN THE UNITED
STATES THAT WILL BE MAKING OR MAINTAINING BASE RATE LOANS.
DRAWDOWN DATE. THE DATE ON
WHICH ANY LOAN IS MADE OR IS TO BE MADE, AND THE DATE ON WHICH ANY LOAN IS
CONVERTED OR CONTINUED IN ACCORDANCE WITH [SECTION] 2.6.
EFFECTIVE DATE. THE DATE UPON
WHICH THIS AGREEMENT SHALL BECOME EFFECTIVE PURSUANT TO [SECTION] 10.
ELIGIBLE ASSIGNEE. ANY OF (a)
A COMMERCIAL BANK ORGANIZED UNDER THE LAWS OF THE UNITED STATES, OR ANY STATE
THEREOF OR THE DISTRICT OF COLUMBIA, AND HAVING TOTAL ASSETS IN EXCESS OF
$5,000,000,000; AND (b) A COMMERCIAL BANK ORGANIZED UNDER THE LAWS OF ANY OTHER
COUNTRY WHICH IS A MEMBER OF THE ORGANIZATION FOR ECONOMIC COOPERATION AND
DEVELOPMENT (THE "OECD"), OR A POLITICAL SUBDIVISION OF ANY SUCH COUNTRY, AND
HAVING TOTAL ASSETS IN EXCESS OF $5,000,000,000, PROVIDED THAT SUCH BANK IS
ACTING THROUGH A BRANCH OR AGENCY LOCATED IN THE COUNTRY IN WHICH IT IS
ORGANIZED OR ANOTHER COUNTRY WHICH IS ALSO A MEMBER OF THE OECD.
EMPLOYEE BENEFIT PLAN. ANY
EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF [SECTION] 3(3) OF ERISA MAINTAINED
OR CONTRIBUTED TO BY THE BORROWER OR ANY ERISA AFFILIATE, OTHER THAN A
MULTIEMPLOYER PLAN.
ENVIRONMENTAL LAWS. SEE
[SECTION] 6.18(a).
ERISA. THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED AND IN EFFECT FROM TIME TO
TIME.
ERISA AFFILIATE. ANY PERSON
WHICH IS TREATED AS A SINGLE EMPLOYER WITH THE BORROWER UNDER [SECTION] 414 OF
THE CODE.
ERISA REPORTABLE EVENT. A
REPORTABLE EVENT WITH RESPECT TO A GUARANTEED PENSION PLAN WITHIN THE MEANING OF
[SECTION] 4043 OF ERISA AND THE REGULATIONS PROMULGATED THEREUNDER AS TO WHICH
THE REQUIREMENT OF NOTICE HAS NOT BEEN WAIVED.
EUROCURRENCY RESERVE RATE.
FOR ANY DAY WITH RESPECT TO A EURODOLLAR RATE LOAN OR LIBOR RATE LOAN, THE
MAXIMUM RATE (EXPRESSED AS A DECIMAL) AT WHICH ANY BANK SUBJECT THERETO WOULD BE
REQUIRED TO MAINTAIN RESERVES UNDER REGULATION D OF THE BOARD OF GOVERNORS OF
THE FEDERAL RESERVE SYSTEM (OR ANY SUCCESSOR OR SIMILAR REGULATIONS RELATING TO
SUCH RESERVE REQUIREMENTS) AGAINST "EUROCURRENCY LIABILITIES" (AS THAT TERM IS
USED IN REGULATION D), IF SUCH LIABILITIES WERE OUTSTANDING. THE EUROCURRENCY
RESERVE RATE SHALL BE ADJUSTED AUTOMATICALLY ON AND AS OF THE EFFECTIVE DATE OF
ANY CHANGE IN THE EUROCURRENCY RESERVE RATE.
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EURODOLLAR BUSINESS DAY. ANY
DAY ON WHICH COMMERCIAL BANKS ARE OPEN FOR INTERNATIONAL BUSINESS (INCLUDING
DEALINGS IN DOLLAR DEPOSITS) IN LONDON OR SUCH OTHER EURODOLLAR INTERBANK MARKET
AS MAY BE SELECTED BY THE AGENT IN ITS SOLE DISCRETION ACTING IN GOOD FAITH.
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EURODOLLAR LENDING OFFICE.
INITIALLY, THE OFFICE OF EACH BANK DESIGNATED AS SUCH IN SCHEDULE 1.3 HERETO;
THEREAFTER, SUCH OTHER OFFICE OF SUCH BANK, IF ANY, THAT SHALL BE MAKING OR
MAINTAINING EURODOLLAR RATE LOANS.
EURODOLLAR RATE. FOR ANY
INTEREST PERIOD WITH RESPECT TO A EURODOLLAR RATE LOAN, THE RATE PER ANNUM EQUAL
TO THE QUOTIENT (ROUNDED UPWARDS TO THE NEAREST 1/16 OF ONE PERCENT) OF (a) THE
RATE AT WHICH THE AGENT IS OFFERED DOLLAR DEPOSITS TWO EURODOLLAR BUSINESS DAYS
PRIOR TO THE BEGINNING OF SUCH INTEREST PERIOD IN AN INTERBANK EURODOLLAR MARKET
WHERE THE EURODOLLAR AND FOREIGN CURRENCY AND EXCHANGE OPERATIONS OF THE AGENT
ARE CUSTOMARILY CONDUCTED FOR DELIVERY ON THE FIRST DAY OF SUCH INTEREST PERIOD
FOR THE NUMBER OF DAYS COMPRISED THEREIN AND IN AN AMOUNT COMPARABLE TO THE
AMOUNT OF THE EURODOLLAR RATE LOAN TO WHICH SUCH INTEREST PERIOD APPLIES,
DIVIDED BY (b) A NUMBER EQUAL TO 1.00 MINUS THE EUROCURRENCY RESERVE RATE.
EURODOLLAR RATE LOANS. LOANS
BEARING INTEREST CALCULATED BY REFERENCE TO THE EURODOLLAR RATE.
EVENT OF DEFAULT. SEE [SECTION] 12.1.
FNBB. SEE PREAMBLE.
FRONTING BANK MEANS ANY BANK
WHICH IS DESIGNATED BY BORROWER IN ITS LOAN REQUEST AS THE BANK WHICH SHALL
ISSUE THE LETTER OF CREDIT WITH RESPECT TO SUCH LOAN REQUEST; PROVIDED, THAT THE
FRONTING BANK SHALL BE FNBB UNLESS ANOTHER BANK HAS A HIGHER (I.E. MORE
FAVORABLE) S&P OR XXXXX'X CREDIT RATING.
FUNDS FROM OPERATIONS. FOR
ANY PERIOD COMMENCING ON OR AFTER JULY 1, 1996, CONSOLIDATED NET INCOME FOR SUCH
PERIOD (BEFORE DEDUCTION FOR INCOME ALLOCATED TO MINORITY INTERESTS OF XXXXXXX
OPERATING LIMITED PARTNERSHIP, DEPRECIATION, AMORTIZATION, EQUITY GAINS (LOSSES)
FROM EACH UNCONSOLIDATED JOINT VENTURE INCLUDED THEREIN AND OTHER NON- CASH
CHARGES EXCLUDING ANY AMORTIZATION OF DEFERRED FINANCE COSTS), LESS GAINS
(LOSSES) ON SALES OF PROPERTY, NON- RECURRING CHARGES AND EXTRAORDINARY ITEMS,
PLUS THE PROPORTIONATE SHARE OF FUNDS FROM OPERATIONS OF EACH UNCONSOLIDATED
JOINT VENTURE THAT IS RECEIVED BY THE BORROWER OR ANY SUBSIDIARY FOR SUCH
PERIOD, ALL DETERMINED ON A CONSISTENT BASIS. NOTWITHSTANDING ANYTHING CONTAINED
HEREIN TO THE CONTRARY, FUNDS FROM OPERATIONS FOR EACH OF THE QUARTERS ENDING
DECEMBER 31, 1995, MARCH 31, 1996, AND JUNE 30, 1996 RESPECTIVELY, SHALL BE
DETERMINED AS SET FORTH IN THE REGISTRATION STATEMENT AND SHALL EQUAL THE
QUOTIENT OF (i) THE SUM OF FUNDS FROM OPERATIONS FOR THE THREE FISCAL QUARTERS
OF 1995 SHOWN ON THE PRO FORMA CONSOLIDATED INCOME STATEMENT INCLUDED ON THE
REGISTRATION STATEMENT DIVIDED BY (ii) 3.
GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES OR GAAP. PRINCIPLES THAT ARE (a) CONSISTENT WITH THE PRINCIPLES
PROMULGATED OR ADOPTED BY THE FINANCIAL ACCOUNTING STANDARDS BOARD AND ITS
PREDECESSORS, AS IN EFFECT FROM TIME TO TIME AND (b) CONSISTENTLY APPLIED WITH
PAST FINANCIAL STATEMENTS OF THE BORROWER ADOPTING THE SAME PRINCIPLES; PROVIDED
THAT A CERTIFIED PUBLIC ACCOUNTANT WOULD, INSOFAR AS THE USE OF SUCH ACCOUNTING
PRINCIPLES IS PERTINENT, BE IN A POSITION TO DELIVER AN UNQUALIFIED OPINION
(OTHER THAN A QUALIFICATION REGARDING CHANGES IN GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES) AS TO FINANCIAL STATEMENTS IN WHICH SUCH PRINCIPLES HAVE BEEN
PROPERLY APPLIED.
GUARANTEED PENSION PLAN. ANY
EMPLOYEE PENSION BENEFIT PLAN WITHIN THE MEANING OF [SECTION] 3(2) OF ERISA
MAINTAINED OR CONTRIBUTED TO BY THE BORROWER OR ANY ERISA AFFILIATE THE
BENEFITS OF WHICH ARE GUARANTEED ON TERMINATION IN FULL OR IN PART BY THE
PBGC PURSUANT TO TITLE IV OF ERISA, OTHER THAN A MULTIEMPLOYER PLAN.
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HAZARDOUS SUBSTANCES. SEE
[SECTION] 6.18(B).
INDEBTEDNESS. ALL OF THE
FOLLOWING OBLIGATIONS WITHOUT DUPLICATION: (a) THE OBLIGATIONS TO THE EXTENT
OUTSTANDING FROM TIME TO TIME, (b) ALL DEBT AND SIMILAR MONETARY OBLIGATIONS FOR
BORROWED MONEY, WHETHER DIRECT OR INDIRECT; (c) ALL OTHER LIABILITIES FOR
BORROWED MONEY SECURED BY ANY LIEN EXISTING ON PROPERTY OWNED OR ACQUIRED
SUBJECT THERETO, WHETHER OR NOT THE LIABILITY SECURED THEREBY SHALL HAVE BEEN
ASSUMED; (d) REIMBURSEMENT OBLIGATIONS FOR LETTERS OF CREDIT, AND (e) ALL
GUARANTEES, ENDORSEMENTS AND OTHER CONTINGENT OBLIGATIONS FOR BORROWED MONEY
WHETHER DIRECT OR INDIRECT IN RESPECT OF INDEBTEDNESS OR OBLIGATIONS OF OTHERS.
INDICATIVE RATING. AN UNISSUED
LONG-TERM UNSECURED DEBT RATING PROVIDED TO THE BORROWER IN WRITING BY EITHER
XXXXX'X OR S&P WHICH RATING IS NO OLDER THAN TWO FISCAL QUARTERS.
INTEREST PAYMENT DATE. (i) AS
TO ANY BASE RATE LOAN, THE LAST DAY OF THE CALENDAR MONTH WHICH INCLUDES THE
DRAWDOWN DATE THEREOF; AND (ii) AS TO ANY EURODOLLAR RATE LOAN OR LIBOR RATE
LOAN IN RESPECT OF WHICH THE INTEREST PERIOD IS (a) 3 MONTHS OR LESS, THE LAST
DAY OF SUCH INTEREST PERIOD AND (b) MORE THAN 3 MONTHS, THE DATE THAT IS 3
MONTHS FROM THE FIRST DAY OF SUCH INTEREST PERIOD AND, IN ADDITION, THE LAST DAY
OF SUCH INTEREST PERIOD.
INTEREST PERIOD. WITH RESPECT
TO EACH LOAN, BUT WITHOUT DUPLICATION OF ANY OTHER INTEREST PERIOD, (a)
INITIALLY, THE PERIOD COMMENCING ON THE DRAWDOWN DATE OF SUCH LOAN AND ENDING ON
THE LAST DAY OF ONE OF THE PERIODS SET FORTH IN THE SUCCEEDING SUBCLAUSES, AS
SELECTED BY THE BORROWER IN A LOAN REQUEST (i) FOR ANY BASE RATE LOAN, THE LAST
DAY OF THE CALENDAR MONTH IN WHICH THE DRAWDOWN DATE OCCURS; (ii) FOR ANY
EURODOLLAR RATE LOAN, 1, 2, 3, 6 OR 12 MONTHS; AND (iii) FOR ANY LIBOR RATE
LOAN, 1, 2, 3, 6 OR 12 MONTHS AND (b) THEREAFTER, EACH PERIOD COMMENCING ON THE
LAST DAY OF THE NEXT PRECEDING INTEREST PERIOD APPLICABLE TO SUCH LOAN AND
ENDING ON THE LAST DAY OF ONE OF THE PERIODS SET FORTH ABOVE, AS SELECTED BY THE
BORROWER IN A CONVERSION REQUEST OR OTHERWISE DEEMED SELECTED BY BORROWER;
PROVIDED THAT ALL OF THE FOREGOING PROVISIONS RELATING TO INTEREST PERIODS ARE
SUBJECT TO THE FOLLOWING:
(A) IF ANY INTEREST PERIOD WITH RESPECT TO A EURODOLLAR RATE LOAN WOULD
OTHERWISE END ON A DAY THAT IS NOT A EURODOLLAR BUSINESS DAY, THAT INTEREST
PERIOD SHALL BE EXTENDED TO THE NEXT SUCCEEDING EURODOLLAR BUSINESS DAY UNLESS
THE RESULT OF SUCH EXTENSION WOULD BE TO CARRY SUCH INTEREST PERIOD INTO ANOTHER
CALENDAR MONTH, IN WHICH EVENT SUCH INTEREST PERIOD SHALL END ON THE IMMEDIATELY
PRECEDING EURODOLLAR BUSINESS DAY;
(B) IF ANY INTEREST PERIOD WITH RESPECT TO A LIBOR RATE LOAN WOULD
OTHERWISE END ON A DAY THAT IS NOT A LIBOR BUSINESS DAY, THAT INTEREST PERIOD
SHALL BE EXTENDED TO THE NEXT SUCCEEDING LIBOR BUSINESS DAY UNLESS THE RESULT OF
SUCH EXTENSION WOULD BE TO CARRY SUCH INTEREST PERIOD INTO ANOTHER CALENDAR
MONTH, IN WHICH EVENT SUCH INTEREST PERIOD SHALL END ON THE IMMEDIATELY
PRECEDING LIBOR BUSINESS DAY;
(C) IF ANY INTEREST PERIOD WITH RESPECT TO A BASE RATE LOAN WOULD END ON A
DAY THAT IS NOT A BUSINESS DAY, THAT INTEREST PERIOD SHALL END ON THE NEXT
SUCCEEDING BUSINESS DAY;
(D) IF THE BORROWER SHALL FAIL TO GIVE NOTICE AS PROVIDED IN [SECTION]
2.6, THE BORROWER SHALL BE DEEMED TO HAVE REQUESTED A CONVERSION OF THE AFFECTED
EURODOLLAR RATE LOAN OR LIBOR RATE LOAN TO A BASE RATE LOAN ON THE LAST DAY OF
THE THEN CURRENT INTEREST PERIOD WITH RESPECT THERETO;
(E) ANY INTEREST PERIOD RELATING TO ANY EURODOLLAR RATE LOAN THAT BEGINS ON
THE LAST EURODOLLAR BUSINESS DAY OF A CALENDAR MONTH (OR ON A DAY FOR WHICH
THERE IS NO NUMERICALLY CORRESPONDING DAY IN THE
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CALENDAR MONTH AT THE END OF SUCH INTEREST PERIOD) SHALL END ON THE LAST
EURODOLLAR BUSINESS DAY OF A CALENDAR MONTH; AND
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(F) ANY INTEREST PERIOD RELATING TO ANY LIBOR RATE LOAN THAT BEGINS ON THE
LAST LIBOR BUSINESS DAY OF A CALENDAR MONTH (OR ON A DAY FOR WHICH THERE IS NO
NUMERICALLY CORRESPONDING DAY IN THE CALENDAR MONTH AT THE END OF SUCH INTEREST
PERIOD) SHALL END ON THE LAST LIBOR BUSINESS DAY OF A CALENDAR MONTH; AND
(G) ANY INTEREST PERIOD RELATING TO ANY EURODOLLAR RATE LOAN OR LIBOR RATE
LOAN THAT WOULD OTHERWISE EXTEND BEYOND THE MATURITY DATE SHALL END ON THE
MATURITY DATE.
INVESTMENTS. ALL EXPENDITURES MADE AND ALL LIABILITIES INCURRED
(CONTINGENTLY OR OTHERWISE) FOR THE ACQUISITION OF CAPITAL STOCK OR TOTAL
INDEBTEDNESS OF, OR FOR LOANS, ADVANCES, CAPITAL CONTRIBUTIONS OR TRANSFERS OF
PROPERTY TO, OR IN RESPECT OF ANY GUARANTIES (OR OTHER COMMITMENTS AS DESCRIBED
UNDER TOTAL INDEBTEDNESS), OR OBLIGATIONS OF, ANY PERSON. IN DETERMINING THE
AGGREGATE AMOUNT OF INVESTMENTS OUTSTANDING AT ANY PARTICULAR TIME: (a) THE
AMOUNT OF ANY INVESTMENT REPRESENTED BY A GUARANTY SHALL BE TAKEN AT NOT LESS
THAN THE PRINCIPAL AMOUNT OF THE OBLIGATIONS GUARANTEED AND STILL OUTSTANDING;
(b) THERE SHALL BE INCLUDED AS AN INVESTMENT ALL INTEREST ACCRUED WITH RESPECT
TO TOTAL INDEBTEDNESS CONSTITUTING AN INVESTMENT UNLESS AND UNTIL SUCH INTEREST
IS PAID; (c) THERE SHALL BE DEDUCTED IN RESPECT OF EACH SUCH INVESTMENT ANY
AMOUNT RECEIVED AS A RETURN OF CAPITAL (BUT ONLY BY REPURCHASE, REDEMPTION,
RETIREMENT, REPAYMENT, LIQUIDATING DIVIDEND OR LIQUIDATING DISTRIBUTION); (d)
THERE SHALL NOT BE DEDUCTED IN RESPECT OF ANY INVESTMENT ANY AMOUNTS RECEIVED AS
EARNINGS ON SUCH INVESTMENT, WHETHER AS DIVIDENDS, INTEREST OR OTHERWISE, EXCEPT
THAT ACCRUED INTEREST INCLUDED AS PROVIDED IN THE FOREGOING CLAUSE (b) MAY BE
DEDUCTED WHEN PAID; AND (e) THERE SHALL NOT BE DEDUCTED FROM THE AGGREGATE
AMOUNT OF INVESTMENTS ANY DECREASE IN THE VALUE THEREOF.
LEASES. LEASES, LICENSES AND AGREEMENTS WHETHER WRITTEN OR ORAL, RELATING
TO THE USE OR OCCUPATION OF SPACE IN OR ON THE BUILDINGS OR ON THE REAL ESTATE
BY PERSONS OTHER THAN BORROWER.
LETTER OF CREDIT. SEE [SECTION] 2A.1.1.
LETTER OF CREDIT APPLICATION. SEE [SECTION] 2A.1.1.
LETTER OF CREDIT PARTICIPATION. SEE [SECTION] 2A.1.4.
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LIBOR BUSINESS DAY. ANY DAY ON WHICH COMMERCIAL BANKS ARE OPEN FOR INTERNATIONAL
BUSINESS (INCLUDING DEALINGS IN DOLLAR DEPOSITS) IN LONDON OR SUCH OTHER
EURODOLLAR INTERBANK MARKET AS MAY BE SELECTED BY THE AGENT IN ITS SOLE
DISCRETION ACTING IN GOOD FAITH.
LIBOR LENDING OFFICE. INITIALLY, THE OFFICE OF EACH BANK DESIGNATED AS SUCH
IN SCHEDULE 1.3 HERETO; THEREAFTER, SUCH OTHER OFFICE OF SUCH BANK, IF ANY, THAT
SHALL BE MAKING OR MAINTAINING LIBOR RATE LOANS.
LIBOR RATE. FOR ANY INTEREST PERIOD WITH RESPECT TO A LIBOR RATE LOAN, THE
RATE OF INTEREST EQUAL TO (i) THE RATE DETERMINED BY THE AGENT AT WHICH DOLLAR
DEPOSITS FOR SUCH INTEREST PERIOD ARE OFFERED BASED ON INFORMATION PRESENTED ON
TELERATE PAGE 3750 AS OF 11:00 A.M. LONDON TIME ON THE SECOND LIBOR BUSINESS DAY
PRIOR TO THE FIRST DAY OF SUCH INTEREST PERIOD, DIVIDED BY (ii) A NUMBER EQUAL
TO 1.00 MINUS THE EUROCURRENCY RESERVE RATE, IF APPLICABLE.
LIBOR RATE LOANS. LOANS BEARING INTEREST CALCULATED BY REFERENCE TO THE
LIBOR RATE.
LIEN. ANY LIEN, ENCUMBRANCE, MORTGAGE, PLEDGE, CHARGE, RESTRICTION,
PREFERENCE, PRIORITY OR OTHER SECURITY INTEREST OF ANY KIND OR NATURE (INCLUDING
THE PROHIBITION OR RESTRICTION ON ANY SECURITY INTEREST), INCLUDING, WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, THE TRANSFER OF ASSETS FOR THE PURPOSE
OF SUBJECTING THE SAME TO THE PAYMENT OF TOTAL INDEBTEDNESS OR PERFORMANCE OF
ANY OTHER OBLIGATION IN PRIORITY TO PAYMENT OF ITS GENERAL CREDITORS, OR ANY
CONDITIONAL SALE OR OTHER TITLE RETENTION OR PURCHASE MONEY SECURITY AGREEMENT,
DEVICE OR ARRANGEMENT.
LOAN DOCUMENTS. THIS AGREEMENT, THE NOTES, THE LETTER OF CREDIT
APPLICATIONS, THE LETTERS OF CREDIT, AND ANY AND ALL OTHER AGREEMENTS, DOCUMENTS
AND INSTRUMENTS EXECUTED AND DELIVERED BY BORROWER AND NOW OR HEREAFTER
EVIDENCING OR OTHERWISE RELATING TO THE LOANS.
LOAN REQUEST. SEE [SECTION] 2.5.
LOANS. LOANS MADE OR TO BE MADE BY THE BANKS TO THE BORROWER PURSUANT
TO [SECTION] 2.
MAJORITY BANKS. AS OF ANY DATE, THE BANKS HOLDING AT LEAST FIFTY-ONE
PERCENT (51%) OF THE OUTSTANDING PRINCIPAL AMOUNT OF THE NOTES ON SUCH DATE; AND
IF NO SUCH PRINCIPAL IS OUTSTANDING, THE BANKS WHOSE AGGREGATE COMMITMENTS
CONSTITUTE AT LEAST FIFTY-ONE PERCENT (51%) OF THE TOTAL COMMITMENT.
MATURITY DATE. MARCH 15, 1998, OR SUCH OTHER DATE ON WHICH THE LOANS SHALL
BECOME DUE AND PAYABLE PURSUANT TO THE TERMS HEREOF; PROVIDED THAT THE BORROWER
MAY, AT ITS OPTION, EXTEND THE MATURITY DATE FROM MARCH 15, 1998 (THE "ORIGINAL
MATURITY DATE") TO MARCH 15, 1999 IF: (a) THE BORROWER SUBMITS A WRITTEN REQUEST
FOR SUCH EXTENSION TO THE AGENT AT LEAST NINETY (90) DAYS PRIOR TO THE ORIGINAL
MATURITY DATE TOGETHER WITH AN EXTENSION FEE EQUAL TO ONE-QUARTER OF ONE PERCENT
(1/4%) OF THE TOTAL COMMITMENT, (b) NO DEFAULT OR EVENT OF DEFAULT EXISTS AS OF
THE ORIGINAL MATURITY DATE, AS EVIDENCED BY A CERTIFICATE FROM THE PRINCIPAL
FINANCIAL OR ACCOUNTING OFFICER OF THE BORROWER DELIVERED AT LEAST FIVE (5) DAYS
PRIOR TO THE ORIGINAL MATURITY DATE AND (c) THE BORROWER SHALL HAVE (x) A SENIOR
UNSECURED DEBT RATING (OR INDICATIVE RATING) OF AT LEAST BAA3 FROM MOODY'S OR A
SENIOR UNSECURED DEBT RATING (OR INDICATIVE RATING) OF AT LEAST BBB- FROM S&P,
EACH AS OF THE ORIGINAL MATURITY DATE, OR (xx) A SENIOR UNSECURED DEBT RATING
(OR INDICATIVE RATING) OF AT LEAST BAA3 FROM MOODY'S AND A SENIOR UNSECURED DEBT
RATING (OR INDICATIVE RATING) OF AT LEAST BBB- FROM S&P IF THE BORROWER SHALL
HAVE A RATING FROM BOTH SUCH AGENCIES.
MAXIMUM DRAWING AMOUNT. THE MAXIMUM AGGREGATE AMOUNT THAT THE BENEFICIARIES
MAY AT ANY TIME DRAW UNDER OUTSTANDING LETTERS OF CREDIT, AS SUCH AGGREGATE
AMOUNT MAY BE REDUCED FROM TIME TO TIME PURSUANT TO THE TERMS OF THE LETTERS OF
CREDIT.
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MOODY'S. XXXXX'X INVESTORS' SERVICE, INC. AND ITS SUCCESSORS.
MULTIEMPLOYER PLAN. ANY MULTIEMPLOYER PLAN WITHIN THE MEANING OF [SECTION]
3(37) OF ERISA MAINTAINED OR CONTRIBUTED TO BY THE BORROWER OR ANY ERISA
AFFILIATE.
NON-MATERIAL BREACH. A BREACH OF A REPRESENTATION OR WARRANTY OR AN
AFFIRMATIVE COVENANT SET FORTH IN [SECTION] 6 OR [SECTION] 7 OF THIS AGREEMENT
WHICH DOES NOT (a) MATERIALLY ADVERSELY AFFECT THE BUSINESS, PROPERTIES OR
FINANCIAL CONDITION OF THE BORROWER AND ITS SUBSIDIARIES TAKEN AS A WHOLE, OR
(b) MATERIALLY IMPAIR THE ABILITY OF THE BORROWER AND ITS SUBSIDIARIES, TAKEN
AS A WHOLE, TO FULFILL THE MATERIAL OBLIGATIONS TO THE BANKS UNDER THE LOANS
(INCLUDING WITHOUT LIMITATION THE REPAYMENT OF ALL AMOUNTS OUTSTANDING ON THE
LOANS, TOGETHER WITH INTEREST AND CHARGES THEREON WHEN DUE). NOTWITHSTANDING
THE FOREGOING, (i) IN THE EVENT OF A NON-MATERIAL BREACH WITH RESPECT TO A REAL
ESTATE ASSET WHICH IS OTHERWISE AN UNENCUMBERED ASSET, SUCH REAL ESTATE ASSET
SHALL NOT BE INCLUDED AS AN UNENCUMBERED ASSET FOR PURPOSES OF CALCULATING
FINANCIAL COVENANT COMPLIANCE PURSUANT TO [SECTION] 9 OF THIS AGREEMENT FOR SO
LONG AS SUCH BREACH SHALL EXIST; (ii) IN THE EVENT OF A NON-MATERIAL BREACH
WITH RESPECT TO A REAL ESTATE ASSET OF A SUBSIDIARY WHICH HAS A MATERIAL
ADVERSE EFFECT ON SUCH SUBSIDIARY BUT DOES NOT HAVE A MATERIAL ADVERSE EFFECT
ON THE OTHER REAL ESTATE ASSETS OF SUCH SUBSIDIARY, ONLY THE AFFECTED REAL
ESTATE ASSET SHALL NOT BE INCLUDED FOR PURPOSES OF CALCULATING FINANCIAL
COVENANT COMPLIANCE PURSUANT TO SS.9 OF THIS AGREEMENT FOR SO LONG AS SUCH
BREACH SHALL EXIST; AND (iii) IN THE EVENT OF A NON-MATERIAL BREACH WITH
RESPECT TO A SUBSIDIARY OR A REAL ESTATE ASSET OF A SUBSIDIARY WHICH HAS A
MATERIAL ADVERSE EFFECT ON SUCH SUBSIDIARY AND HAS A MATERIAL ADVERSE EFFECT ON
REAL ESTATE ASSETS OF SUCH SUBSIDIARY, ALL OF THE REAL ESTATE ASSETS OF SUCH
SUBSIDIARY SHALL NOT BE INCLUDED FOR PURPOSES OF CALCULATING FINANCIAL COVENANT
COMPLIANCE PURSUANT TO [SECTION] 9 OF THIS AGREEMENT FOR SO LONG AS SUCH BREACH
SHALL EXIST.
NOTES. SEE [SECTION] 2.3.
OBLIGATIONS. ALL INDEBTEDNESS, OBLIGATIONS AND LIABILITIES OF THE BORROWER
AND ANY OF ITS SUBSIDIARIES TO ANY OF THE BANKS AND THE AGENT, INDIVIDUALLY OR
COLLECTIVELY, UNDER THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR IN
RESPECT OF ANY OF THE LOANS MADE OR REIMBURSEMENT OBLIGATIONS INCURRED, OR THE
NOTES, LETTERS OF CREDIT OR OTHER INSTRUMENTS AT ANY TIME EVIDENCING ANY
THEREOF, WHETHER EXISTING ON THE DATE OF THIS AGREEMENT OR ARISING OR INCURRED
HEREAFTER, DIRECT OR INDIRECT, JOINT OR SEVERAL, ABSOLUTE OR CONTINGENT, MATURED
OR UNMATURED, LIQUIDATED OR UNLIQUIDATED, SECURED OR UNSECURED, ISSUED OR DRAWN,
ARISING BY CONTRACT, OPERATION OF LAW OF OTHERWISE.
OUTSTANDING. WITH RESPECT TO THE LOANS, THE AGGREGATE UNPAID PRINCIPAL
THEREOF AS OF ANY DATE OF DETERMINATION.
PBGC. THE PENSION BENEFIT GUARANTY CORPORATION CREATED BY [SECTION] 4002
OF ERISA AND ANY SUCCESSOR ENTITY OR ENTITIES HAVING SIMILAR RESPONSIBILITIES.
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PERMITS. ALL GOVERNMENTAL PERMITS, LICENSES, AND APPROVALS NECESSARY FOR
THE LAWFUL CONSTRUCTION, OPERATION AND MAINTENANCE OF THE REAL ESTATE.
PERMITTED LIENS. LIENS, SECURITY INTERESTS AND OTHER ENCUMBRANCES PERMITTED
BY [SECTION] 8.2.
PERSON. ANY INDIVIDUAL, CORPORATION, PARTNERSHIP, TRUST, UNINCORPORATED
ASSOCIATION, BUSINESS, OR OTHER LEGAL ENTITY, AND ANY GOVERNMENT OR ANY
GOVERNMENTAL AGENCY OR POLITICAL SUBDIVISION THEREOF.
PROPERTIES. ALL REAL ESTATE ASSETS, REAL ESTATE, AND ALL OTHER ASSETS,
INCLUDING, WITHOUT LIMITATION, INTANGIBLES AND PERSONALTY OWNED BY THE BORROWER
OR ANY OF ITS SUBSIDIARIES.
REAL ESTATE. ALL REAL PROPERTY AT ANY TIME OWNED, LEASED (AS LESSEE OR
SUBLESSEE) OR OPERATED BY THE BORROWER OR ANY OF ITS SUBSIDIARIES.
REAL ESTATE ASSETS. THOSE FIXED AND TANGIBLE PROPERTIES CONSISTING OF
LAND, BUILDINGS AND/OR OTHER IMPROVEMENTS WHOLLY-OWNED BY THE BORROWER OR ANY
OF ITS SUBSIDIARIES AT THE RELEVANT TIME OF REFERENCE THERETO OR JOINTLY OWNED
TO THE EXTENT PERMITTED UNDER [SECTION] 8.3(f) OF THIS AGREEMENT, BUT
EXCLUDING ALL LEASEHOLDS OTHER THAN LEASEHOLDS UNDER GROUND LEASES HAVING AN
UNEXPIRED TERM OF 30 YEARS OR MORE AND THAT CERTAIN LEASEHOLD INTEREST GRANTED
BY NATURAL GAS PIPELINE COMPANY AT THE WESTVIEW SHOPPING CENTER.
RECORD. THE GRID ATTACHED TO ANY NOTE, OR THE CONTINUATION OF SUCH GRID, OR
ANY OTHER SIMILAR RECORD, INCLUDING COMPUTER RECORDS, MAINTAINED BY ANY BANK
WITH RESPECT TO ANY LOAN REFERRED TO IN SUCH NOTE.
REGISTRATION STATEMENT. THE REGISTRATION STATEMENT FORM S-4 FOR THE
BORROWER FILED WITH THE SECURITIES AND EXCHANGE COMMISSION AS REGISTRATION
STATEMENT NO. 33-64811, AS FILED ON FEBRUARY 15, 1996, AS THE SAME MAY BE
FURTHER AMENDED OR MODIFIED.
REIMBURSEMENT OBLIGATION. THE BORROWER'S OBLIGATION TO REIMBURSE THE
AGENT AND THE BANKS ON ACCOUNT OF ANY DRAWING UNDER ANY LETTER OF CREDIT AS
PROVIDED IN [SECTION] 2A.2. NOTWITHSTANDING THE FOREGOING, UNLESS BORROWER
SHALL NOTIFY AGENT OF ITS INTENT TO REPAY THE REIMBURSEMENT OBLIGATION ON THE
DATE OF THE RELATED DRAWING UNDER ANY LETTER OF CREDIT AS PROVIDED IN [SECTION]
2A.2, SUCH REIMBURSEMENT OBLIGATION SHALL SIMULTANEOUSLY WITH SUCH DRAWING BE
CONVERTED TO AND BECOME A BASE RATE LOAN AS SET FORTH IN [SECTION] 2A.3.
RELEASE. SEE [SECTION] 6.18(c)(iii).
S&P. STANDARD & POOR'S RATINGS GROUP AND ITS SUCCESSORS.
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SUBSIDIARY. ANY CORPORATION, ASSOCIATION, TRUST, OR OTHER BUSINESS ENTITY
OF WHICH THE DESIGNATED PARENT OR OTHER CONTROLLING PERSON SHALL AT ANY TIME OWN
DIRECTLY OR INDIRECTLY THROUGH A SUBSIDIARY OR SUBSIDIARIES AT LEAST A MAJORITY
(BY NUMBER OF VOTES) OF THE OUTSTANDING VOTING INTERESTS.
TOTAL COMMITMENT. THE SUM OF THE COMMITMENTS OF THE BANKS, AS IN EFFECT
FROM TIME TO TIME.
TOTAL INDEBTEDNESS. ALL OF THE FOLLOWING OBLIGATIONS, CONTINGENT AND
OTHERWISE, BUT WITHOUT DUPLICATION, THAT IN ACCORDANCE WITH GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES SHOULD BE CLASSIFIED UPON THE OBLIGOR'S BALANCE SHEET AS
LIABILITIES, OR TO WHICH REFERENCE SHOULD BE MADE BY FOOTNOTES THERETO,
INCLUDING IN ANY FOLLOWING EVENT AND WHETHER OR NOT SO CLASSIFIED: (a) ALL
INDEBTEDNESS, (b) ALL OTHER DEBT AND SIMILAR MONETARY OBLIGATIONS, WHETHER
DIRECT OR INDIRECT; (c) ALL OTHER LIABILITIES SECURED BY ANY MORTGAGE, PLEDGE,
NEGATIVE PLEDGE, SECURITY INTEREST, LIEN, NEGATIVE LIEN, CHARGE, OR OTHER
ENCUMBRANCE EXISTING ON PROPERTY OWNED OR ACQUIRED SUBJECT THERETO, WHETHER OR
NOT THE LIABILITY SECURED THEREBY SHALL HAVE BEEN ASSUMED; (d) ALL OTHER
GUARANTEES, ENDORSEMENTS AND OTHER CONTINGENT OBLIGATIONS WHETHER DIRECT OR
INDIRECT IN RESPECT OF INDEBTEDNESS OR OBLIGATIONS OF OTHERS, INCLUDING ANY
OBLIGATION TO SUPPLY FUNDS TO OR IN ANY MANNER TO INVEST IN, DIRECTLY OR
INDIRECTLY, THE DEBTOR, TO PURCHASE INDEBTEDNESS, OR TO ASSURE THE OWNER OF
INDEBTEDNESS AGAINST LOSS, THROUGH AN AGREEMENT TO PURCHASE GOODS, SUPPLIES, OR
SERVICES FOR THE PURPOSE OF ENABLING THE DEBTOR TO MAKE PAYMENT OF THE
INDEBTEDNESS HELD BY SUCH OWNER OR OTHERWISE, AND THE OBLIGATIONS TO REIMBURSE
THE ISSUER IN RESPECT OF ANY LETTERS OF CREDIT; AND (e) JOINT VENTURE AND
PARTNERSHIP OBLIGATIONS, CONTINGENT OR OTHERWISE.
TYPE. AS TO ANY LOAN ITS NATURE AS A BASE RATE LOAN, A EURODOLLAR RATE LOAN
OR A LIBOR RATE LOAN.
UNENCUMBERED ASSET. WITH RESPECT TO ANY REAL ESTATE ASSET, AT ANY DATE OF
DETERMINATION, THE CIRCUMSTANCE THAT SUCH ASSET ON SUCH DATE (a) IS NOT SUBJECT
TO ANY LIENS (INCLUDING ANY SUCH LIEN IMPOSED BY THE ORGANIZATIONAL DOCUMENTS OF
THE OWNER OF SUCH ASSET, BUT EXCLUDING PERMITTED LIENS), (b) IS NOT THE SUBJECT
OF A NON-MATERIAL BREACH, (c) HAS BEEN IMPROVED WITH A BUILDING OR BUILDINGS
WHICH (1) HAVE BEEN ISSUED A CERTIFICATE OF OCCUPANCY, (2) ARE FULLY
OPERATIONAL, AND (3) HAVE AN AGGREGATE AVERAGE OCCUPANCY OF ALL BUILDING(S) IN
SUCH REAL ESTATE ASSET OF NOT LESS THAN 75% FOR THE FOUR FISCAL QUARTERS MOST
RECENTLY ENDED, PROVIDED AT ANY ONE TIME TWO REAL ESTATE ASSETS THAT OTHERWISE
QUALIFY AS AN UNENCUMBERED ASSET MAY HAVE AN AVERAGE OCCUPANCY OF LESS THAN 75%
FOR THE FOUR FISCAL QUARTERS MOST RECENTLY ENDED, PROVIDED FURTHER THAT AT ANY
DATE OF DETERMINATION ALL REAL ESTATE ASSETS THAT ARE UNENCUMBERED ASSETS SHALL
HAVE AN AGGREGATE OCCUPANCY OF NOT LESS THAN 85% FOR THE FOUR FISCAL QUARTERS
MOST RECENTLY ENDED, AND (d) IS WHOLLY OWNED BY A BORROWER.
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UNIFORM CUSTOMS. WITH RESPECT TO ANY LETTER OF CREDIT, THE UNIFORM CUSTOMS
AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF
COMMERCE PUBLICATION NO. 500 OR ANY SUCCESSOR VERSION THERETO ADOPTED BY THE
AGENT IN THE ORDINARY COURSE OF ITS BUSINESS AS A LETTER OF CREDIT ISSUER AND IN
EFFECT AT THE TIME OF ISSUANCE OF SUCH LETTER OF CREDIT.
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UNRESTRICTED CASH AND CASH EQUIVALENTS. AS OF ANY DATE OF DETERMINATION,
THE SUM OF (a) THE AGGREGATE AMOUNT OF UNRESTRICTED CASH THEN HELD BY THE
BORROWER OR ANY OF ITS CONSOLIDATED SUBSIDIARIES AND (b) THE AGGREGATE AMOUNT OF
UNRESTRICTED CASH EQUIVALENTS (VALUED AT FAIR MARKET VALUE) THEN HELD BY THE
BORROWER OR ANY OF ITS CONSOLIDATED SUBSIDIARIES. AS USED IN THIS DEFINITION,
(i) "UNRESTRICTED" MEANS THE SPECIFIED ASSET IS NOT SUBJECT TO ANY LIENS IN
FAVOR OF ANY PERSON AND (ii) "CASH EQUIVALENTS" MEANS THAT SUCH ASSET HAS A
LIQUID, PAR VALUE IN CASH AND IS CONVERTIBLE TO CASH ON DEMAND. NOTWITHSTANDING
ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE TERM UNRESTRICTED CASH AND CASH
EQUIVALENTS SHALL NOT INCLUDE THE COMMITMENTS OF THE BANKS TO MAKE LOANS UNDER
THIS AGREEMENT.
UNSECURED INDEBTEDNESS. ALL INDEBTEDNESS OF ANY PERSON THAT IS NOT SECURED
BY A LIEN ON ANY ASSET OF SUCH PERSON.
VALUE OF UNENCUMBERED ASSETS. FOR ANY PERIOD OF TWO CONSECUTIVE FISCAL
QUARTERS, AN AMOUNT EQUAL TO THE SUM OF (i) CONSOLIDATED NET OPERATING INCOME
ATTRIBUTABLE TO UNENCUMBERED ASSETS FOR THE MOST RECENT PERIOD OF TWO
CONSECUTIVE FISCAL QUARTERS OF THE BORROWER (EXCLUDING ANY PORTION OF
CONSOLIDATED NET OPERATING INCOME ATTRIBUTABLE TO UNENCUMBERED ASSETS ACQUIRED
BY THE BORROWER DURING OR AFTER SUCH PERIOD) MULTIPLIED BY 2, WITH THE PRODUCT
BEING DIVIDED BY THE CAPITALIZATION RATE, PLUS (ii) WITH RESPECT TO THOSE
UNENCUMBERED ASSETS SO ACQUIRED BY THE BORROWER DURING SUCH PERIOD OF TWO
CONSECUTIVE FISCAL QUARTERS, THE BORROWER'S ESTIMATED ANNUAL CONSOLIDATED NET
OPERATING INCOME FOR SUCH UNENCUMBERED ASSETS BASED ON LEASES IN EXISTENCE AT
THE DATE OF SUCH CALCULATION DIVIDED BY THE CAPITALIZATION RATE.
VOTING INTERESTS. CAPITAL STOCK OF ANY CLASS OR CLASSES (HOWEVER
DESIGNATED), THE HOLDERS OF WHICH ARE AT THE TIME ENTITLED, AS SUCH HOLDERS, (a)
TO VOTE FOR THE ELECTION OF A MAJORITY OF THE DIRECTORS (OR PERSONS PERFORMING
SIMILAR FUNCTIONS) OF THE CORPORATION, ASSOCIATION, PARTNERSHIP, TRUST OR OTHER
BUSINESS ENTITY INVOLVED, OR (b) TO CONTROL, MANAGE OR CONDUCT THE BUSINESS OF
THE CORPORATION, PARTNERSHIP, ASSOCIATION, TRUST OR OTHER BUSINESS ENTITY
INVOLVED.
[SECTION] 1.2. RULES OF INTERPRETATION.
-----------------------
(a) A reference to any document or agreement shall include such document or
agreement as amended, modified or supplemented from time to time in accordance
with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes the singular.
(c) A reference to any law includes any amendment or modification to such
law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
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(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by generally accepted accounting principles applied on a
consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not limiting.
(g) All terms not specifically defined herein or by generally accepted
accounting principles, which terms are defined in the Uniform Commercial Code as
in effect in Massachusetts, have the meanings assigned to them therein.
(h) Reference to a particular "ss." refers to that section of this
Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like import
shall refer to this Agreement as a whole and not to any particular section or
subdivision of this Agreement.
(j) The words "so long as any Loan or Note is outstanding" shall mean so
long as such Loan or Note is not indefeasibly paid in full in cash.
[SECTION] 2. THE REVOLVING CREDIT FACILITY.
-----------------------------
[SECTION] 2.1. COMMITMENT TO LEND; LIMITATION ON TOTAL COMMITMENT.
Subject to the provisions of [SECTION] 2.1, [SECTION] 2.5, [SECTION] 2A and the
other terms and conditions set forth in this Agreement, each of the Banks
severally agrees to lend to the Borrower and the Borrower may borrow, repay,
and reborrow from time to time between the Effective Date and the Maturity Date
upon notice by the Borrower to the Agent given in accordance with [SECTION]
2.5, such sums as are requested by the Borrower up to a maximum aggregate
principal amount outstanding (after giving effect to all amounts requested) at
any one time equal to such Bank's Commitment minus such Bank's Commitment
Percentage of the sum of the Maximum Drawing Amount, PROVIDED that the sum of
the outstanding amount of the Loans (after giving effect to all amounts
requested) plus the Maximum Drawing Amount shall not at any time exceed the
Total Commitment. The Loans shall be made pro rata in accordance with each
Bank's Commitment Percentage and the Banks shall at all times immediately
adjust inter se any inconsistency between each Bank's outstanding principal
amount and each Bank's Commitment. Each request for a Loan hereunder shall
constitute a representation and warranty by the Borrower that the conditions
set forth in [SECTION] 11 have been satisfied (or waived in writing by the
Banks) on the date of such request and will be satisfied (or waived in writing
by the Banks) on the proposed Drawdown Date of the requested Loan, PROVIDED
that the making of such representation and warranty by Borrower shall not limit
the right of any Bank not to lend if such conditions have not been satisfied or
if the Compliance Certificate delivered in connection with ss.11 is inaccurate.
Nothing herein shall prevent the Borrower from seeking recourse (subject to
[SECTION] 24 of this Agreement) against any Bank that wrongfully fails to
advance its proportionate share of a requested Loan as
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required by this Agreement. The Agent intends, and shall have the right, to
syndicate, or enter into co-lending arrangements with respect to, the Loans and
the Total Commitment pursuant to [SECTION] 18, and the Borrower agrees to
cooperate with the Agent's syndication and/or co-lending efforts, such
cooperation to include, without limitation, the provision of information
reasonably requested by potential syndicate members.
[SECTION] 2.2. REDUCTION OF COMMITMENT. The Borrower shall have the
right at any time and from time to time upon five (5) Business Days' prior
written notice to the Agent to reduce by $1,000,000 or an integral multiple of
$1,000,000 in excess thereof or terminate entirely the unborrowed portion of
the then Total Commitment, whereupon the Commitments of the Banks shall be
reduced pro rata in accordance with their respective Commitment Percentages by
the amount specified in such notice or, as the case may be, terminated. Upon
the effective date of any such reduction or termination, the Borrower shall pay
to the Agent for the respective accounts of the Banks the full amount of any
commitment fee then accrued on the amount of the reduction. No reduction or
termination of the Commitments may be reinstated.
[SECTION] 2.3. THE NOTES. The Loans shall be evidenced by separate
promissory notes of the Borrower in substantially the form of EXHIBIT A hereto
(each a "Note"), and completed with appropriate insertions. A Note shall be
payable to the order of each Bank in a principal amount equal to such Bank's
Commitment. The Borrower irrevocably authorizes each Bank to make or cause to
be made, at or about the time of the Drawdown Date of any Loan or at the time
of receipt of any payment of principal on such Bank's Note, an appropriate
notation on such Bank's Record reflecting the making of such Loan or (as the
case may be) the receipt of such payment. The failure to record, or any error
in so recording, any such amount on the Record shall not limit or otherwise
affect the obligations of the Borrower hereunder or under any Note to make
payments of principal of or interest on any Note when due.
[SECTION] 2.4. INTEREST ON LOANS.
-----------------
(a) Each Base Rate Loan shall bear interest for the period commencing with
the Drawdown Date thereof and ending on the last day of the Interest Period with
respect thereto at the Base Rate.
(b) Each Eurodollar Rate Loan shall bear interest for the period commencing
with the Drawdown Date thereof and ending on the last day of the Interest Period
with respect thereto at a rate equal to Eurodollar Rate determined for such
Interest Period plus the Applicable Margin for Eurodollar Rate Loans.
(c) Each LIBOR Rate Loan shall bear interest for the period commencing with
the Drawdown Date thereof and ending on the last day of the Interest Period with
respect thereto at a
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rate equal to the LIBOR Rate determined for such Interest Period plus the
Applicable Margin for LIBOR Rate Loans.
(d) The Borrower unconditionally promises to pay interest on each Loan in
arrears on each Interest Payment Date with respect thereto.
[SECTION] 2.5. REQUESTS FOR LOANS.
------------------
(a) The Borrower shall give to the Agent written notice in the form of
Exhibit B hereto (or telephonic notice confirmed in a writing in the form of
Exhibit B hereto) of each Loan requested hereunder (a "Loan Request") no less
than (a) five (5) Business Days prior to the proposed Drawdown Date of such
Loan. Each such notice shall specify (i) the principal amount of the Loan
requested, (ii) the proposed Drawdown Date of such Loan, (iii) the Interest
Period for such Loan, (iv) the Type of such Loan, (v) the permitted purpose for
which such funds will be used, and (vi) in the case of a Letter of Credit,
include a Letter of Credit Application, and in all cases shall be accompanied
by a Compliance Certificate evidencing covenant compliance at the time of the
making of such Loan and, on a pro-forma basis, after giving effect to such
requested Loan. Promptly upon receipt of a Loan Request, the Agent shall notify
each of the Banks thereof. Notwithstanding the maximum amount of the Total
Commitment stated herein or the submission of a Loan Request, no Loan shall be
required to be made by any Bank unless all of the conditions contained in
[SECTION] 11 of this Agreement have been met and the Compliance Certificate
delivered in connection with [SECTION] 11 is accurate. Each such notice shall
be irrevocable and binding on the Borrower and shall obligate the Borrower to
accept the Loan requested from the Banks on the proposed Drawdown Date provided
that the Borrower may revoke a Loan Request by written notice given to the
Agent on or before three (3) Business Days prior to the proposed Drawdown Date.
Each Loan Request shall be in a minimum aggregate amount of $100,000 or an
integral multiple of $100,000 in excess thereof. Upon delivery of a Loan
Request in accordance with this Section 2.5(a), each of the Banks shall be
obligated to fund its Commitment Percentage of the requested Loans subject to
the limitations and conditions specified in this [SECTION] 2.5 or in [SECTION]
2.1 hereof.
(b) Notwithstanding anything contained in [SECTION] 2.1 or [SECTION]
2.5(a) to the contrary, the Agent and the Banks shall not be required to fund
any Loan if, after giving effect thereto, the outstanding amount of Loans and
Letters of Credit advanced to the Borrower or its Subsidiaries for working
capital purposes would exceed $25,000,000. The Agent and the Borrower agree and
acknowledge that the limitation on Loans and Letters of Credit for working
capital purposes shall not include Loans for the costs of tenant improvements,
capital improvements, leasing commissions, repayment of Indebtedness or other
fees or closing costs.
(c) Each Loan Request for the acquisition of a Real Estate Asset shall
include, in addition to the information specified in [SECTION] 2.5(a) hereof,
(i) a certification by the Borrower that such acquisition is consistent with
the Business Plan Summary and that an environmental inspection has
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been conducted in accordance with [SECTION] 7.12 hereof and, based on
such inspection, the proposed Real Estate Asset to be acquired does not have
potential environmental remediation costs or other environmental liabilities in
excess of $1,000,000, and (ii) a copy of the environmental site assessment
report with respect to such Real Estate Asset.
(d) Notwithstanding anything contained in [SECTION] 2.1 or [SECTION]
2.5(a) hereof to the contrary, in the event of any Loan Request for the
development of a Real Estate Asset, in addition to the information specified in
[SECTION] 2.5(a) hereof to be included with each Loan Request, Borrower shall
also submit to the Agent a certification by the Borrower that the covenants
contained in [SECTION] 7.20 are true and correct as of the date of the Loan
Request and will be true as of the time of the making of such Loan.
[SECTION] 2.6. CONVERSION OPTIONS.
-----------------
(a) The Borrower may elect from time to time to convert any outstanding
Loan to a Loan of another Type, PROVIDED that (i) with respect to any such
conversion of a Eurodollar Rate Loan or LIBOR Rate Loan to a Base Rate Loan,
the Borrower shall give the Agent at least three (3) Business Days' prior
written notice of such election; (ii) with respect to any such conversion of a
Eurodollar Rate Loan or LIBOR Rate Loan into a Loan of another Type, such
conversion shall only be made on the last day of the Interest Period with
respect thereto; (iii) subject to the further proviso at the end of this
section and subject to [SECTION] 2.6(b) and [SECTION] 2.6(d) hereof with
respect to any such conversion of a Base Rate Loan or a LIBOR Rate Loan to a
Eurodollar Rate Loan, the Borrower shall give the Agent at least four (4)
Eurodollar Business Days' prior written notice of such election; (iv) subject
to the further proviso at the end of this section and subject to [SECTION]
2.6(b) and [SECTION] 2.6(d) hereof with respect to any such conversion of a
Base Rate Loan or a Eurodollar Rate Loan to a LIBOR Rate Loan, the Borrower
shall give the Agent at least four (4) LIBOR Business Days' prior written
notice of each election and (v) no Loan may be converted into a Eurodollar Rate
Loan or a LIBOR Rate Loan when any Default or Event of Default has occurred and
is continuing. On the date on which such conversion is being made, each Bank
shall take such action as is necessary to transfer its Commitment Percentage of
such Loans to its Domestic Lending Office, its Eurodollar Lending Office or
LIBOR Lending Office, as the case may be. All or any part of outstanding Loans
of any Type may be converted as provided herein, PROVIDED FURTHER that each
Conversion Request relating to the conversion of a Loan of another Type to a
Eurodollar Rate Loan or LIBOR Rate Loan shall be for an amount equal to
$600,000 or an integral multiple of $100,000 in excess thereof and shall be
irrevocable by the Borrower.
(b) Any Loans of any Type may be continued as such upon the expiration
of an Interest Period with respect thereto by compliance by the Borrower with
the notice provisions contained in [SECTION] 2.6(a); PROVIDED that no
Eurodollar Rate Loan or LIBOR Rate Loan may be continued as such when any
Default or Event of Default has occurred and is continuing but shall be
automatically converted to a Base Rate Loan on the last day of the first
Interest Period relating
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thereto ending during the continuance of any Default or Event of Default of
which the officers of the Agent active upon the Borrower's account have actual
knowledge.
(c) In the event that the Borrower does not notify the Agent of its
election hereunder with respect to any Loan, such Loan shall be automatically
converted to a Base Rate Loan at the end of the applicable Interest Period.
(d) The Borrower may not request a Eurodollar Rate Loan or a LIBOR Rate
Loan pursuant to [SECTION] 2.5, elect to convert a Loan of another Type to a
Eurodollar Rate Loan or a LIBOR Rate Loan pursuant to [SECTION] 2.5(a) or elect
to continue a Eurodollar Rate Loan or a LIBOR Rate Loan pursuant to [SECTION]
2.6(b) if, after giving effect thereto, there would be greater than an
aggregate of five (5) Eurodollar Rate Loans and LIBOR Rate Loans outstanding.
Any Loan Request for a Eurodollar Rate Loan or a LIBOR Rate Loan that would
create greater than an aggregate of five (5) Eurodollar Rate Loans and LIBOR
Rate Loans outstanding shall be deemed to be a Loan Request for a Base Rate
Loan. All Loans which are Eurodollar Rate Loans, having identical Interest
Periods and interest rates shall constitute one (1) Eurodollar Rate Loan
hereunder. All Loans which are LIBOR Rate Loans having identical Interest
Periods and interest rates shall constitute one (1) LIBOR Rate Loan hereunder.
[SECTION] 2.7. FUNDS FOR LOANS.
---------------
(a) Not later than 12:00 p.m. (Boston time) on the proposed Drawdown
Date of any Loans, each of the Banks will make available to the Agent, at the
Agent's Head Office, in immediately available funds, the amount of such Bank's
Commitment Percentage of the amount of the requested Loans. Upon receipt from
each Bank of such amount, and upon receipt of the documents required by
[SECTION] 11 and the satisfaction of the other conditions set forth herein, to
the extent applicable, the Agent will make available to the Borrower the
aggregate amount of such Loans made available to the Agent by the Banks. The
Agent shall make reasonable efforts to fund the aggregate amount of the Loans
to the Borrower by 2:00 p.m. on the Drawdown Date. The failure or refusal of
any Bank to make available to the Agent at the aforesaid time and place on any
Drawdown Date the amount of its Commitment Percentage of the requested Loans
shall not relieve any other Bank from its several obligation hereunder to make
available to the Agent the amount of such other Bank's Commitment Percentage of
any requested Loans but shall not obligate any other Bank or Agent to fund more
than its Commitment Percentage of the requested Loans or to increase its
Commitment Percentage.
(b) The Agent may, unless notified to the contrary by any Bank prior to a
Drawdown Date, assume that such Bank has made available to the Agent on such
Drawdown Date the amount of such Bank's Commitment Percentage of the Loans to be
made on such Drawdown Date, and the Agent may (but it shall not be required to),
in reliance upon such assumption, make available to the Borrower a corresponding
amount. If any Bank makes available to the Agent such amount on a date
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after such Drawdown Date, such Bank shall pay to the Agent on demand an amount
equal to the product of (i) the average computed for the period referred to in
clause (iii) below, of the weighted average interest rate paid by the Agent for
federal funds acquired by the Agent during each day included in such period,
TIMES (ii) the amount of such Bank's Commitment Percentage of such Loans, TIMES
(iii) a fraction, the numerator of which is the number of days or portion
thereof that elapsed from and including such Drawdown Date to the date on which
the amount of such Bank's Commitment Percentage of such Loans shall become
immediately available to the Agent, and the denominator of which is 365. A
statement of the Agent submitted to such Bank with respect to any amounts owing
under this paragraph shall be PRIMA FACIE evidence of the amount due and owing
to the Agent by such Bank.
[SECTION] 2A LETTERS OF CREDIT.
-----------------
2A.1 LETTER OF CREDIT COMMITMENTS.
----------------------------
2A.1.1 COMMITMENT TO ISSUE LETTERS OF CREDIT.
-------------------------------------
Subject to the terms and conditions hereof and the execution and delivery by the
Borrower of a letter of credit application on the Fronting Bank's customary form
as part of a Loan Request (a "Letter of Credit Application") deleting, however,
the terms and conditions customarily attached thereto, the Fronting Bank on
behalf of the Banks and in reliance upon the agreement of the Banks set forth in
[SECTION] 2A.1.4 and upon the representations and warranties of the Borrower
contained herein, agrees, in its individual capacity, to issue, extend and
renew for the account of the Borrower one or more letters of credit
(individually, a "Letter of Credit"), in such form as may be requested from
time to time by the Borrower and reasonably agreed to by the Fronting Bank;
PROVIDED, HOWEVER, that, after giving effect to such Loan Request, (a) the sum
of the aggregate Maximum Drawing Amount shall not exceed $20,000,000 at any one
time and (b) the sum of (i) the Maximum Drawing Amount on all Letters of Credit
and (ii) the amount of all Loans outstanding shall not exceed the Total
Commitment.
2A.1.2 LETTER OF CREDIT APPLICATIONS.
-----------------------------
Each Letter of Credit Application shall be completed to the reasonable
satisfaction of the Agent and the Fronting Bank. In the event that any provision
of any Letter of Credit Application shall be inconsistent with any provision of
this Credit Agreement (including provisions applicable to a Loan Request), then
the provisions of this Credit Agreement shall, to the extent of any such
inconsistency, govern.
2A.1.3 TERMS OF LETTERS OF CREDIT.
--------------------------
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Each Letter of Credit issued, extended or renewed hereunder shall, among other
things, (i) provide for the payment of sight drafts for honor thereunder when
presented in accordance with the terms thereof and when accompanied by the
documents described therein, and (ii) have an expiry date no later than the date
which is fourteen (14) days (or, if the Letter of Credit is confirmed by a
confirmer or otherwise provides for one or more nominated persons, forty-five
(45) days) prior to the Maturity Date. Each Letter of Credit so issued, extended
or renewed shall be subject to the Uniform Customs.
2A.1.4. REIMBURSEMENT OBLIGATIONS OF BANKS.
----------------------------------
Each Bank severally agrees that it shall be absolutely liable, without regard
to the occurrence of any Default or Event of Default or any other
condition precedent whatsoever, to the extent of such Bank's Commitment
Percentage, to reimburse the Fronting Bank on demand for the amount of each
draft paid by the Fronting Bank under each Letter of Credit to the extent that
such amount is not reimbursed by the Borrower pursuant to [SECTION] 2A.2 (such
agreement for a Bank being called herein the "Letter of Credit Participation"
of such Bank).
2A.1.5. PARTICIPATIONS OF BANKS.
-----------------------
Each such payment made by a Bank shall be treated as the purchase by such Bank
of a participating interest in the Borrower's Reimbursement Obligation under
[SECTION] 2A.2 in an amount equal to such payment. Each Bank shall share in
accordance with its participating interest in any interest which accrues
pursuant to [SECTION] 2A.2.
2A.2. REIMBURSEMENT OBLIGATION OF THE BORROWER.
----------------------------------------
In order to induce the Fronting Bank to issue, extend and renew each Letter of
Credit and the Banks to participate therein, the Borrower hereby agrees, except
as contemplated in [SECTION] 2A.3 below, to reimburse or pay to the Fronting
Bank, for the account of the Fronting Bank or (as the case may be) the Banks,
with respect to each Letter of Credit issued, extended or renewed by the
Fronting Bank hereunder,
(a) except as otherwise expressly provided in [SECTION] 2A.2(b) and (c)
or [SECTION] 2A.3, on each date that any draft presented under such Letter
of Credit is honored by the Fronting Bank, or the Fronting Bank otherwise makes
a payment with respect thereto, (i) the amount paid by the Fronting Bank under
or with respect to such Letter of Credit, and (ii) the amount of any taxes
(other than income taxes, franchise fees and other similar impositions based
upon the net income or assets of the Bank or any Bank), fees, charges or other
costs and expenses whatsoever incurred by the Fronting Bank or any Bank in
connection with any payment made by the Fronting Bank or any Bank under, or
with respect to, such Letter of Credit,
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(b) upon the reduction (but not termination) of the Total Commitment to an
amount less than the Maximum Drawing Amount, an amount equal to such difference,
which amount shall be held by the Agent for the benefit of the Banks and the
Agent as cash collateral for all Reimbursement Obligations, and
(c) upon the termination of the Total Commitment, or the acceleration
of the Reimbursement Obligations with respect to all Letters of Credit in
accordance with [SECTION] 12, an amount equal to the then Maximum Drawing
Amount on all Letters of Credit, which amount shall be held by the Agent for
the benefit of the Banks and the Agent as cash collateral for all Reimbursement
Obligations.
Each such payment shall be made to the Agent at the Agent's Head Office
in immediately available funds. Interest on any and all amounts remaining
unpaid by the Borrower under this [SECTION] 2A.2 at any time from the date such
amounts become due and payable (whether as stated in this [SECTION] 2A.2, by
acceleration or otherwise) until payment in full (whether before or after
judgment) shall be payable to the Agent on demand at the rate specified in
[SECTION] 4.9 for overdue principal on the Loans.
2A.3 LETTER OF CREDIT PAYMENTS; FUNDING OF A LOAN.
--------------------------------------------
If any draft shall be presented or other demand for payment shall be made under
any Letter of Credit, the Fronting Bank shall notify the Borrower and the Banks
on or before the date the Fronting Bank intends to honor such drawing, of the
date and amount of the draft presented or demand for payment and of the date
and time when it expects to pay such draft or honor such demand for payment,
and, except as provided in this [SECTION] 2A.3, Borrower shall reimburse Agent,
as set forth in [SECTION] 2A.2 above. Notwithstanding anything contained in
this [SECTION] 2A.3 to the contrary, however, unless Borrower shall have
notified the Agent and Fronting Bank prior to 11:00 a.m. (New York time) on the
Business Day immediately prior to the date of such drawing that Borrower
intends to reimburse Fronting Bank for the amount of such drawing with funds
other than the proceeds of the Loans, Borrower shall be deemed to have timely
given a Loan Request pursuant to [SECTION] 2.5 to Agent, requesting a Base Rate
Loan on the date on which such drawing is honored and in an amount equal to the
amount of such drawing. Each Bank shall, in accordance with [SECTION] 2.7, make
available its PRO RATA share of such Loan to Agent, the proceeds of which shall
be applied directly by Agent to reimburse Fronting Bank for the amount of such
draw. In the event that any Bank fails to make available to Agent the amount of
such Bank's participation on the date of the drawing, Agent shall be entitled
to recover such amount on demand from such Bank plus any additional amounts
payable under [SECTION] 2.7(b) in the event of a late funding by a Bank. The
Fronting Bank is irrevocably authorized by the Borrower to honor draws on each
Letter of Credit by the beneficiary thereof in accordance with the terms of the
Letter of Credit. The responsibility of the Agent to the Borrower and the Banks
shall be only to determine that the documents (including each draft) delivered
under each Letter of Credit in connection with such presentment shall be in
conformity in all material respects with such Letter of Credit.
2A.4 OBLIGATIONS ABSOLUTE.
--------------------
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The Borrower's obligations under this [SECTION] 2A shall be absolute
and unconditional under any and all circumstances and irrespective of the
occurrence of any Default or Event of Default or any condition precedent
whatsoever or any setoff, counterclaim or defense to payment which the Borrower
may have or have had against the Agent, any Bank or any beneficiary of a Letter
of Credit. The Borrower further agrees with the Agent and the Banks that the
Agent and the Banks shall not be responsible for, and the Borrower's
Reimbursement Obligations under [SECTION] 2A.2 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even if such documents should in fact prove to be in any or all
respects invalid, fraudulent or forged, or any dispute between or among the
Borrower, the beneficiary of any Letter of Credit or any financing institution
or other party to which any Letter of Credit may be transferred or any claims
or defenses whatsoever of the Borrower against the beneficiary of any Letter of
Credit or any such transferee. The Agent and the Banks shall not be liable for
any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with any
Letter of Credit. The Borrower agrees that any action taken or omitted by the
Agent or any Bank under or in connection with each Letter of Credit and the
related drafts and documents, if done in good faith, shall be binding upon the
Borrower and shall not result in any liability on the part of the Agent or any
Bank to the Borrower.
2A.5 RELIANCE BY ISSUER.
------------------
To the extent not inconsistent with [SECTION] 2A.4, the Agent and any
Fronting Bank shall be entitled to rely, and shall be fully protected in
relying upon, any Letter of Credit, draft, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex
or teletype message, statement, order or other document believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Agent. The Agent and any Fronting
Bank shall be fully justified in failing or refusing to take any action under
this Agreement unless it shall first have received such advice or concurrence
of the Majority Banks as it reasonably deems appropriate or it shall first be
indemnified to its reasonable satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent and any Fronting Bank shall in
all cases be fully protected by the Banks in acting, or in refraining from
acting, under this Agreement in accordance with a request of the Majority
Banks, and such request and any action taken or failure to act pursuant thereto
shall be binding upon the Banks and all future holders of the Notes or of a
Letter of Credit Participation.
2A.6 LETTER OF CREDIT FEE.
--------------------
The Borrower shall pay to the Agent a fee (in each case, a "Letter of Credit
Fee") in an amount equal to 1.5% per annum of the face amount of the issued
Letter of Credit, which fee shall be payable on the date of issuance of the
Letter of Credit, and which fee shall be prorated based on the stated
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expiration date of the Letter of Credit if less than one year, with no rebate in
the event that the Letter of Credit is terminated prior to such expiration date.
[SECTION] 3. REPAYMENT OF THE LOANS.
----------------------
[SECTION] 3.1. MATURITY. The Borrower unconditionally promises to pay
on the Maturity Date, and there shall become absolutely due and payable on the
Maturity Date, all of the Loans outstanding on such date, together with any and
all accrued and unpaid interest and charges thereon.
[SECTION] 3.2. MANDATORY REPAYMENTS OF LOANS. If at any time the sum of the
outstanding amount of the Loans and the Maximum Drawing Amount exceeds the Total
Commitment, then the Borrower shall, within one (1) Business Day of receipt of
notice of the same from the Agent, pay the amount of such excess to the Agent
for the respective accounts of the Banks for application to the Loans.
[SECTION] 3.3. OPTIONAL REPAYMENTS OF LOANS. The Borrower shall have
the right, at its election, to repay the outstanding amount of the Loans, as a
whole or in part, on any Business Day, without penalty or premium; PROVIDED
that the full or partial prepayment of the outstanding amount of any Eurodollar
Rate Loans or LIBOR Rate Loans made pursuant to this [SECTION] 3.3 may be made
only on the last day of the Interest Period relating thereto except as
otherwise provided in this [SECTION] 3.3. The Borrower shall give the Agent no
later than 10:00 a.m., Boston time, at least two (2) Business Days' prior
written notice of any prepayment pursuant to this [SECTION] 3.3 of any Base
Rate Loans, three (3) Eurodollar Business Days' notice of any proposed
repayment pursuant to this [SECTION] 3.3 of any Eurodollar Rate Loans and three
(3) LIBOR Business Days' notice of any proposed repayment pursuant to this
[SECTION] 3.3 of any LIBOR Rate Loans, specifying the proposed date of payment
of Loans and the principal amount to be paid. The Agent shall give the Banks
notice of any proposed prepayment within one (1) Business Day after receipt of
written notice from the Borrower. Each such partial prepayment of the Loans
shall be in an integral multiple of $100,000 and shall be accompanied by the
payment of accrued interest on the principal repaid to the date of payment and
shall be applied, in the absence of instruction by the Borrower, first to the
principal of Base Rate Loans, then to the principal of Eurodollar Rate Loans
and then to the principal of LIBOR Rate Loans. Notwithstanding anything
contained herein to the contrary, the Borrower may make a full or partial
prepayment of a Eurodollar Rate Loan or a LIBOR Rate Loan on a date other than
the last day of the Interest Period relating thereto, if all optional
prepayments (in whole or in part) on such Loans shall be accompanied by, and
the Borrower hereby promises to pay, a prepayment fee in an amount determined
by the Agent in the following manner:
(i) First, the Agent shall determine the amount by which (A) the total
amount of interest which would have otherwise accrued hereunder on each
installment of principal so paid or not borrowed, during the period beginning on
the date of such payment or failure to borrow and ending on the last day of the
Interest Period relating thereto on which date such installment would have been
due (the "Reemployment Period"), exceeds (B) the total amount of interest which
would
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accrue, during the Reemployment Period, on any readily marketable bond or other
obligation of the United States of America designated by the Agent in its sole
discretion at or about the time of such payment, such bond or other obligation
of the United States of America to be in an amount equal (as nearly as may be)
to the amount of principal so paid or not borrowed and to have a maturity
comparable to the Reemployment Period, and the interest to accrue thereon to
take account of amortization of any discount from par or accretion of premium
above par at which the same is selling at the time of designation. Each such
amount is hereafter referred to as an "Installment Amount".
(ii) Second, each Installment Amount shall be treated as payable as of the
date on which the related principal installment would have been payable by the
Borrower had such principal installment not been prepaid or not borrowed.
(iii) Third, the amount to be paid on each such date shall be the present
value of the Installment Amount determined by discounting the amount thereof
from the date on which such Installment Amount is to be treated as payable, at
the same annual interest rate as that payable upon the bond or other obligation
of the United States of America designated as aforesaid by the Agent.
[SECTION] 4. CERTAIN GENERAL PROVISIONS.
--------------------------
[SECTION] 4.1. APPROVAL AND CO-LENDER FEE; AGENT'S FEE. The Borrower
agrees to pay (a) to the Agent an "Approval" fee and "Co-Lender" fee as defined
and set forth in the letter agreement dated March 11, 1996 between the Agent
and the Borrower (the "Approval Letter") and (b) to the Agent for its own
account, an agent's fee of $75,000 per annum, payable in equal installments
quarterly in arrears on May 1, August 1, November 1 and February 1 of each year
and on the Maturity Date. In the event of any conflict or inconsistency between
a provision set forth in the Approval Letter and a provision set forth in this
Agreement, the terms and provisions of this Agreement shall prevail.
[SECTION] 4.2. COMMITMENT FEE. The Borrower shall pay to the Agent for the
accounts of the Banks in accordance with their respective Commitment
Percentages, a commitment fee calculated at the rate of (a) one eighth of one
percent (.125%) per annum on the average daily amount during each calendar
quarter or portion thereof from the date hereof to the Maturity Date by which
the Total Commitment exceeds the outstanding amount of Loans plus the Maximum
Drawing Amount during such calendar quarter if the average outstanding amount of
the Loans plus the Maximum Drawing Amount during such calendar quarter is equal
to or more than 60% of the Total Commitment or (b) one quarter of one percent
(.25%) per annum on the average daily amount during each calendar quarter or
portion thereof from the date hereof to the Maturity Date by which the Total
Commitment exceeds the outstanding amount of Loans plus the Maximum Drawing
Amount during such calendar quarter if the average outstanding amount of the
Loans plus the Maximum Drawing Amount during such calendar quarter is less than
60% of the Total Commitment. The commitment fee shall be payable quarterly in
arrears on the first day of each calendar quarter for the immediately preceding
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calendar quarter commencing on the first such date following the date hereof,
with a final payment on the Maturity Date or any earlier date on which the
Commitments shall terminate.
[SECTION] 4.3. FUNDS FOR PAYMENTS.
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(a) All payments of principal, interest, closing fees, Letter of Credit
fees, commitment fees and any other amounts due hereunder (other than as
provided in [SECTION] 4.5 and [SECTION] 4.6) or under any of the other Loan
Documents, and all prepayments, shall be made to the Agent, for the respective
accounts of the Banks, at the Agent's Head Office, in each case in Dollars in
immediately available funds.
(b) All payments by the Borrower hereunder and under any of the other Loan
Documents shall be made without setoff or counterclaim and free and clear of and
without deduction for any taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, compulsory liens, restrictions or conditions of any
nature now or hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless the Borrower is
compelled by law to make such deduction or withholding. If any such obligation
is imposed upon the Borrower with respect to any amount payable by it hereunder
or under any of the other Loan Documents, the Borrower shall pay to the Agent,
for the account of the Banks or (as the case may be) the Agent, on the date on
which such amount is due and payable hereunder or under such other Loan
Document, such additional amount in Dollars as shall be necessary to enable the
Banks or the Agent to receive the same net amount which the Banks or the Agent
would have received on such due date had no such obligation been imposed upon
the Borrower. The Borrower will deliver promptly to the Agent certificates or
other valid vouchers for all taxes or other charges deducted from or paid with
respect to payments made by the Borrower hereunder or under such other Loan
Document.
[SECTION] 4.4. COMPUTATIONS. All computations of interest on the Loans
and of other fees to the extent applicable shall be based on a 360-day year and
paid for the actual number of days elapsed. Except as otherwise provided in the
definition of the term "Interest Period" with respect to Eurodollar Rate Loans
and LIBOR Rate Loans, whenever a payment hereunder or under any of the other
Loan Documents becomes due on a day that is not a Business Day, the due date
for such payment shall be extended to the next succeeding Business Day, and
interest shall accrue during such extension.
[SECTION] 4.5. ADDITIONAL COSTS, ETC. If any present or future
applicable law, which expression, as used herein, includes statutes, rules and
regulations thereunder and interpretations thereof by any competent court or by
any governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon
or otherwise issued to any Bank or the Agent by any central bank or other
fiscal, monetary or other authority (whether or not having the force of law),
shall:
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(a) subject any Bank or the Agent to any tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature with respect to this Agreement, the
other Loan Documents, such Bank's Commitment or the Loans (other than taxes
based upon or measured by the income or profits of such Bank or the Agent), or
(b) materially change the basis of taxation (except for changes in taxes on
income or profits) of payments to any Bank of the principal of or the interest
on any Loans or any other amounts payable to any Bank under this Agreement or
the other Loan Documents, or
(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Agreement) any special deposit,
reserve, assessment, liquidity, capital adequacy or other similar requirements
(whether or not having the force of law) against assets held by, or deposits in
or for the account of, or loans by, or Letters of Credit issued by, commitments
of an office of any Bank, or
(d) impose on any Bank any other conditions or requirements with respect to
this Agreement, the other Loan Documents, the Loans, the Commitment, or any
class of loans, Letters of Credit or commitments of which any of the Loans or
the Commitment forms a part;
and the result of any of the foregoing is
(i) to increase the cost to such Bank of making, funding, issuing,
renewing, extending or maintaining any of the Loans or such Bank's
Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest, or other amount
payable to such Bank or the Agent hereunder on account of the Commitments,
and Letters of Credit or any of the Loans, or
(iii) to require such Bank or the Agent to make any payment or to
forego any interest or other sum payable hereunder, the amount of which
payment or foregone interest or other sum is calculated by reference to the
gross amount of any sum receivable or deemed received by such Bank or the
Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, within ninety (90) days of
demand made by such Bank or (as the case may be) the Agent at any time and from
time to time and as often as the occasion therefor may arise, pay to such Bank
or the Agent, to the extent permitted by law, such additional amounts as will be
sufficient to compensate such Bank or the Agent for such additional cost,
reduction, payment or foregone interest or other sum.
[SECTION] 4.6. CAPITAL ADEQUACY. If any present or future law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) or the interpretation thereof by a court
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or governmental authority with appropriate jurisdiction affects the amount of
capital required or expected to be maintained by banks or bank holding companies
and any Bank or the Agent determines that the amount of capital required to be
maintained by it is increased by or based upon the existence of the Loans made
or deemed to be made pursuant hereto, then such Bank or the Agent may notify the
Borrower of such fact, and the Borrower shall pay to such Bank or the Agent from
time to time within ninety (90) days of demand, as an additional fee payable
hereunder, such amount as such Bank or the Agent shall determine in good faith
and certify in a notice to the Borrower to be an amount that will adequately
compensate such Bank or the Agent in light of these circumstances for its
increased costs of maintaining such capital. Each Bank and the Agent shall
allocate such cost increases among its customers in good faith and on an
equitable basis.
[SECTION] 4.7. CERTIFICATE. A certificate setting forth any additional
amounts payable pursuant to [SECTIONS] 4.5 or 4.6 and a brief
explanation of such amounts which are due, including reasonably detailed
information regarding the method and calculation of such amount, submitted by
any Bank or the Agent to the Borrower, shall be PRIMA FACIE evidence that such
amounts are due and owing.
[SECTION] 4.8. INDEMNITY. In addition to the other provisions of this
Agreement regarding any such matters, the Borrower agrees to indemnify each
Bank and to hold each Bank harmless from and against any loss, cost or
reasonable expense (including loss of the spread to which such Bank would have
been entitled through the end of the applicable Interest Period in excess of
the applicable interest rate(s) then in effect) that such Bank may sustain or
incur as a consequence of (a) a default by the Borrower in payment of the
principal amount of or any interest on any Eurodollar Rate Loans or LIBOR Rate
Loans as and when due and payable, including any such loss or expense caused by
Borrower's breach or other default and arising from interest or fees payable by
such Bank to lenders of funds obtained by it in order to maintain its
Eurodollar Rate Loans or LIBOR Rate Loans, (b) a default by the Borrower in
making a borrowing or conversion after the Borrower has given (or is deemed to
have given) a Loan Request or a Conversion Request, and (c) the making of any
payment of a Eurodollar Rate Loan or LIBOR Rate Loan or the making of any
conversion of a Eurodollar Rate Loan or a LIBOR Rate Loan to a Loan of another
Type on a day that is not the last day of the applicable Interest Period with
respect thereto, including interest or fees payable by such Bank to lenders of
funds obtained by it in order to maintain any such Eurodollar Rate Loan or
LIBOR Rate Loan; PROVIDED, however, that the Borrower shall not be required to
so indemnify any Bank pursuant to clause (b) above which wrongfully fails or
refuses to fund its proportionate share of a Loan in accordance with the terms
of this Agreement.
[SECTION] 4.9. INTEREST ON OVERDUE AMOUNTS. Overdue principal and (to
the extent permitted by applicable law) interest on the Loans and all other
overdue amounts payable hereunder or under any of the other Loan Documents
shall bear interest compounded monthly and payable on demand at a rate per
annum equal to four percent (4%) above the rate of interest otherwise payable
hereunder until such amount shall be paid in full (after as well as before
judgment). In addition, the Borrower shall pay to the Agent for the account of
the Banks a late charge equal to three percent (3%) of any
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amount of principal and/or interest and/or charges on the Loans which is not
paid within ten (10) days of the date when due.
[SECTION] 4.10. INABILITY TO DETERMINE EURODOLLAR RATE OR LIBOR RATE.
In the event, prior to the commencement of any Interest Period relating to any
Eurodollar Rate Loan or LIBOR Rate Loan, the Agent after consulting with the
Banks shall determine in good faith that adequate and reasonable methods do not
exist for ascertaining the Eurodollar Rate or the LIBOR Rate that would
otherwise determine the rate of interest to be applicable to any Eurodollar
Rate Loan or LIBOR Rate Loan during any Interest Period, the Agent shall
forthwith give notice of such determination (which shall be conclusive and
binding on the Borrower) to the Borrower. In such event (a) any Loan Request
with respect to Eurodollar Rate Loans or LIBOR Rate Loans, as the case may be,
shall be automatically withdrawn and shall be deemed a request for Base Rate
Loans, (b) each Eurodollar Rate Loan or LIBOR Rate Loan, as the case may be,
will automatically, on the last day of the then current Interest Period
thereof, become a Base Rate Loan, and (c) the obligations of the Banks to make
Eurodollar Rate Loans or LIBOR Rate Loans, as the case may be, shall be
suspended until the Agent determines in good faith that the circumstances
giving rise to such suspension no longer exist, whereupon the Agent shall
promptly so notify the Borrower.
[SECTION] 4.11. ILLEGALITY. Notwithstanding any other provisions
herein, if any present or future law, regulation, treaty or directive or in the
interpretation or application thereof shall make it unlawful for any Bank to
make or maintain Eurodollar Rate Loans or LIBOR Rate Loans, such Bank shall
forthwith give notice of such circumstances to the Borrower and thereupon (a)
the Commitment of such Bank to make Eurodollar Rate Loans or LIBOR Rate Loans,
as the case may be, or convert Loans of another Type to Eurodollar Rate Loans
or LIBOR Rate Loans, as the case may be, shall forthwith be suspended and (b)
the Eurodollar Rate Loans or LIBOR Rate Loans, as the case may be, then
outstanding shall be converted automatically to Base Rate Loans on the last day
of each Interest Period applicable to such Eurodollar Rate Loans or LIBOR Rate
Loans or within such earlier period as may be required by law. The Borrower
hereby agrees promptly to pay to the Agent for the account of such Bank, upon
demand, any additional amounts necessary to compensate such Bank for any costs
incurred by such Bank in making any conversion in accordance with this
[SECTION] 4.11, including any interest or fees payable by such Bank to lenders
of funds obtained by it in order to make or maintain its Eurodollar Rate Loans
or LIBOR Rate Loans hereunder.
[SECTION] 5. INTENTIONALLY OMITTED.
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[SECTION] 6. REPRESENTATIONS AND WARRANTIES. The Borrower represents
and warrants to the Agent and each of the Banks as follows.
[SECTION] 6.1. AUTHORITY; ETC.
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(a) ORGANIZATION; GOOD STANDING. The Borrower and each Subsidiary which is
a Borrower (i) is a corporation or other entity duly organized under the laws of
its state of organization and is validly existing and in good standing under the
laws of such state, (ii) has all requisite corporate or partnership or other
organizational power to own its properties and conduct its business as now
conducted and as presently contemplated, and (iii) to the extent required by law
is in good standing as a foreign entity and is duly authorized to do business in
each jurisdiction where such qualification is necessary except where a failure
to be so qualified in such other jurisdiction would not have a materially
adverse effect on the business, properties or financial condition of the
Borrower. Each of the Subsidiaries that is not a Borrower is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has all requisite power to conduct its business as now
conducted in each jurisdiction where its business is conducted.
(b) AUTHORIZATION. The execution, delivery and performance of this
Agreement and the other Loan Documents to which the Borrower is to become a
party and the transactions contemplated hereby and thereby (i) are within the
organizational authority of the Borrower, (ii) have been duly authorized by all
necessary organizational proceedings on the part of the Borrower, (iii) do not
materially conflict with or result in any material breach or contravention of
any provision of law, statute, rule or regulation to which the Borrower or any
of its Subsidiaries is subject or any judgment, order, writ, injunction, license
or permit applicable to the Borrower or any of its Subsidiaries and (iv) do not
materially conflict with any provision of its articles of incorporation or other
charter documents or bylaws of, or any agreement or other instrument binding
upon, the Borrower or any of its Subsidiaries or to which any of their
properties are subject.
(c) ENFORCEABILITY. The execution and delivery of this Agreement and the
other Loan Documents to which the Borrower is or is to become a party will
result in valid and legally binding obligations of the Borrower enforceable
against it in accordance with the respective terms and provisions hereof and
thereof, except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that availability of
the remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be brought.
[SECTION] 6.2. GOVERNMENTAL APPROVALS. The execution, delivery and
performance by the Borrower of this Agreement and the other Loan Documents to
which the Borrower is or is to become a party and the transactions contemplated
hereby and thereby do not require the approval or consent of, or filing with,
any governmental agency or authority other than those already obtained or those
which
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would not have a material adverse effect on the Borrower or any of its
Subsidiaries or any of the properties if not obtained.
[SECTION] 6.3. TITLE TO PROPERTIES; LEASES. Except as indicated on the
consolidated balance sheet or on SCHEDULE 6.3 hereto, the Borrower and its
Subsidiaries own all of the properties reflected in the consolidated balance
sheet of the Borrower and its Subsidiaries as at the Balance Sheet Date or
acquired since that date (except properties sold or otherwise disposed of since
that date).
[SECTION] 6.4. FINANCIAL STATEMENTS. The following financial statements
have been furnished to each of the Banks.
(a) A consolidated pro forma balance sheet of the Borrower (for each of
Xxxxxxx Real Estate, Inc. and Xxxxxx Properties Corporation) and its
Subsidiaries as included in the Registration Statement as of September 30, 1995,
and a pro forma statement of income for the period ended September 30, 1995.
There are no contingent liabilities of the Borrower or any of its Subsidiaries
as of such date involving material amounts, known to the officers of the
Borrower not disclosed in the Registration Statement.
(b) Operating statements for each of the Real Estate Assets for the periods
ending September 30, 1995 and December 31, 1995.
(c) The Business Plan Summary of the Borrower.
[SECTION] 6.5. NO MATERIAL CHANGES, ETC. Since the Balance Sheet Date,
there has occurred no material adverse change in the financial condition or
assets or business of the Borrower and its Subsidiaries as shown on or
reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries as of the Balance Sheet Date, or the other statements contained in
the Registration Statement, other than changes in the ordinary course of
business that have not had any material adverse effect on the business or
properties or financial condition of the Borrower or its Subsidiaries, taken as
a whole.
[SECTION] 6.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. Except as set forth in
SCHEDULE 6.6, each of the Borrower and its Subsidiaries possesses all material
franchises, patents, copyrights, trademarks, trade names, licenses and permits,
and rights in respect of the foregoing, adequate for the conduct of its business
substantially as now conducted without known conflict with any rights of others,
including all material Permits.
[SECTION] 6.7. LITIGATION. Except as listed and described on SCHEDULE
6.7 hereto, there are no actions, suits, proceedings or investigations of any
kind pending or, to Borrower's knowledge, threatened against the Borrower or
any of its Subsidiaries before any court, tribunal or administrative agency or
board that, if adversely determined, might, either in any case or in the
aggregate, materially adversely affect the properties, financial condition or
business of the Borrower and its Subsidiaries
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or materially impair the right of the Borrower and its Subsidiaries to carry on
business substantially as now conducted by them, or which question the validity
of this Agreement or any of the other Loan Documents, any action taken or to be
taken pursuant hereto or thereto, or which will materially adversely affect the
ability of the Borrower to pay and perform the Obligations in the manner
contemplated by this Agreement and the other Loan Documents.
[SECTION] 6.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the
Borrower nor any of its Subsidiaries is subject to any charter, trust or other
legal restriction, or any judgment, decree, order, rule or regulation that has
or is expected in the future to have a materially adverse effect on the
business, properties or financial condition of the Borrower or any of its
Subsidiaries. Neither the Borrower nor any of its Subsidiaries is a party to
any contract or agreement that has or is expected, in the judgment of the
Borrower's officers, to have any materially adverse effect on the business,
properties or financial condition of the Borrower or any of its Subsidiaries.
[SECTION] 6.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither
the Borrower nor any of its Subsidiaries is in violation of any provision of
its articles of incorporation or other charter documents, by-laws, or any
agreement or instrument to which it is subject or by which it or any of its
properties is bound or any decree, order, judgment, statute, license, rule or
regulation, in any of the foregoing cases in a manner that could materially
adversely affect the financial condition, properties or business of the
Borrower or any of its Subsidiaries.
[SECTION] 6.10. TAX STATUS. The Borrower and its Subsidiaries (a) have
made or filed all federal and state income and all other tax returns, reports
and declarations required by any jurisdiction to which it is subject, and (b)
have paid all taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority
of any jurisdiction, and the officers of the Borrower know of no basis for any
such claim.
[SECTION] 6.11. NO EVENT OF DEFAULT. No Default or Event of Default has
occurred and is continuing.
[SECTION] 6.12. INVESTMENT COMPANY ACT. Neither the Borrower nor any of its
Subsidiaries is an "investment company", or an "affiliated company" or a
"principal underwriter" of an "investment company", as such terms are defined in
the Investment Company Act of 1940.
[SECTION] 6.13. ABSENCE OF FINANCING STATEMENTS, ETC. There is no Lien that
purports to cover, affect or give notice of any present or possible future lien
or encumbrance on, or security interest in, any properties of the Borrower or
any of its Subsidiaries or any rights relating thereto, except with respect to
Permitted Liens.
[SECTION] 6.14. INTENTIONALLY OMITTED.
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[SECTION] 6.15. CERTAIN TRANSACTIONS. Except as set forth on SCHEDULE
6.15 hereto, and except for ordinary course, arm's length transactions, none of
the officers, directors or employees of the Borrower or any of its Subsidiaries
is presently a party to any transaction with the Borrower or any of its
Subsidiaries (other than for services as employees, officers and trustees),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Borrower, any
corporation, partnership, trust or other entity in which any officer, director
or any such employee or natural Person related to such officer, director or
employee or other Person in which such officer, director or employee has a
direct or indirect beneficial interest has a substantial interest or is an
officer or director.
[SECTION] 6.16. EMPLOYEE BENEFIT PLANS; MULTIEMPLOYER PLANS; GUARANTEED
PENSION PLANS. As of the date hereof, neither the Borrower nor any ERISA
Affiliate maintains or contributes to any Guaranteed Pension Plan. Borrower
presently contributes to the Multiemployer Plans specified on SCHEDULE 6.16
attached hereto. Borrower presently maintains and contributes to Employee
Benefit Plans. To the extent that Borrower or any ERISA Affiliate maintains or
contributes to any Employee Benefit Plan, Multiemployer Plan or Guaranteed
Pension Plan, it has, and shall at all times in the future, do so in compliance
with [SECTION] 7.19 hereof.
[SECTION] 6.17. REGULATIONS U AND X. No portion of any Loan is to be
used for the purpose of purchasing or carrying any "margin security" or "margin
stock" as such terms are used in Regulations U and X of the Board of Governors
of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
[SECTION] 6.18. ENVIRONMENTAL COMPLIANCE. The Borrower has taken all
necessary steps to investigate the past and present condition and usage of the
Real Estate and the operations conducted thereon. Based upon such
investigation, to Borrower's knowledge, except as set forth in the
environmental reports delivered to the Agent, in the Registration Statement or
on SCHEDULE 6.18 attached hereto:
(a) None of the Borrower or any of its Subsidiaries, or any operator of the
Real Estate or any portion thereof, or any operations thereon is in violation,
or alleged material violation, of any judgment, decree, order, law, license,
rule or regulation pertaining to environmental matters (hereinafter collectively
referred to as the "Environmental Laws"), including without limitation, those
arising under the Resource Conservation and Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 as
amended ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986
("XXXX"), the Federal Clean Water Act, the Federal Clean Air Act, the Toxic
Substances Control Act, or any state or local statute, regulation, ordinance,
order or decree relating to health, safety or the environment, including,
without limitation, the environmental statutes, regulations, orders and decrees
of the states in which such Real Estate
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is located, which violation would have a material adverse effect on the
business, properties or financial condition of the Borrower or its Subsidiaries.
(b) Neither the Borrower nor any of its Subsidiaries has received
written notice from any third party including, without limitation any federal,
state or local governmental authority, (i) that it has been identified by the
United States Environmental Protection Agency ("EPA") as a potentially
responsible party under CERCLA with respect to a site listed on the National
Priorities List, 40 C.F.R. Part 000 Xxxxxxxx X (1986); (ii) that any hazardous
waste, as defined by 42 U.S.C. [SECTION] 9601(5), any hazardous substances as
defined by 42 U.S.C. [SECTION] 9601(14), any pollutant or contaminant as
defined by 42 U.S.C. [SECTION] 9601(33) or any toxic substances, oil or
hazardous materials or other chemicals or substances regulated by any
Environmental Laws ("Hazardous Materials") which it has generated, transported
or disposed of have been found at any site at which a federal, state or local
agency or other third party has conducted or has ordered that the Borrower or
any of its Subsidiaries conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law; or (iii) that it is or shall
be a named party to any claim, action, cause of action, complaint, or legal or
administrative proceeding (in each case, contingent or otherwise) arising out
of any third party's incurrence of costs, expenses, losses or damages of any
kind whatsoever in connection with the release of Hazardous Materials.
(c) (i) No portion of the Real Estate has been used for the handling,
processing, storage or disposal of Hazardous Materials except in material
compliance with applicable Environmental Laws; and except as set forth on
SCHEDULE 6.18, no underground tank or other underground storage receptacle for
Hazardous Materials is located on any portion of the Real Estate; (ii) in the
course of any activities conducted by the Borrower or any of its Subsidiaries,
or the operators of any Real Estate, or to the best of Borrower's knowledge, any
ground or space tenants on any Real Estate, no Hazardous Materials have been
generated or are being used on the Real Estate except in material compliance
with applicable Environmental Laws; (iii) there has been no present or, to the
best of Borrower's knowledge, past, releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, disposing or
dumping (a "Release") or threatened Release of Hazardous Materials on, upon,
into or from the Real Estate in violation of applicable Environmental Laws,
which Release would have a material adverse effect on the value of any of such
Real Estate or adjacent real property; (iv) to the best of Borrower's knowledge,
there have been no Releases in violation of applicable Environmental Laws, on,
upon, from or into any real property in the vicinity of any of the Real Estate
which, through soil or groundwater contamination, may have come to be located
on, and which would have a material adverse effect on the value of, the Real
Estate; and (v) to the best of Borrower's knowledge, any Hazardous Materials
that have been generated on any of the Real Estate have been transported
off-site in compliance with applicable Environmental Laws. Notwithstanding that
any representation contained herein may be limited to the knowledge of the
Borrower, any such limitation shall not affect the covenants specified in
[SECTION] 7.10 or elsewhere in this Xxxxxxxxx.
00
00
(x) Xxxx of the Real Estate is or shall be subject to any applicable
environmental clean-up responsibility law or environmental restrictive transfer
law or regulation, solely by virtue of the transactions set forth herein and
contemplated hereby.
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[SECTION] 6.19. SUBSIDIARIES. Schedule 6.19 hereto contains, as of the
Closing Date, an accurate list of all of the presently existing Subsidiaries of
the Borrower, setting forth their respective jurisdictions of organization and
the percentage of their respective Capital Stock owned by the Borrower or other
Subsidiaries of the Borrower. All of the issued and outstanding shares of
Capital Stock of such Subsidiaries have been duly authorized and issued and are
fully paid and non-assessable. Xxxxxxx Financing Partnership is not permitted
to be a Borrower to this Agreement. Each Subsidiary which hereafter becomes a
Borrower shall as a condition of becoming a Borrower comply with [SECTIONS]
10.2, 10.3, 10.4, 10.7 and 10.13.
[SECTION] 6.20. LOAN DOCUMENTS. All of the representations and
warranties of the Borrower and its Subsidiaries made in the other Loan
Documents are true and correct in all material respects.
[SECTION] 7. AFFIRMATIVE COVENANTS OF THE BORROWER. The Borrower covenants
and agrees as follows, so long as any Loan, Letter of Credit or Note is
outstanding or the Banks have any obligations to make Loans or the Agent has any
obligation to issue, extend or renew any Letters of Credit:
[SECTION] 7.1. PUNCTUAL PAYMENT. The Borrower will unconditionally duly and
punctually pay the principal and interest on the Loans, the Letter of Credit
fees, and all other amounts provided for in the Note, this Agreement, and the
other Loan Documents all in accordance with the terms of the Note, this
Agreement and the other Loan Documents.
[SECTION] 7.2. MAINTENANCE OF OFFICE. The Borrower will maintain its chief
executive office in Boston, Massachusetts or at such other place in the United
States of America as the Borrower shall designate upon written notice to the
Agent to be delivered within fifteen (15) days of such change, where notices,
presentations and demands to or upon the Borrower in respect of the Loan
Documents may be given or made.
[SECTION] 7.3. RECORDS AND ACCOUNTS. The Borrower will (a) keep, and
cause each of its Subsidiaries to keep, true and accurate records and books of
account in which full, true and correct entries in all material respects will
be made in accordance with generally accepted accounting principles and (b)
maintain adequate accounts and reserves for all taxes (including income taxes),
depreciation and amortization of its properties and the properties of its
Subsidiaries, contingencies, and other reserves.
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[SECTION] 7.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The
Borrower will deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than ninety (90)
days after the end of each fiscal year of the Borrower, the audited consolidated
balance sheet of the Borrower and its Subsidiaries at the end of such year, and
the related consolidated audited statement of income, statement of changes in
shareholders' equity and statement of cash flows for such year, each setting
forth in comparative form the figures for the previous fiscal year and all such
statements to be in reasonable detail, prepared in accordance with generally
accepted accounting principles, and accompanied by an auditor's report prepared
without qualification by K.P.M.G. Peat Marwick or by another independent
certified public accountant reasonably acceptable to the Agent and each of the
Banks;
(b) as soon as practicable, but in any event not later than forty-five (45)
days after the end of the March 31, June 30 and September 30 fiscal quarters of
the Borrower, copies of the unaudited consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such quarter, and the related unaudited
statement of income, statement of changes in shareholders' equity and statement
of cash flows for the portion of the Borrower's fiscal year then elapsed, all in
reasonable detail and prepared in accordance with generally accepted accounting
principles (which may be provided by inclusion in the Form 10-Q of the Borrower
filed with the SEC for such period provided pursuant to subsection (g) below),
together with a certification by the principal financial or accounting officer
of the Borrower that the information contained in the financial statements
accompanying such filing fairly presents the financial position of the Borrower
on the date thereof (subject to year-end adjustments);
(c) As soon as practicable, but in any event not later than 45 days after
the end of each fiscal quarter of the Borrower, the following reports in form
and substance reasonably satisfactory to the Agent, all certified by the
entity's chief financial officer or chief accounting officer: a statement of
Funds From Operations, a statement of cash flows for each individual Real Estate
Asset, a statement detailing Consolidated Outstanding Indebtedness, Consolidated
Secured Indebtedness, Consolidated Unsecured Indebtedness, and Consolidated Cash
Flow, a listing of capital expenditures, a report listing and describing all
newly acquired Real Estate Assets, including their projected net operating
income, cash flow, cost and secured or unsecured Indebtedness assumed in
connection with such acquisition, if any, summary information and such other
information on all Real Estate Assets as may be reasonably requested;
(d) as soon as practicable, but in any event not later than forty-five
(45) days after the end of each of the fiscal quarters of the Borrower, copies
of a statement of the Consolidated Net Operating Income for such fiscal quarter
for each Real Estate Asset, prepared on a basis consistent with the statements
furnished pursuant to [SECTION] 6.4(c), certified by the chief financial or
accounting officer of the Borrower;
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(e) as soon as practicable, but in any event no later than forty-five (45)
days after the end of each fiscal quarter of the Borrower, the Borrower will
provide the Agent with (i) a current rent roll and record of the billed rent and
common area maintenance charges (if applicable) for each tenant, and (ii) a
schedule of any environmental remediation costs payable with respect to such
Real Estate Asset;
(f) simultaneously with the delivery of the financial statements referred
to in subsections (a) and (b) above, a Compliance Certificate and (if
applicable) reconciliations to reflect changes in generally accepted accounting
principles since the Balance Sheet Date;
(g) as soon as practicable, but in any event not later than ninety (90)
days after the end of each fiscal year of the Borrower, copies of the Form 10-K
statement filed with the Securities and Exchange Commission ("SEC") for such
fiscal year, and as soon as practicable, but in any event not later than
forty-five (45) days after the end of each fiscal quarter, copies of the Form
10-Q statement filed with the SEC for such fiscal quarter, PROVIDED that in
either case if the SEC has granted an extension for the filing of such
statements, Borrower shall deliver such statements to the Agent simultaneously
with the filing thereof with the SEC;
(h) promptly following the filing or mailing thereof, copies of all other
material of a financial nature filed with the SEC or sent to the shareholders of
the Borrower;
(i) promptly after request by the Agent, evidence of payment of real estate
taxes, other taxes, assessments and other governmental charges against the Real
Estate, in the form of receipted tax bills or other evidence reasonably
acceptable to the Agent; and
(j) from time to time such other financial data and information as the
Agent may reasonably request and which are reasonably necessary for the Banks to
complete their financial analysis of Borrower.
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[SECTION] 7.5. NOTICES.
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(a) DEFAULTS. The Borrower will promptly after obtaining knowledge of the
same notify the Agent in writing of the occurrence of any Default or Event of
Default, or a Non-Material Breach having a material adverse effect on an
Unencumbered Asset or a Subsidiary taken as a whole that owns Unencumbered
Assets. If any Person shall give any notice or take any other action in respect
of a claimed default (whether or not constituting a Default or an Event of
Default under this Agreement) under any note, evidence of Indebtedness,
indenture or other obligation to which or with respect to which the Borrower or
any of its Subsidiaries is a party or obligor, whether as principal or surety,
and such default would permit the holder of such note or obligation or other
evidence of Indebtedness to accelerate the maturity thereof, which acceleration
would have a material adverse effect on the Borrower and its Subsidiaries taken
as a whole, the Borrower shall forthwith give written notice thereof to the
Agent and each of the Banks, describing the notice or action and the nature of
the claimed default.
(b) ENVIRONMENTAL EVENTS. The Borrower will promptly notify the Agent in
writing of any of the following events: (i) upon Borrower's obtaining knowledge
of any violation of any Environmental Law regarding any Real Estate or
Borrower's or any of its Subsidiaries' operations which violation could have a
material adverse effect on such Real Estate or on Borrower's or such
Subsidiary's operations; (ii) upon Borrower's obtaining knowledge of any
potential or known Release of any Hazardous Substance at, from, or into any Real
Estate which it reports in writing or is reportable by it in writing to any
governmental authority and which is material in amount or nature or which could
materially adversely affect the value of such Real Estate; (iii) upon Borrower's
receipt of any notice of violation of any Environmental Laws or of any Release
of Hazardous Substances in violation of applicable Environmental Laws, including
a notice or claim of liability or potential responsibility from any third party
(including without limitation any federal, state or local governmental
officials) and including notice of any formal inquiry, proceeding, demand,
investigation or other action with regard to (A) Borrower's or any Person's
operation of any Real Estate, (B) contamination on, from or into any Real
Estate, or (C) investigation or remediation of off-site locations at which
Borrower, any of its Subsidiaries or any of their predecessors are alleged to
have directly or indirectly disposed of Hazardous Substances; or (iv) upon
Borrower's obtaining knowledge that any expense or loss has been incurred by
such governmental authority in connection with the assessment, containment,
removal or remediation of any Hazardous Substances with respect to which
Borrower or any of its Subsidiaries may be liable or for which a lien may be
imposed on any Real Estate.
(c) NOTIFICATION OF CLAIMS AGAINST REAL ESTATE. The Borrower will, promptly
upon becoming aware thereof, notify the Agent in writing of any setoff, claims,
withholdings or other defenses which could have a material adverse effect on any
Real Estate.
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(d) NOTICE OF LITIGATION AND JUDGMENTS. The Borrower will, and will cause
each of its Subsidiaries to, give notice to the Agent in writing within fifteen
(15) days of becoming aware of any litigation or proceedings threatened in
writing or any pending litigation and proceedings affecting the Borrower or any
of its Subsidiaries or to which the Borrower or any of its Subsidiaries is or is
to become a party involving an uninsured claim (or as to which the insurer
reserves rights) against the Borrower or any of its Subsidiaries that at the
time of giving of notice could reasonably be expected to have a materially
adverse effect on the Borrower or any of its Subsidiaries or their properties,
business or financial condition, and stating the nature and status of such
litigation or proceedings. The Borrower will, and will cause each of its
Subsidiaries to, give notice to the Agent, in writing, in form and detail
reasonably satisfactory to the Agent, within ten (10) days of any judgment not
covered by insurance, final or otherwise, against the Borrower or any of its
Subsidiaries in an amount in excess of $300,000.
[SECTION] 7.6. EXISTENCE; MAINTENANCE OF REIT STATUS; MAINTENANCE OF
PROPERTIES. The Borrower will do or cause to be done all things necessary to
preserve and keep in full force and effect its status as a real estate
investment trust in compliance with all applicable provisions of the Code
relating to such status. The Borrower will do or cause to be done all things
necessary to preserve and keep in full force its organizational existence,
rights and franchises, and those of its Subsidiaries, which in the judgment of
the Borrower may be necessary to properly and advantageously conduct the
businesses being conducted by it and its Subsidiaries. The Borrower will, in a
manner not inconsistent with its Business Plan Summary, (a) cause all of its
properties and those of its Subsidiaries used or useful in the conduct of its
business or the business of its Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment,
(b) cause to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Borrower may be
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times, and (c) continue, and cause
its Subsidiaries to continue, to engage primarily in the businesses now
conducted by them and in related businesses, to the extent necessary to comply
with the other terms and conditions set forth in this Agreement.
[SECTION] 7.7. INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, maintain insurance with financially sound and reputable
insurers against such casualties and contingencies as shall be in accordance
with the general practices of businesses engaged in similar activities in
similar geographic areas and in amounts, containing such terms, in such forms
and for such periods as may be reasonable and prudent. At the request of the
Agent, the Borrower will provide the Agent with evidence of such insurance.
[SECTION] 7.8. TAXES; MECHANICS' AND MATERIALMENS' LIENS. The Borrower
will, and will cause each of its Subsidiaries to, pay real estate taxes, other
taxes, assessments and other governmental charges against the Real Estate
before the same become delinquent, and will duly pay and discharge, or cause to
be paid and discharged, before the same shall become overdue, all taxes,
assessments and other
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governmental charges imposed upon it and its other properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a lien or charge upon any of its properties; PROVIDED that any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if the Borrower or such Subsidiary shall have set aside on its books
adequate reserves with respect thereto; and PROVIDED FURTHER that the Borrower
and each Subsidiary of the Borrower will pay all such taxes, assessments,
charges, levies or similar governmental claims forthwith prior to consummation
of proceedings to foreclose any Lien that may have attached as security
therefor.
[SECTION] 7.9. INSPECTION OF PROPERTIES AND BOOKS.
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(a) The Borrower shall permit the Banks, through the Agent or any of the
Banks' other designated representatives, to visit and inspect any of the Real
Estate, to examine the books of account of the Borrower and its Subsidiaries
(and to make copies thereof and extracts therefrom) and to discuss the affairs,
finances and accounts of the Borrower and its Subsidiaries with, and to be
advised as to the same by, its officers, all during regular business hours and
upon reasonable advance notice, in each case at the expense of the Banks except
as set forth in [SECTION] 7.9(b).
(b) The Borrower shall permit the Agent, through the Agent or any of the
Agent's other designated representatives, on an annual basis and at the expense
of the Borrower, to visit and inspect a representative sample (it being agreed
that the goal shall be to visit all of the properties during the term of this
Agreement) of the properties of the Borrower and its Subsidiaries (during
regular business hours and upon reasonable advance notice) and to review
environmental and hazardous waste inspection reports and reports of third party
inspecting engineers regarding structural matters with respect to such
properties. The Banks may employ professional engineering and environmental
consultants to assist them in the review of such reports, and the fees and
expenses of such consultants shall also be paid by the Borrower.
[SECTION] 7.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. The
Borrower will, and will cause each of its Subsidiaries to, comply with (a) all
applicable laws and regulations now or hereafter in effect wherever its business
is conducted, including all Environmental Laws, (b) the provisions of its
organizational documents, and other charter documents and by-laws, (c) all
agreements and instruments to which it is a party or by which it or any of its
Real Estate Assets may be bound, including the Leases, and (d) all applicable
decrees, orders, and judgments, unless such non-compliance constitutes a
Non-Material Breach. If at any time any Permit from any governmental Person
shall be required in order that the Borrower may fulfill or be in compliance
with any of its obligations hereunder, the Borrower will immediately take or
cause to be taken all reasonable steps within the power of the Borrower to
obtain such authorization, consent, approval, permit or license and furnish the
Agent and the Banks with evidence thereof.
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[SECTION] 7.11. LESSEE COMPLIANCE WITH ENVIRONMENTAL LAWS. Borrower and
each of its Subsidiaries shall use reasonable efforts to ensure compliance in
all material respects by all tenants and subtenants, if any, with, all
applicable Environmental Laws and to ensure that all tenants and subtenants
obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws, except to the extent that failure to do so would constitute a
Non-Material Breach; PROVIDED that in no event shall the Borrower or its
Subsidiaries be required to modify the terms of Leases, or renewals thereof,
with any tenants (i) at properties owned by the Borrower or its Subsidiaries as
of the date hereof, or (ii) at properties hereafter acquired by the Borrower or
its Subsidiaries as of the date of such acquisition, to add provisions to such
effect.
[SECTION] 7.12. ENVIRONMENTAL ASSESSMENTS. Prior to the acquisition of
a Real Estate Asset after the Closing Date, the Borrower will, and will cause
each of its Subsidiaries to, perform or cause to be performed a Phase I
environmental site assessment report in accordance with ASTM standards. In
connection with any such investigation, the Borrower shall cause to be prepared
a report of such investigation, to be made available to any Bank upon
reasonable request, for informational purposes and to assure compliance with
the specifications and procedures.
[SECTION] 7.13. USE OF PROCEEDS. Subject to the provisions of [SECTION]
2.5 hereof, the proceeds of the Loans shall be used by the Borrower for working
capital purposes (up to an aggregate of $25,000,000 outstanding at any time) as
permitted by [SECTION] 2.5(b) hereof, tenant improvements, leasing commissions,
improvements necessary for the operation of the Real Estate Assets, repayment
of indebtedness, payment of loan fees and closing costs, acquisitions of Real
Estate in accordance with the Borrower's Business Plan Summary delivered to the
Agent herewith and as permitted by [SECTION] 2.5(c) hereof, and payment of
costs of Assets Under Development as permitted by [SECTION] 2.5(d) and
[SECTION] 9.7.
[SECTION] 7.14. FURTHER ASSURANCES. The Borrower will, and will cause
each of its Subsidiaries to, cooperate with the Agent and the Banks and execute
such further instruments and documents and perform such further acts as the
Agent and the Banks shall reasonably request to carry out to their satisfaction
the transactions contemplated by this Agreement and the other Loan Documents.
[SECTION] 7.15. INTEREST RATE PROTECTION. The Borrower shall maintain
in effect interest rate protection arrangements, in form and substance
reasonably satisfactory to the Agent, providing for the rate of interest
applicable to the Loans to be capped at a rate satisfactory to the Agent with
respect to a portion equal to not less than $100,000,000 for a period of two
(2) years from the Effective Date. The Borrower shall maintain such
arrangements in full force and effect during the period specified above, and
shall not, without the written consent of the Agent, modify terminate or
transfer such arrangements during such period.
[SECTION] 7.16 REAL ESTATE ASSETS SUBSEQUENTLY ACQUIRED. Within
forty-five (45) days after the acquisition of a Real Estate Asset permitted by
[SECTION] 2.5(c) or [SECTION] 2.5(d) hereof, Borrower shall, to the
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extent in Borrower's possession, provide to the Agent with respect to such Real
Estate Asset (i) a construction engineer's statement of condition report, (ii) a
capital expenditure program, (iii) an actual historical operating statement (to
the extent available to the Borrower), (iv) historical operating statement
estimated by the Borrower (to the extent a true historical operating statement
is not available to the Borrower), (v) a ten year cash flow analysis, (vi)
financial statements and profiles for all major tenants and guarantors (to the
extent available to the Borrower), (vii) insurance certificates for such Real
Estate Asset, and (viii) the investment summary presented to the Board of
Directors of the Borrower with respect to such acquisition.
[SECTION] 7.17. ENVIRONMENTAL INDEMNIFICATION. The Borrower covenants
and agrees that it will indemnify and hold the Agent and each Bank harmless
from and against any and all claims, expense, damage, loss or liability
incurred by the Agent or any Bank (including all reasonable costs of legal
representation incurred by the Agent or any Bank, but excluding, as applicable,
for the Agent or a Bank any claim, expense, damage, loss or liability as a
result of the gross negligence or willful misconduct of the Agent or such Bank)
relating to (a) any Release or threatened Release of Hazardous Substances on
any Real Estate; (b) any violation of any Environmental Laws with respect to
conditions at any Real Estate or the operations conducted thereon; or (c) the
investigation or remediation of off-site locations at which the Borrower or any
of its Subsidiaries or their predecessors are alleged to have directly or
indirectly disposed of Hazardous Substances. It is expressly acknowledged by
the Borrower that this covenant of indemnification shall survive the payment of
the Loans and shall inure to the benefit of the Agent and the Banks, and their
successors and assigns.
[SECTION] 7.18. RESPONSE ACTIONS. The Borrower covenants and agrees
that if any Release or disposal of Hazardous Substances shall occur or shall
have occurred on any Real Estate in violation of applicable Environmental Laws,
the Borrower will cause the prompt containment and removal of such Hazardous
Substances and remediation of such Real Estate as necessary to comply with all
Environmental Laws.
[SECTION] 7.19. EMPLOYEE BENEFIT PLANS.
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(a) REPRESENTATION. The Borrower and its ERISA Affiliates do not currently
maintain or contribute to any Guaranteed Pension Plan.
(b) NOTICE. The Borrower will obtain the consent of the Agent and the Banks
prior to the establishment of any Guaranteed Pension Plan by the Borrower or any
ERISA Affiliate.
(c) IN GENERAL. Each Employee Benefit Plan maintained by the Borrower or
any ERISA Affiliate will be operated in compliance in all material respects with
the provisions of ERISA and, to the extent applicable, the Code, including but
not limited to the provisions thereunder respecting prohibited transactions.
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(d) TERMINABILITY OF WELFARE PLANS. Except as provided in SCHEDULE
7.19, with respect to each Employee Benefit Plan maintained by the Borrower or
an ERISA Affiliate which is an employee welfare benefit plan within the meaning
of [SECTION] 3(1) or [SECTION] 3(2)(B) of ERISA, the Borrower, or the ERISA
Affiliate, as the case may be, has the right to terminate each such plan at any
time (or at any time subsequent to the expiration of any applicable bargaining
agreement) without liability other than liability to pay claims incurred prior
to the date of termination.
(e) MULTIEMPLOYER PLANS. Without the consent of the Agent, the Borrower
will not enter into, maintain or contribute to, any Multiemployer Plan, other
than the Multiemployer Plans specified on SCHEDULE 6.16.
(f) UNFUNDED OR UNDERFUNDED LIABILITIES. The Borrower will not, at any
time, have accrued, unfunded or underfunded liabilities with respect to Employee
Benefit Plans in an amount exceeding $500,000 in the aggregate, or with respect
to Guaranteed Pension Plans in an amount exceeding $1,000,000 in the aggregate,
or permit any condition to exist under Multiemployer Plans that would create
withdrawal liability in an amount exceeding $1,000,000 in the aggregate.
[SECTION] 7.20. CAPITAL FOR DEVELOPMENT AND ACQUISITION. The Borrower
will, and will cause each of its Subsidiaries to, maintain available to it
sources of Unrestricted Cash and Cash Equivalents which are equal to or greater
than the sum of (a) the total cost to complete all Assets Under Development by
the Borrower and its Subsidiaries PLUS (b) the total amount that the Borrower
and its Subsidiaries may be obligated to pay under agreements for the purchase
of Real Estate Assets, which sources may include the amount of the Total
Commitment available to Borrower under this Agreement in excess of outstanding
Loans.
[SECTION] 7.21. NO AMENDMENT TO CERTAIN DOCUMENTS. The Borrower will
not, and will not permit any of its Subsidiaries to, cause or permit its
certificate of incorporation or by-laws or other organizational or charter
documents to be modified, amended or supplemented in any respect without the
prior written consent of the Agent if such modification would affect the
Borrower's status as a real estate investment trust or otherwise materially
adversely affect the rights of the Banks and the Agent hereunder or under any
of the other Loan Documents.
[SECTION] 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. The Borrower
covenants and agrees as follows, so long as any Loan, Letter of Credit or Note
is outstanding or the Banks have any obligation to make any Loans or the Agent
or any Fronting Bank has any obligations to issue, extend or renew any Letters
of Credit:
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[SECTION] 8.1. RESTRICTIONS ON INDEBTEDNESS AND TOTAL INDEBTEDNESS
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The Borrower may, and may permit its Subsidiaries to, create, incur,
assume, guarantee or be or remain liable for, contingently or otherwise, any
Total Indebtedness other than the specific Total Indebtedness which is
prohibited under this [SECTION] 8.1 and with respect to which the Borrower will
not, and will not permit any of its Subsidiaries to, create, incur, assume,
guarantee or be or remain liable for, contingently or otherwise, as follows:
(i) Consolidated Unsecured Indebtedness (excluding the Obligations) in an
amount in excess of $1,000,000 at any one time until such time as the Borrower
receives a long term unsecured debt rating or Indicative Rating from either
Xxxxx'x or S&P, of not less than BBB- or Baa3, whichever is applicable;
(ii) Consolidated Secured Indebtedness in an aggregate amount which would
create a Default under [SECTION] 9.2 hereof;
(iii) An aggregate amount in excess of $500,000 at any one time in respect
of taxes, assessments, governmental charges or levies and claims for labor,
materials and supplies for which payment therefor shall be required to be made
in accordance with the provisions of [SECTION] 7.8;
(iv) An aggregate amount in excess of $500,000 at any one time in respect
of uninsured judgments or awards, with respect to which the applicable periods
for taking appeals have expired, or with respect to which final and unappealable
judgments have been rendered; and
(v) Other Liabilities (other than Indebtedness) of the Borrower or its
Subsidiaries which are not incurred in the ordinary course of business and which
exceed $5,000,000 in the aggregate, at any one time.
The terms and provisions of this [SECTION] 8.1 are in addition to, and
not in limitation of, the covenants set forth in [SECTION] 9 of this Agreement.
Notwithstanding anything contained herein to the contrary, the Borrower
will not, and will not permit any of its Subsidiaries to, incur any Indebtedness
which, together with other Indebtedness incurred by the Borrower and its
Subsidiaries since the date of the most recent compliance certificate delivered
to the Agent in accordance with this Agreement, exceeds $5,000,000 in the
aggregate unless the Borrower shall have delivered a Compliance Certificate to
the Agent evidencing covenant compliance at the time of delivery of the
certificate and, on a pro-forma basis after giving effect to such proposed
Indebtedness
[SECTION] 8.2. RESTRICTIONS ON LIENS, ETC. The Borrower will not, and
will not permit any of its Subsidiaries to, create or incur or agree not to
create or incur or suffer to be created or incurred or
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to exist any Lien upon any of its Real Estate Assets of any character whether
now owned or hereafter acquired, or upon the rents, income or profits therefrom;
PROVIDED that the Borrower may create or incur or suffer to be created or
incurred or to exist:
(i) Liens securing Consolidated Secured Indebtedness permitted pursuant to
[SECTION] 8.1 hereof;
(ii) Liens securing taxes, assessments, governmental charges, or levies
or claims for labor, materials and supplies which are permitted by [SECTION]
8.1 hereof;
(iii) deposits or pledges made in connection with, or to secure payment of,
workmen's compensation, unemployment insurance, old age pensions or other social
security obligations;
(iv) Liens in respect of judgments or awards, the Total Indebtedness with
respect to which is permitted by [SECTION] 8.1;
(v) encumbrances on properties consisting of easements, rights of way,
covenants, restrictions on the use of real property and defects and
irregularities in the title thereto; landlord's or lessor's Liens under Leases
to which the Borrower or any of its Subsidiaries is a party or bound; and other
minor Liens or encumbrances on properties none of which in the opinion of the
Borrower interferes materially and adversely with the use of the property
affected in the ordinary conduct of the business of the Borrower, and which
matters (x) do not individually or in the aggregate have a materially adverse
effect on the business of the Borrower or its Subsidiaries and (xx) do not make
title to such property unmarketable by the conveyancing standards in effect
where such property is located;
(vi) any Leases;
(vii) presently outstanding Liens and other encumbrances listed on SCHEDULE
8.2 hereto; and
(viii) other Liens in connection with any Indebtedness or Total
Indebtedness permitted under [SECTION] 8.1.
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[SECTION] 8.3. RESTRICTIONS ON INVESTMENTS AND ACQUISITIONS. The
Borrower will not, and will not permit any of its Subsidiaries to, make or
permit to exist or to remain outstanding any Investment or become or remain a
partner in any partnership or joint venture, or to acquire any Real Estate
Assets, except:
(a) Investments in marketable direct or guaranteed obligations of the
United States of America that mature within one (1) year from the date of
purchase by the Borrower;
(b) Investments in demand deposits, certificates of deposit, bankers
acceptances and time deposits of United States banks having total assets in
excess of $1,000,000,000;
(c) Investments in securities commonly known as "commercial paper" issued
by a corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated and
the ratings for which are not less than "P 1" if rated by Xxxxx'x and not less
than "A 1" if rated by S&P;
(d) Investments existing or contemplated on the date hereof and listed on
SCHEDULE 8.3(d) hereto;
(e) So long as no Event of Default has occurred and is continuing or would
occur after giving effect thereto, acquisitions of Real Estate of the type of
Real Estate Assets currently owned by the Borrower and the Capital Stock of
Persons whose primary operations consist of the ownership, development,
operation and management of properties of the type of Real Estate Assets owned
by the Borrower, in each case which are consistent with the Business Plan
Summary and in which the total consideration (both cash and non-cash) paid for
such acquisition does not exceed $100,000,000, it being agreed that the
acquisition of multiple assets in one transaction or a series of related
transactions shall constitute one acquisition for purposes of the $100,000,000
limitation; PROVIDED, HOWEVER that (i) the Borrower shall not, and shall not
permit any of its Subsidiaries to, acquire any Real Estate Asset without the
prior written consent of the Agent if the environmental investigation for such
Real Estate Asset determines that the potential environmental remediation costs
and other environmental liabilities associated with such Real Estate Asset
exceed $1,000,000; and (ii) the Borrower shall not permit any of its
Subsidiaries which is not a party to, or which does not become a party to, this
Agreement to acquire any Real Estate Asset;
(f) Investments in any other partnerships, joint ventures, corporations or
other entities (other than Subsidiaries) (including, without limitation, those
currently existing and those entered into subsequently) in an amount not to
exceed $25,000,000 in the aggregate (excluding for the purposes of the
$25,000,000 limitation, the Investment by the Borrower in the Xxxxxxxx Square
Partnership) including, without limitation, any Total Indebtedness incurred or
assumed thereby;
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(g) any other Investments made in the ordinary course of the Borrower's
business in a manner consistent with the Business Plan Summary of the Borrower;
and
(h) Investments in Subsidiaries.
[SECTION] 8.4. MERGER, CONSOLIDATION AND DISPOSITION OF PROPERTIES.
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(a) The Borrower will not, and will not permit any of its Subsidiaries
to, become a party to any merger, consolidation, reorganization or liquidation
or agree to transfer all or substantially all of its assets, in each case in
transactions in excess of $1,000,000, except (i) the merger or consolidation of
one or more Subsidiaries of the Borrower with or into the Borrower, or (ii) the
merger or consolidation of two or more Subsidiaries of the Borrower or as
otherwise approved in advance by the Banks.
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, become a party to or agree to or effect any disposition of any Unencumbered
Asset or Real Estate Asset unless at least five (5) Business Days prior to such
disposition the Borrower shall have provided a statement in the form of EXHIBIT
C hereto signed by the principal financial or accounting officer of the
Borrower and setting forth in reasonable detail computations evidencing
compliance with the covenants contained in [SECTION] 9.1 through 9.7 hereof
after giving effect to such proposed transfer and all liabilities, fixed or
contingent, pursuant thereto and certifying that no Default or Event of Default
has occurred and is continuing.
[SECTION] 8.5. SALE AND LEASEBACK. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any arrangement, directly or
indirectly, whereby the Borrower or any Subsidiary of the Borrower shall sell
or transfer any property owned by it in order then or thereafter to lease such
property.
[SECTION] 8.6. COMPLIANCE WITH ENVIRONMENTAL LAWS. The Borrower will
not, and will not permit any of its Subsidiaries to, do any of the following:
(a) use any of the Real Estate or any portion thereof as a facility for the
handling, processing, storage or disposal of Hazardous Materials in violation
of applicable Environmental Laws, (b) cause or permit to be located on any of
the Real Estate any underground tank or other underground storage receptacle
for Hazardous Materials except in material compliance with Environmental Laws,
(c) generate any Hazardous Materials on any of the Real Estate except in
material compliance with Environmental Laws, or (d) conduct any activity at any
Real Estate or use any Real Estate in any manner so as to cause a Release in
violation of applicable Environmental Laws; unless any such occurrence would
constitute a Non-Material Breach hereunder.
[SECTION] 8.7. DISTRIBUTIONS. So long as no Event of Default has
occurred and is continuing, the Borrower and its Subsidiaries shall be
permitted to make Distributions from time to time in amounts
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determined by Borrower, PROVIDED, HOWEVER, that in no event shall Borrower make
any Distribution if (a) such Distribution, together with other Distributions
made in such fiscal quarter, in the aggregate, would exceed 95% of Funds From
Operations for such fiscal quarter, or (b) such Distribution, together with
other Distributions made in such period of four (4) consecutive fiscal quarters,
in the aggregate, would exceed 90% of Funds From Operations for such period.
Notwithstanding the foregoing, the Borrower shall be permitted at any time to
make those Distributions which are necessary to maintain its tax status as a
real estate investment trust; PROVIDED, HOWEVER, that any such Distributions
permitted to be made during the continuance of an Event of Default shall in no
way constitute a waiver of or forbearance of such Event of Default by the Banks,
it being understood and agreed that the Banks shall continue to have all rights
and remedies with respect to such Event of Default as are provided in the
Agreement, the other Loan Documents and applicable law.
[SECTION] 9. FINANCIAL COVENANTS OF THE BORROWER. The Borrower
covenants and agrees that so long as any Loan, Letter of Credit or Note is
outstanding or the Banks have any obligation to make any Loans or the Agent or
any Fronting Bank has any obligations to issue, extend or renew any Letters of
Credit that:
[SECTION] 9.1. CONSOLIDATED OUTSTANDING INDEBTEDNESS. As at the
end of any fiscal quarter or any other date of measurement, the Borrower shall
not permit Consolidated Outstanding Indebtedness to exceed 50% of Consolidated
Market Value.
[SECTION] 9.2. CONSOLIDATED SECURED INDEBTEDNESS. As at the end
of any fiscal quarter or any other date of measurement, the Borrower shall not
permit Consolidated Secured Indebtedness to exceed 40% of Consolidated Market
Value.
[SECTION] 9.3. NET WORTH. The Borrower shall not at any time permit
Consolidated Net Worth to be less than the sum of (a) $200,000,000 PLUS (b) 50%
of the aggregate proceeds received by the Borrower (net of related fees and
expenses customarily incurred in transactions of such type) in connection with
any offering of stock in the Borrower after the Closing Date and on or prior to
the date such determination of Consolidated Net Worth is made.
[SECTION] 9.4. UNENCUMBERED ASSETS. As at the end of any fiscal quarter
or any other date of measurement, the Borrower shall not permit the Value of
Unencumbered Assets to be less than 1.75 times Consolidated Unsecured
Indebtedness.
[SECTION] 9.5. CASH FLOW. As at the end of any fiscal quarter or any
other date of measurement, the Borrower shall not permit the sum of (a)
Consolidated Cash Flow MINUS (b) Annual Capital Expenditure Reserve to be less
than 2 TIMES Consolidated Debt Service, based on the most recent two (2) fiscal
quarter results annualized.
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[SECTION] 9.6. UNENCUMBERED ASSET DEBT SERVICE COVERAGE. As at the end of
any fiscal quarter or any other date of measurement, the Borrower shall not
permit Consolidated Unencumbered Asset Cash Flow to be less than 1.50 TIMES
Consolidated Unsecured Debt Service Charges, based on the most recent two (2)
fiscal quarter results annualized, provided that as at the end of any fiscal
quarter or any other date of measurement after June 30, 1996, the Borrower shall
not permit Consolidated Unencumbered Asset Cash Flow to be less than 1.75 TIMES
Consolidated Unsecured Debt Service Charges, based on the most recent two (2)
fiscal quarter results annualized.
[SECTION] 9.7. ASSETS UNDER DEVELOPMENT. (a) The Borrower shall not
permit Assets Under Development to exceed 10% of Consolidated Capitalization
Value at any time.
(b) The Borrower shall not, and shall not permit any of its Subsidiaries
to, commence any construction of new Buildings or additions to existing
Buildings unless (i) such proposed project is at least 50% pre-leased by size
and at least 50% pre-leased by pro-forma and (ii) the Borrower and such
Subsidiary are, and during the course of construction, remain in compliance with
[SECTION] 7.20.
[SECTION] 10. CONDITIONS TO EFFECTIVENESS. This Agreement shall become
effective when each of the following conditions precedent have been satisfied:
[SECTION] 10.1. LOAN DOCUMENTS. Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto, shall be in full
force and effect and shall be in form and substance satisfactory to each of the
Banks. Each Bank shall have received a fully executed copy of each such
document prior to or on the Effective Date.
[SECTION] 10.2. CERTIFIED COPIES OF ORGANIZATION DOCUMENTS. Each of the
Banks shall have received from the Borrower and each Subsidiary of the Borrower
a copy, certified as of a recent date by a duly authorized officer of such
Person to be true and complete on the Closing Date, of its articles of
incorporation and by-laws any other charter and organization documents as in
effect on such date of certification, and a certificate of good standing from
the Borrower's jurisdiction of incorporation.
[SECTION] 10.3. RESOLUTIONS. All corporate action or other charter or
organizational acts on the part of the Borrower necessary for the valid
execution, delivery and performance by the Borrower of this Agreement and the
other Loan Documents to which it is or is to become a party shall have been duly
and effectively taken, and evidence thereof satisfactory to the Banks shall have
been provided to each of the Banks. Each Bank shall have received from the
Borrower true copies of the resolutions adopted by its Board of Directors or
other organizational vote authorizing the transactions described herein, each
certified by its secretary or equivalent organizational Person to be true and
complete and in effect on the Effective Date and evidence that the secretary or
equivalent organizational Person is authorized to so certify by the Borrower's
charter documents.
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[SECTION] 10.4. INCUMBENCY CERTIFICATE; AUTHORIZED SIGNERS. Each of the
Banks shall have received from the Borrower an incumbency certificate, dated as
of the Effective Date, signed by a duly authorized officer of the Borrower and
giving the name and bearing a specimen signature of each individual who shall be
authorized: (a) to sign, in the name and on behalf of the Borrower, each of the
Loan Documents to which the Borrower is or is to become a party; (b) to make
Loan Requests and Conversion Requests; and (c) to give notices and to take other
action on behalf of the Borrower under the Loan Documents.
[SECTION] 10.5. TAXES. The Bank shall have received evidence of payment of
real estate taxes and municipal charges on the Real Estate which were due and
payable on or before the Effective Date.
[SECTION] 10.6. CERTIFICATES OF INSURANCE. The Agent shall have received
(a) a certificate of insurance as to the insurance maintained by Borrower and
its Subsidiaries on the Real Estate (including flood insurance if necessary)
from the insurer or an independent insurance broker dated as of the Effective
Date, identifying insurers, types of insurance, insurance limits, and policy
terms; and (b) such further information and certificates from Borrower, its
insurers and insurance brokers as the Agent may reasonably request.
[SECTION] 10.7. OPINIONS OF COUNSEL CONCERNING ORGANIZATION AND LOAN
DOCUMENTS. Each of the Banks and the Agent shall have received favorable
opinions addressed to the Banks and the Agent and dated as of the Effective
Date (other than for [SECTION] 6.19 opinions), in form and substance
satisfactory to the Banks and the Agent from Xxxxxxx, Procter & Xxxx with
respect to Massachusetts and Maryland law.
[SECTION] 10.8 PAYMENT OF FEES. The Borrower shall have paid to the Agent
the fees referred to in ss.4.1 and shall have paid all other expenses as
provided in [SECTION] 15 hereof then outstanding.
[SECTION] 10.9 INTEREST RATE PROTECTION. The Agent shall have received
evidence satisfactory to the Agent that the Borrower has obtained and is
maintaining interest rate protection arrangements in accordance with the
requirements set forth in [SECTION] 7.15 hereof.
[SECTION] 10.10 FINANCIAL ANALYSES OF PROPERTIES. Each Bank shall have
completed to its satisfaction, a financial analysis of each Real Estate Asset,
which analyses shall include, without limitation, a review of the most recent
rent rolls, the historical operating statements, cash flow projections, capital
expenditure budgets, market data, leases and tenant financial statements. Each
such analysis shall be completed at each Bank's sole expense with materials
furnished by the Borrower at the Borrower's expense.
[SECTION] 10.11. INSPECTION OF PROPERTIES. The Agent shall have completed
to its satisfaction an inspection of a representative sample of the Borrower's
Real Estate Assets, including Unencumbered Assets, at Borrower's expense.
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[SECTION] 10.12. CAPITAL EXPENDITURE BUDGETS. The Agent shall have
received and approved capital expenditure budgets for each of the Real Estate
Assets, in form and substance satisfactory to the Agent.
[SECTION] 10.13. UCC LIEN SEARCHES. The Agent shall have received UCC lien
searches of the applicable public records disclosing no conditional sales
contracts, security agreements, chattel mortgages, leases of personalty,
financing statements or other encumbrances which affect any of the Real Estate
(other than UCC financing statements approved by the Agent and Permitted Liens).
[SECTION] 10.14. CERTIFICATE OF MERGER. The Agent shall have received
satisfactory evidence of the completion of the Borrower's acquisition of Xxxxxx
Properties Corporation, which evidence shall include, without limitation, the
filing of a Certificate of Merger with the Maryland Department of Taxes and
Assessment merging Xxxxxx Properties Corporation into the Borrower and copies
of all required consents and approvals.
[SECTION] 10.15. PARTNERSHIP AGREEMENTS. The Agent shall have received,
reviewed and approved all partnership and joint venture agreements to which the
Borrower is a party and which relate to any assets of the Borrower, including,
without limitation, those partnership agreements of Xxxxxxx Operating
Partnership, Xxxxxxx Financing Partnership and the Xxxxxxxx Square Partnership.
[SECTION] 10.16. EXISTING INDEBTEDNESS. The existing Indebtedness of the
Borrower (a) to the Banks under the Amended and Restated Revolving Credit
Agreement dated as of January 27, 1994, as amended, and (b) set forth on
SCHEDULE 10.16 (which Indebtedness shall not be Permitted Indebtedness) shall
have been satisfied in full.
10.17. RELEASE DOCUMENTS. The Agent shall have delivered to the Borrower
appropriate release documentation necessary to release all security interests
granted by the Borrower in the properties and assets of the Borrower, including,
without limitation, appropriate releases of mortgages and deeds of trust and UCC
termination statements.
[SECTION] 11. CONDITIONS TO ALL BORROWINGS. The obligations of the Banks
to make any Loan, and of the Agent to issue, extend or renew any Letter of
Credit, in each case whether on or after the Effective Date, shall also be
subject to the satisfaction of the following conditions precedent:
[SECTION] 11.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT; COMPLIANCE
CERTIFICATE. Each of the representations and warranties of the Borrower
contained in this Agreement, the other Loan Documents or in any document or
instrument delivered pursuant to or in connection with this Agreement shall be
true as of the date as of which they were made and shall also be true at and as
of the time of the making of such Loan or the issuance, extension or renewal of
such Letter of Credit, with the same effect as if made at and as of that time
(except (i) to the extent of changes resulting
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from transactions contemplated or permitted by this Agreement and the other Loan
Documents and changes occurring in the ordinary course of business that singly
or in the aggregate are not materially adverse, (ii) to the extent that such
representations and warranties relate expressly to an earlier date and (iii) for
Non-Material Breaches); the Borrower shall have performed and complied with all
terms and conditions herein required to be performed by it or prior to the
Drawdown Date of such Loan; and no Default or Event of Default shall have
occurred and be continuing on the date of any Loan Request or on the Drawdown
Date of such Loan. Each of the Banks shall have received a Compliance
Certificate evidencing covenant compliance after giving effect to such requested
Loan.
[SECTION] 12. EVENTS OF DEFAULT; ACCELERATION; ETC.
-------------------------------------
[SECTION] 12.1 EVENTS OF DEFAULT AND ACCELERATION. If any of the following
events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans when the same
shall become due and payable;
(b) the Borrower shall fail to pay any interest on the Loans or any other
sums due hereunder or under any of the other Loan Documents when the same shall
become due and payable, and such failure continues for three (3) days;
(c) the borrower shall fail to comply with any of its covenants contained
in [SECTION] 7.5, [SECTION] 7.6, [SECTION] 7.7, [SECTION] 8 or [SECTION] 9
hereof and such failure continues for thirty (30) days (subject to the
Non-Material Breach standard for [SECTION] 8.6 if the breach thereof is a
Non-Material Breach);
(d) the Borrower or any of its Subsidiaries shall fail to perform any other
term, covenant or agreement contained herein or in any of the other Loan
Documents (other than those specified elsewhere in this [SECTION] 12) for
thirty (30) days after written notice of such failure from Agent to the
Borrower PROVIDED that if Borrower is diligently and in good faith prosecuting
a cure of such breach, an Event of Default shall not be deemed to have occurred
until ninety (90) days after such written notice;
(e) any representation or warranty of the Borrower or relating to any of
its Subsidiaries in this Agreement or any of the other Loan Documents shall
prove to have been false in any material respect upon the date when made or
deemed to have been made or repeated, and the same does not constitute a
Non-Material Breach under this Agreement, PROVIDED, HOWEVER, that if the
condition or event making the representation and warranty false is capable of
being cured by the Borrower or such Subsidiary, the Borrower shall have a period
of thirty (30) days in the case of a breach specifically with respect to an
Unencumbered Asset, and sixty (60) days in the case of any other breach, after
the date that the Borrower first obtained knowledge of such condition or event
during which the Borrower may cure such condition or event (or, if such
condition or event is not
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reasonably capable of being cured within the initial cure period, such
additional period of time as may be reasonably required in order to cure such
condition or event but in any event such period shall not exceed six (6) months
from the date that the Borrower first obtained knowledge of such condition or
event), and no Event of Default shall exist hereunder during such initial cure
period or additional period so long as the Borrower continuously and diligently
pursues the cure of such condition or event and the other conditions to such
cure period have not changed;
(f) the Borrower or any of its Subsidiaries shall fail to pay at maturity,
or within any applicable period of grace, any Indebtedness or obligation in
respect of any Capitalized Leases in an aggregate amount in excess of
$10,000,000 or fail to observe or perform any material term, covenant or
agreement contained in any agreement by which it is bound, evidencing or
securing Indebtedness or obligation in respect of any Capitalized Leases in an
aggregate amount in excess of $10,000,000 for such period of time as would
permit (assuming the giving of appropriate notice if required) the holder or
holders thereof or of any obligations issued thereunder to accelerate the
maturity thereof; and in any event, such failure shall continue for sixty (60)
days, unless the amount, applicability or validity thereof is being contested by
the Borrower or such Subsidiary in good faith by appropriate legal proceedings
and the Borrower or such Subsidiary has reserves adequate to pay any such
disputed amounts;
(g) the Borrower or any of its Subsidiaries shall make an assignment for
the benefit of creditors, or admit in writing its inability to pay or generally
fail to pay its debts as they mature or become due, or shall petition or apply
for the appointment of a trustee or other custodian, liquidator or receiver of
the Borrower or any of its Subsidiaries or of any substantial part of the
properties of the Borrower or any of its Subsidiaries or shall commence any case
or other proceeding relating to the Borrower or any of its Subsidiaries under
any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or hereafter
in effect, or shall take any action to authorize or in furtherance of any of the
foregoing, or if any such petition or application shall be filed or any such
case or other proceeding shall be commenced against the Borrower or any of its
Subsidiaries and the Borrower or any of its Subsidiaries shall indicate its
approval thereof, consent thereto or acquiescence therein or such petition or
application shall not have been dismissed within sixty (60) days following the
filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian,
liquidator or receiver or adjudicating the Borrower or any of its Subsidiaries
bankrupt or insolvent, or approving a petition in any such case or other
proceeding, or a decree or order for relief is entered in respect of the
Borrower or any Subsidiary of the Borrower in an involuntary case under federal
bankruptcy laws as now or hereafter constituted, and such petition, decree or
order shall not have been dismissed within sixty (60) days following the entry
thereof;
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(i) there shall remain in force, undischarged, unsatisfied and unstayed,
for more than sixty days, whether or not consecutive, any uninsured final
judgment against the Borrower or any of its Subsidiaries that, with other
outstanding uninsured final judgments, undischarged, against the Borrower or any
of its Subsidiaries exceeds in the aggregate at any one time $500,000;
(j) if any of the Loan Documents or any material provision of any Loan
Documents shall be unenforceable, cancelled, terminated, revoked or rescinded
otherwise than in accordance with the terms thereof or with the express prior
written agreement, consent or approval of the Agent, or any action at law, suit
or in equity or other legal proceeding to make unenforceable, cancel, revoke or
rescind any of the Loan Documents shall be commenced by or on behalf of the
Borrower or any of its Subsidiaries, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the effect
that, any one or more of the Loan Documents is illegal, invalid or unenforceable
in accordance with the terms thereof;
(k) the Borrower or any of its Subsidiaries shall be indicted for a federal
crime, a punishment for which could include the forfeiture of any material
assets of the Borrower or any of its Subsidiaries;
(l) any "Event of Default", as defined in any of the other Loan Documents,
shall occur and be continuing;
(m) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event
shall have occurred and the Majority Banks shall have determined in their
reasonable discretion that such event reasonably could be expected to result in
liability of the Borrower or any of its Subsidiaries to the PBGC or such
Guaranteed Pension Plan in an aggregate amount exceeding $500,000 and such event
in the circumstances occurring reasonably could constitute grounds for the
termination of such Guaranteed Pension Plan by the PBGC or for the appointment
by the appropriate United States District Court of a trustee to administer such
Guaranteed Pension Plan; or a trustee shall have been appointed by the United
States District Court to administer such Guaranteed Pension Plan; or the PBGC
shall have instituted proceedings to terminate such Guaranteed Pension Plan;
then, and in any such event, so long as the same may be continuing, the Agent
may (unless instructed to the contrary by the Majority Banks), and upon the
request of the Majority Banks shall, by notice in writing to the Borrower
declare all amounts owing with respect to this Agreement, the Notes and the
other Loan Documents to be, and they shall thereupon forthwith become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the Borrower; PROVIDED
that in the event of any Event of Default specified in [SECTION] 12.1(g) or
12.1(h), all such amounts shall become immediately due and payable
automatically and without any requirement of notice from the Agent or action by
the Majority Banks.
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[SECTION] 12.2 TERMINATION OF COMMITMENTS. If any one or more Events of
Default specified in [SECTION] 12.1(g) or [SECTION] 12.1(h) shall occur, any
unused portion of the Commitments hereunder shall forthwith terminate and the
Banks shall be relieved of all obligations to make Loans to the Borrower and
the Agent and any Fronting Bank shall be relieved of all further obligations to
issue, extend or renew Letters of Credit. If any other Event of Default shall
have occurred and be continuing, any Bank may by notice to the Borrower
terminate the unused portion of its Commitment hereunder, and upon such notice
being given such unused portion of its Commitment hereunder shall terminate
immediately and such Bank shall be relieved of all further obligations to make
Loans and the Agent and any Fronting Bank shall be relieved of all further
obligations to issue, extend or renew Letters of Credit. No termination of such
Bank's Commitment hereunder shall relieve the Borrower of any of the
Obligations or any of its existing obligations to such Bank arising under other
agreements or instruments.
[SECTION] 12.3 REMEDIES. In case any one or more of the Events of Default
shall have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Loans pursuant to [SECTION] 12.1, each Bank, if
owed any amount with respect to the Loans may, with the consent of the Majority
Banks, direct the Agent to proceed to protect and enforce the rights and
remedies of the Agent and the Banks under this Agreement, the Notes or any of
the other Loan Documents by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Agreement and the other Loan Documents or any instrument
pursuant to which the Obligations are evidenced, including to the full extent
permitted by applicable law the obtaining of the EX PARTE appointment of a
receiver, and, if any amount shall have become due, by declaration or otherwise,
to proceed to enforce the payment thereof or any other legal or equitable right
of such Bank. No remedy herein conferred upon any Bank or the Agent or the
holder of any Note or purchaser of any Letter of Credit Participation is
intended to be exclusive of any other remedy and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or any other provision
of law.
[SECTION] 13. SETOFF. During the continuance of any Event of Default, any
deposits (general or specific, time or demand, provisional or final, regardless
of currency, maturity, or the branch of where such deposits are held) or other
sums credited by or due from any of the Banks to the Borrower or any of its
Subsidiaries and any securities or other property of the Borrower or any of its
Subsidiaries in the possession of such Bank may be applied to or set off against
the payment of Obligations and any and all other liabilities, direct, or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of the Borrower to such Bank. Each of the Banks agrees with
each other Bank that (a) if an amount to be set off is to be applied to
Indebtedness of the Borrower to such Bank, other than Indebtedness evidenced by
the Notes held by such Bank, such amount shall be applied ratably to such other
Indebtedness and to the Indebtedness evidenced by all such Notes held by such
Bank, and (b) if such Bank shall receive from the Borrower, whether by voluntary
payment, exercise of the right of setoff, counterclaim, cross action,
enforcement of the
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claim evidenced by the Notes held by such Bank by proceedings against the
Borrower at law or in equity or by proof thereof in bankruptcy, reorganization,
liquidation, receivership or similar proceedings, or otherwise, and shall retain
and apply to the payment of the Note or Notes held by such Bank any amount in
excess of its ratable portion of the payments received by all of the Banks with
respect to the Notes held by all of the Banks, such Bank will make such
disposition and arrangements with the other Banks with respect to such excess,
either by way of distribution, PRO TANTO assignment of claims, subrogation or
otherwise as shall result in each Bank receiving in respect of the Notes held by
it, its proportionate payment as contemplated by this Agreement; PROVIDED that
if all or any part of such excess payment is thereafter recovered from such
Bank, such disposition and arrangements shall be rescinded and the amount
restored to the extent of such recovery, but without interest. Notwithstanding
the foregoing, no Bank shall exercise a right of setoff if such exercise would
limit or prevent the exercise of any other remedy or other recourse against the
Borrower.
[SECTION] 14. THE AGENT.
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[SECTION] 14.1. AUTHORIZATION. The Agent is authorized to take such action
on behalf of each of the Banks and to exercise all such powers as are hereunder
and under any of the other Loan Documents and any related documents delegated
to the Agent, together with such powers as are reasonably incident thereto,
PROVIDED that no duties or responsibilities not expressly assumed herein or
therein shall be implied to have been assumed by the Agent. The relationship
between the Agent and the Banks is and shall be that of agent and principal
only, and nothing contained in this Agreement or any of the other Loan
Documents shall be construed to constitute the Agent as a trustee for any Bank.
[SECTION] 14.2. EMPLOYEES AND AGENTS. The Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to its
rights and duties under this Agreement and the other Loan Documents. The Agent
may utilize the services of such Persons as the Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses of any such Persons
shall be paid by the Borrower.
[SECTION] 14.3. NO LIABILITY. Neither the Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable for any
waiver, consent or approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder or under any of the other Loan Documents,
or in connection herewith or therewith, or be responsible for the consequences
of any oversight or error of judgment whatsoever, except that the Agent or such
other Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
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[SECTION] 14.4. NO REPRESENTATIONS. The Agent shall not be responsible for
the execution or validity or enforceability of this Agreement, the Notes, any
of the other Loan Documents or for the validity, enforceability or
collectability of any such amounts owing with respect to the Notes, or for any
recitals or statements, warranties or representations made herein or in any of
the other Loan Documents or in any certificate or instrument hereafter
furnished to it by or on behalf of the Borrower, or be bound to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
covenants or agreements herein. The Agent shall not be bound to ascertain
whether any notice, consent, waiver or request delivered to it by the Borrower
or any holder of any of the Notes shall have been duly authorized or is true,
accurate and complete. The Agent has not made nor does it now make any
representations or warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the credit worthiness or financial
condition of the Borrower. Each Bank acknowledges that it has, independently
and without reliance upon the Agent or any other Bank, and based upon such
information and documents as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Agent's Special Counsel has
only represented Agent and FNBB in connection with the Loan Documents and the
only attorney-client relationship or duty of care is between Agent's Special
Counsel and Agent. Each Bank, at such Bank's sole cost and expense (except as
otherwise provided in [SECTION] 15 hereof), has been independently represented
by separate counsel on all matters regarding the Loan Documents.
[SECTION] 14.5. PAYMENTS.
(a) A payment by the Borrower to the Agent hereunder or any of the other
Loan Documents for the account of any Bank shall constitute a payment to such
Bank subject to the PRO RATA rights to repayment based upon the Commitment
Percentage of each Bank. The Agent agrees promptly to distribute to each Bank
such Bank's pro rata share of payments received by the Agent for the account of
the Banks except as otherwise expressly provided herein or in any of the other
Loan Documents.
(b) If in the opinion of the Agent the distribution of any amount received
by it in such capacity hereunder, under the Notes or under any of the other Loan
Documents might involve it in liability, it may refrain from making distribution
until its right to make distribution shall have been adjudicated by a court of
competent jurisdiction. If a court of competent jurisdiction shall adjudge that
any amount received and distributed by the Agent is to be repaid, each Person to
whom any such distribution shall have been made shall either repay to the Agent
its proportionate share of the amount so adjudged to be repaid or shall pay over
the same in such manner and to such Persons as shall be determined by such
court; PROVIDED that if such court specifies that such amount shall be repaid
due entirely to the action or inaction of a Bank or Banks, only such Bank or
Banks shall be required to repay to the Agent their share of the amount so
adjudged to be repaid attributable to such Bank or Banks.
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(c) Notwithstanding anything to the contrary contained in this Agreement or
any of the other Loan Documents, any Bank that fails (i) to make available to
the Agent its PRO RATA share of any Loan or to purchase any Letter of Credit
Participation, or (ii) to comply with the provisions of [SECTION] 12 or
[SECTION] 13 with respect to making dispositions and arrangements with the
other Banks, where such Bank's share of any payment received, whether by setoff
or otherwise, is in excess of its PRO RATA share of such payments due and
payable to all of the Banks, in each case as, when and to the full extent
required by the provisions of this Agreement, or to adjust promptly such Bank's
outstanding principal and its pro rata Commitment Percentage as provided in
[SECTION] 2.1 hereof, shall be deemed delinquent (a "Delinquent Bank") and
shall be deemed a Delinquent Bank until such time as such delinquency is
satisfied. A Delinquent Bank shall be deemed to have assigned any and all
payments due to it from the Borrower, whether on account of outstanding Loans,
interest, fees or otherwise, to the remaining nondelinquent Banks for
application to, and reduction of, their respective PRO RATA shares of all
outstanding Loans. The Delinquent Bank hereby authorizes the Agent to
distribute such payments to the nondelinquent Banks in proportion to their
respective PRO RATA shares of all outstanding Loans. A Delinquent Bank shall be
deemed to have satisfied in full a delinquency when and if, as a result of
application of the assigned payments to all outstanding Loans of the
nondelinquent Banks, the Banks' respective PRO RATA shares of all outstanding
Loans have returned to those in effect immediately prior to such delinquency and
without giving effect to the nonpayment causing such delinquency.
[SECTION] 14.6. HOLDERS OF NOTES. The Agent may deem and treat the payee
of any Note or the purchaser of any Letter of Credit Participation as the
absolute owner or purchaser thereof for all purposes hereof until it shall have
been furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
[SECTION] 14.7. INDEMNITY. The Banks ratably agree hereby to indemnify and
hold harmless the Agent from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs, expenses (including
any expenses for which the Agent has not been reimbursed by the Borrower as
required by [SECTION] 15), and liabilities of every nature and character
arising out of or related to this Agreement, the Notes, or any of the other
Loan Documents or the transactions contemplated or evidenced hereby or thereby,
or the Agent's actions taken hereunder or thereunder, except to the extent that
any of the same shall be directly caused by the Agent's willful misconduct or
gross negligence.
[SECTION] 14.8. AGENT AS BANK. In its individual capacity, FNBB shall have
the same obligations and the same rights, powers and privileges in respect to
its Commitment and the Loans made by it, and as the holder of any of the Notes
and as the purchaser of any Letter of Credit Participations, as it would have
were it not also the Agent.
[SECTION] 14.9. RESIGNATION. The Agent may resign at any time by giving
sixty (60) days' prior written notice thereof to the Banks and the Borrower.
Upon any such resignation, the Majority Banks shall
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have the right to appoint a successor Agent. Unless a Default or Event of
Default shall have occurred and be continuing, appointment of such successor
Agent shall be subject to the reasonable approval of the Borrower. If no
successor Agent shall have been so appointed by the Majority Banks and shall
have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation or the Borrower has disapproved or
failed to approve a successor agent within such period, then the retiring Agent
may, on behalf of the Banks, appoint a successor Agent, which shall be a
financial institution which is a Bank hereunder, meets the requirements of an
Eligible Assignee and has a rating of not less than A2/P2 or its equivalent by
S&P and is otherwise subject to the reasonable approval of the Borrower to be
given or denied within five (5) days of written notice to the Borrower from
Agent of such appointment. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation, the provisions of
this Agreement and the other Loan Documents shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
[SECTION] 14.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Bank
hereby agrees that, upon learning of the existence of a Default or an Event of
Default, it shall promptly notify the Agent thereof. The Agent hereby agrees
that upon receipt of any notice under this [SECTION] 14.10 it shall promptly
notify the other Banks of the existence of such Default or Event of Default.
[SECTION] 15. EXPENSES. Subject to any specific limitations set forth in
this Agreement, the Borrower agrees to pay (a) the reasonable costs of
producing and reproducing this Agreement, the other Loan Documents and the
other agreements and instruments mentioned herein, (b) any taxes (including any
interest and penalties in respect thereto) payable by the Agent or any of the
Banks (other than taxes based upon the Agent's or any Bank's net income), or
other taxes payable on or with respect to the transactions contemplated by this
Agreement, including any taxes payable by the Agent or any of the Banks after
the Effective Date (the Borrower hereby agreeing to indemnify the Banks with
respect thereto), (c) all reasonable fees, expenses and disbursements of the
Agent's Special Counsel or any local counsel to the Agent incurred in
connection with the preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein, each closing hereunder, and
amendments, modifications, approvals, consents or waivers hereto or hereunder,
(d) the fees, costs, expenses and disbursements of the Agent incurred in
connection with the preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein including without limitation,
the Approval Fee and the costs incurred by the Agent in connection with its
inspection of the Real Estate, and the fees and disbursements of the Agent's
Special Counsel and the Borrower's legal counsel in preparing documentation,
(e) the fees, costs, expenses and disbursements of the Agent incurred in
connection with the syndication and/or participation of the Loans, including,
without limitation, travel costs, costs of preparing syndication materials and
photocopying costs (f) all reasonable out-of-pocket expenses (including
reasonable
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attorneys' fees and costs, which attorneys may be employees of any Bank or the
Agent and the fees and costs of appraisers, engineers, investment bankers,
surveyors or other experts retained by the Agent or any Bank in connection with
any such enforcement proceedings) incurred by any Bank or the Agent in
connection with (i) the enforcement of or preservation of rights under any of
the Loan Documents against the Borrower or the administration thereof after the
occurrence and during the continuance of a Default or Event of Default
(including, without limitation, expenses incurred in any restructuring and/or
"workout" of the Loans), and (ii) any litigation, proceeding or dispute whether
arising hereunder or otherwise, in any way related to the Agent's or the Bank's
relationship with the Borrower or any of its Subsidiaries, (g) all reasonable
fees, expenses and disbursements of the Agent incurred in connection with UCC
searches, (h) all costs incurred by the Agent in the future in connection with
its inspection of the Real Estate. The covenants of this [SECTION] 15 shall
survive payment or satisfaction of payment of amounts owing with respect to the
Notes.
[SECTION] 16. INDEMNIFICATION. The Borrower agrees to indemnify and hold
harmless the Agent and the Banks and the shareholders, directors, agents,
officers, subsidiaries, and affiliates of the Agent and the Banks from and
against any and all claims, actions or causes of action and suits whether
groundless or otherwise, and from and against any and all liabilities, losses,
settlement payments, obligations, damages and expenses of every nature and
character arising out of this Agreement or any of the other Loan Documents or
the transactions contemplated hereby or which otherwise arise in connection
with the financing including, without limitation unless directly caused by the
gross negligence or willful misconduct of a Bank or the Agent (but such
limitation on indemnification shall only apply to the Agent or Bank being
grossly negligent or committing willful misconduct), (a) any actual or proposed
use by the Borrower of the proceeds of any of the Loans, (b) any actual or
alleged infringement of any patent, copyright, trademark, service xxxx or
similar right of the Borrower, (c) the Borrower entering into or performing
this Agreement or any of the other Loan Documents or (d) with respect to the
Borrower and its respective properties, the violation of any Environmental Law,
the Release or threatened Release of any Hazardous Substances or any action,
suit, proceeding or investigation brought or threatened with respect to any
Hazardous Substances (including, but not limited to claims with respect to
wrongful death, personal injury or damage to property), (e) any cost, claim
liability, damage or expense in connection with any harm the Borrower may be
found to have caused in the role of a broker, in each case including, without
limitation, the reasonable fees and disbursements of counsel and allocated
costs of internal counsel incurred in connection with any such investigation,
litigation or other proceeding. In litigation, or the preparation therefor, the
Banks and the Agent shall each be entitled to select their own separate counsel
and, in addition to the foregoing indemnity, the Borrower agrees to pay
promptly the reasonable fees and expenses of such counsel. If, and to the
extent that the obligations of the Borrower under this [SECTION] 16 are
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment in satisfaction of such obligations which is
permissible under applicable law. The provisions of this [SECTION] 16 shall
survive the repayment of the Loans and the termination of the obligations of the
Banks hereunder and shall continue in full force and effect as to the Banks so
long as the possibility of any such claim, action, cause of action or suit
exists.
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[SECTION] 17. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
representations and warranties made herein, in the Notes, in any of the other
Loan Documents or in any documents or other papers delivered by or on behalf of
the Borrower pursuant hereto shall be deemed to have been relied upon by the
Banks and the Agent, notwithstanding any investigation heretofore or hereafter
made by it, and shall survive the making by the Banks of the Loans and the
issuance, extension or renewal of any Letters of Credit, as herein contemplated,
and shall continue in full force and effect so long as any Letter of Credit or
any amount due under this Agreement or the Notes or any of the other Loan
Documents remains outstanding or the Banks have any obligation to make any Loans
or the Agent has any obligation to issue, extend or renew any Letter of Credit.
The indemnification obligations of the Borrower provided herein and the other
Loan Documents shall survive the full repayment of amounts due and the
termination of the obligations of the Banks hereunder and thereunder to the
extent provided herein and therein. All statements contained in any certificate
or other paper delivered to the Agent or any Bank at any time by or on behalf of
the Borrower pursuant hereto or in connection with the transactions contemplated
hereby shall constitute representations and warranties by the Borrower
hereunder.
[SECTION] 18. ASSIGNMENT; PARTICIPATIONS; ETC.
--------------------------------
[SECTION] 18.1. CONDITIONS TO ASSIGNMENT BY BANKS. Except as provided
herein, each Bank may assign to one or more Eligible Assignees all or a portion
of its interests, rights and obligations under this Agreement (including all or
a portion of its Commitment Percentage and Commitment and the same portion of
the Loans at the time owing to it, and the Notes held by it and its
participating interest in the risk relating to any Letters of Credit, PROVIDED
that (a) the Agent and the Borrower each shall have the right to approve any
Eligible Assignee, which approval shall not be unreasonably withheld, it being
agreed that the Agent and the Borrower must approve or reject a proposed
Eligible Assignee within seven (7) days of receiving a written request from any
Bank for such approval, and if the Agent or the Borrower fails to respond
within such seven (7) day period, such request for approval shall be deemed
approved by the Agent or the Borrower, or both, as the case may be, (b) each
such assignment shall be of a constant, and not a varying, percentage of all
the assigning Bank's rights and obligations under this Agreement, (c) each
assignment shall be in an amount that is a whole multiple of $1,000,000, (d)
each Bank which is a Bank on the date hereof shall retain, free of any such
assignment, an amount of its Commitment of not less than $10,000,000 and (e)
the parties to such assignment shall execute and deliver to the Agent, for
recording in the Register (as hereinafter defined), an Assignment and
Acceptance, substantially in the form of EXHIBIT F hereto (an "Assignment and
Acceptance"), together with any Notes subject to such assignment. Upon such
execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, which effective date shall be
at least five (5) Business Days after the execution thereof, (i) the assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Bank hereunder,
and (ii) the assigning Bank shall, to the extent provided in such assignment
and upon payment to the Agent of the registration fee referred to in [SECTION]
18.3, be released from its obligations under this Agreement.
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[SECTION] 18.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS;
COVENANTS. By executing and delivering an Assignment and Acceptance, the
parties to the assignment thereunder confirm to and agree with each other and
the other parties hereto as follows: (a) other than the representation and
warranty that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim, the assigning Bank makes
no 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,
sufficiency or value of this Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto; (b) the assigning Bank makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the performance or
observance by the Borrower or any other Person primarily or secondarily liable
in respect of any of the Obligations of any of their obligations under this
Agreement or any of the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (c) such assignee confirms that
it has received a copy of this Agreement, together with copies of the most
recent financial statements referred to in [SECTION] 6.4 and [SECTION] 7.4 and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance upon the assigning
Bank, the Agent or any other Bank and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (e) such
assignee represents and warrants that it is an Eligible Assignee; (f) such
assignee appoints and authorizes the Agent to take such action as "Agent" on
its behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto; (g) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Bank; (h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; and (i) such assignee
acknowledges that it has made arrangements with the assigning Bank satisfactory
to such assignee with respect to its pro rata share of Letter of Credit fees in
respect to outstanding Letters of Credit.
[SECTION] 18.3. REGISTER. The Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register or similar list (the
"Register") for the recordation of the names and addresses of the Banks and the
Commitment Percentages of, and principal amount of the Loans owing to the Banks
from time to time. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Agent and the Banks may treat
each Person whose name is recorded in the Register as a Bank hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower and the Banks at any reasonable time and from time to time upon
reasonable prior notice. Upon each such recordation, the assigning Bank agrees
to pay to the Agent a registration fee in the sum of $2,500.00.
[SECTION] 18.4. NEW NOTES. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note subject to
such assignment, the Agent shall (a) record the information
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contained therein in the Register, and (b) give prompt notice thereof to the
Borrower and the Banks (other than the assigning Bank). Within five (5)
Business Days after receipt of such notice, the Borrower, at its own expense,
shall execute and deliver to the Agent, in exchange for each surrendered Note,
a new Note to the order of such Eligible Assignee in an amount equal to the
amount assumed by such Eligible Assignee pursuant to such Assignment and
Acceptance and, if the assigning Bank has retained some portion of its Loans
hereunder, a new Note to the order of the assigning Bank in an amount equal to
the amount retained by it hereunder. Such new Notes shall provide that they are
replacements for the surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of the assigned Notes. Within five (5)
days of issuance of any new Notes pursuant to this [SECTION] 18.4, the Borrower
shall deliver an opinion of counsel, addressed to the Banks and the Agent,
relating to the due authorization, execution and delivery of such new Notes and
the legality, validity and binding non-preferential effect thereof, in form and
substance satisfactory to the Banks. The surrendered Notes shall be cancelled
and returned to the Borrower.
[SECTION] 18.5. PARTICIPATIONS. Each Bank may sell participations to
one or more banks or other entities in a portion of such Bank's rights and
obligations under this Agreement and the other Loan Documents not to exceed
forty-nine percent (49%) of its Commitment Percentage; PROVIDED that (a) the
Agent shall have given its prior written consent to such participation, (b)
each such participation shall be in an amount of not less than $1,000,000, (c)
any such sale or participation shall not affect the rights and duties of the
selling Bank hereunder to the Borrower and the Bank shall continue to exercise
all approvals, disapprovals and other functions of a Bank, (d) the only rights
granted to the participant pursuant to such participation arrangements with
respect to waivers, amendments or modifications of the Loan Documents shall be
the rights to approve the vote of the Bank as to waivers, amendments or
modifications that would reduce the principal of or the interest rate on any
Loans, extend the term or increase the amount of the Commitment of such Bank as
it relates to such participant, reduce the amount of any fees to which such
participant is entitled or extend any regularly scheduled payment date for
principal or interest, PROVIDED that all approvals affecting a Loan or this
Agreement under this clause (d) shall be by a fifty-one percent (51%) vote of
such Bank's Commitment Percentage, and (e) no participant shall have the right
to grant further participations or assign its rights, obligations or interests
under such participation to other Persons without the prior written consent of
the Agent. The Agent shall promptly advise the Borrower in writing of any such
sale or participation.
[SECTION] 18.6. PLEDGE BY LENDER. Any Bank may at any time pledge all
or any portion of its interest and rights under this Agreement (including all
or any portion of its Note) to any of the twelve Federal Reserve Banks
organized under [SECTION] 4 of the Federal Reserve Act, 12 U.S.C. [SECTION]
341. No such pledge or the enforcement thereof shall release the pledgor Bank
from its obligations hereunder or under any of the other Loan Documents.
[SECTION] 18.7. NO ASSIGNMENT BY BORROWER. The Borrower shall not assign or
transfer any of its rights or obligations under any of the Loan Documents
without the prior written consent of each of the Banks.
[SECTION] 18.8. DISCLOSURE. The Borrower agrees that in addition to
disclosures made in accordance with standard banking practices any Bank may
disclose information obtained by such Bank pursuant to this Agreement to
assignees or participants and potential assignees or participants hereunder.
[SECTION] 19. NOTICES, ETC. Except as otherwise expressly provided in this
Agreement, all notices and other communications made or required to be given
pursuant to this Agreement or the Notes or any Letter of Credit
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Applications shall be in writing and shall be delivered in hand, mailed by
United States registered or certified first class mail, postage prepaid, sent by
overnight courier, or sent by telegraph, telecopy, telefax or telex and
confirmed by delivery via courier or postal service, addressed as follows:
(a) if to the Borrower, at Xxxxxxx Real Estate, Inc., 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxx X. D'Arcy and Xxxxxx X. Xxxxx,
Xx., with a copy to Xxxx X. Xxxxxxx, Esq., Xxxxxxx Procter & Xxxx, Exchange
Place, Boston, Massachusetts 02109 or at such other address for notice as the
Borrower shall last have furnished in writing to the Agent; and
(b) if to the Agent, at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Xx. Xxxxxx Xxxxxxxxx, or such other address for notice as the Agent
shall last have furnished in writing to the Borrower, with a copy to Xxxx X.
Xxxxxx, Esq., Xxxxxxx, Xxxx & Xxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000.
(c) if to any Bank, at such Bank's address set forth on SCHEDULE 1 hereto,
or such other address for notice as such Bank shall have last furnished in
writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
[SECTION] 20. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE. THIS
AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SUCH COMMONWEALTH (EXCLUDING THE LAWS APPLICABLE TO
CONFLICTS OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT BY IT FOR THE
ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT
ONLY IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT
SITTING THEREIN AND BORROWER CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH
COURT FOR ANY SUIT BY AGENT OR ANY BANK AND THE SERVICE OF PROCESS IN ANY SUCH
SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN [SECTION]
19. THE BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN
AN INCONVENIENT COURT. IN ADDITION TO THE COURTS OF THE COMMONWEALTH OR ANY
FEDERAL COURT SITTING THEREIN, THE AGENT OR ANY BANK MAY BRING ACTION(S) FOR
ENFORCEMENT ON A NONEXCLUSIVE BASIS WHERE ANY COLLATERAL EXISTS AND THE
BORROWER CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE
ADDRESS SPECIFIED IN [SECTION] 19.
[SECTION] 21. HEADINGS. The captions in this Agreement are for
convenience of reference only and shall not define or limit the provisions
hereof.
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[SECTION] 22. COUNTERPARTS. This Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, and all of
which together shall constitute one instrument. In proving this Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
[SECTION] 23. ENTIRE AGREEMENT, ETC. The Loan Documents and any other
documents executed in connection herewith or therewith express the entire
understanding of the parties with respect to the transactions contemplated
hereby. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except as provided in [SECTION] 25.
[SECTION] 24. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS. THE
BORROWER HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE NOTES
OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT TO THE
EXTENT EXPRESSLY PROHIBITED BY LAW, THE BORROWER HEREBY WAIVES ANY RIGHT IT MAY
HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING
SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES, INCLUDING ANY DAMAGES
PURSUANT TO M.G.L. C.93A ET SEQ. THE BORROWER (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF THE AGENT OR ANY BANK HAD REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE AGENT OR SUCH BANK WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT THE
AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE
WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
[SECTION] 25. CONSENTS, AMENDMENTS, WAIVERS, ETC. Any consent or
approval required or permitted by this Agreement may be given, and any term of
this Agreement or of any other instrument related hereto or mentioned herein
may be amended, and the performance or observance by the Borrower of any terms
of this Agreement or such other instrument or the continuance of any Default or
Event of Default may be waived (either generally or in a particular instance
and either retroactively or prospectively) with, but only with, the written
consent of the Majority Banks, and, in the case of amendments, with the written
consent of the Borrower other than amendments to schedules made in the ordinary
course as contemplated by this Agreement. Notwithstanding the foregoing, (i)
the rate of interest on and the term or amount of the Notes, (ii) the amount of
the Commitments of the Banks, (iii) the amount of any fee payable to a Bank
hereunder, (iv) any provision herein or in any of the Loan Documents which
expressly requires consent of all the Banks, (v) the funding provisions of
[SECTION] 2.1 and [SECTION] 2.5 hereof, and (vi) the rights, duties and
obligations of the Agent specified in [SECTION] 14 hereof, may not be amended
without the written consent of each Bank affected thereby. No waiver shall
extend to or affect any obligation not expressly waived or impair any right
consequent thereon. No course of dealing or delay or omission on the part of
the Agent or any Bank in exercising any right shall operate as a waiver thereof
or otherwise be prejudicial thereto. No notice to or demand upon the Borrower
shall entitle the Borrower to other or further notice or demand in similar or
other circumstances.
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[SECTION] 26. SEVERABILITY. The provisions of this Agreement are
severable, and if any one clause or provision hereof shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof,
in such jurisdiction, and shall not in any manner affect such clause or
provision in any other jurisdiction, or any other clause or provision of this
Agreement in any jurisdiction.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument as of the date first set forth above.
XXXXXXX REAL ESTATE, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Chief Financial Officer
XXXXXXX OPERATING LIMITED PARTNERSHIP
BY: XXXXXXX REAL ESTATE, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Chief Financial Officer
THE FIRST NATIONAL BANK
OF BOSTON, INDIVIDUALLY AND
AS AGENT
By: /s/Xxxxxx X. Xxxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxxx
Director
By: /s/ Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx
Assistant Vice President
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