EXHIBIT 10.22
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of February 26, 1999,
among BEDFORD PROPERTY INVESTORS, INC., a Maryland corporation (the
"Company"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a
national banking association, and the several additional financial
institutions from time to time party to this Agreement (collectively, the
"Banks"; individually a "Bank"), BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as administrative agent for the Banks.
Factual Background
WHEREAS, the Company has requested that the Banks make
available to the Company a secured revolving line of credit; and
WHEREAS, the Banks have agreed to make available to the
Company a secured revolving line of credit on the terms and subject to
the conditions set forth in this Agreement.
Agreement
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties agree as follows:
1. Definitions.
1.1 Defined Terms. In addition to the terms defined
elsewhere in this Agreement, the following terms have the following
meanings:
"Administrative Agent" means Bank of America in its capacity
as administrative agent for the Banks hereunder, and any successor
administrative agent designated under Section 9.4.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the management
and policies of the other Person, whether through the ownership of voting
securities, by contract or otherwise. In no event shall any of the Banks
be deemed an "Affiliate" of the Company or of any Subsidiary of the
Company.
"Agent-Related Persons" means Bank of America and any
successor administrative agent designated under Section 9.4, together
with their respective Affiliates and the officers, directors, employees
and agents of such Persons.
"Agent's Payment Office" means the address for payments set
forth herein for the Administrative Agent, or such other address as the
Administrative Agent may from time to time specify.
"Agreement" means this Credit Agreement, as amended,
supplemented or modified from time to time.
"Applicable Margin" means (a) with respect to Reference Rate
Loans, zero (0) basis points; and (b) with respect to LIBOR Rate Loans,
(i) 110 basis points when Leverage is less than or equal to 0.30, (ii)
120 basis points when Leverage is greater than 0.30 but less than or
equal to 0.40, or (iii) 135 basis points when Leverage is greater than
0.40.
"Appraisal" means a real estate appraisal conducted in
accordance with the Uniform Standards of Professional Appraisal Practice
(as promulgated by the Appraisal Standards Board of the Appraisal
Foundation), all Requirements of Law applicable to the Banks and all
applicable internal policies of the Banks, prepared by the Administrative
Agent or undertaken by an independent appraisal firm satisfactory to the
Administrative Agent, and providing an assessment of fair market value
of a parcel of property, taking into account any and all Estimated
Remediation Costs.
"Appraised Value" means, for an Approved Parcel at any time,
an amount equal to the "as is" fair market value of such Approved Parcel
(excluding any portion of such Approved Parcel consisting of undeveloped
land, including excess land, to which no value will be assigned)
established by the Administrative Agent's most recently completed
Appraisal of such Approved Parcel. The Appraised Value of an Approved
Parcel shall be adjusted upon the completion and review by the Banks of
each Appraisal of such Approved Parcel (and, in the event of a
disagreement among the Banks, with the approval of the Administrative
Agent and the Majority Banks).
"Approved Parcel" means a Parcel satisfying all of the
conditions set forth in Section 4.1.
"Approved Parcel Value" means, for any Approved Parcel at any
time, the lesser of (a) the Collateral Value of such Approved Parcel at
such time and (b) the Cash Flow Value of such Approved Parcel at such
time.
"Assignee" has the meaning specified in subsection 10.8.1.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external legal counsel, the
allocated cost of internal legal services and all disbursements of
internal counsel.
"Availability" means, at any time, the difference between (a)
the lesser of (i) the Total Approved Parcel Value at such time and
(ii) the Maximum Commitment Amount at such time, and (b) the principal
amount outstanding under this Agreement at such time.
"Average Unused" has the meaning specified in Section 2.9.
"Bank" has the meaning specified in the introductory sentence
of this Agreement; Bank of America in its capacity as a lender hereunder
is one of the Banks. Unless the context otherwise clearly requires, any
reference to a "Bank" includes any such institution in its capacity as
Swap Provider, and also includes any of such institution's Affiliates
that may, at the time of determination, be Swap Providers.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act
of 1978, as amended from time to time (11 U.S.C. 101, et seq.).
"Bank of America" means Bank of America National Trust and
Savings Association, a national banking association.
"Borrowing" means a borrowing hereunder consisting of Loans of
the same Type made to the Company on the same day by the Banks under
Article 2 and, other than in the case of Reference Rate Loans, having the
same Interest Period, but does not include (a) a conversion of Loans of
one Type to another Type or (b) a continuation of a Loan as a Loan of the
same Type, but with a new Interest Period.
"Borrowing Base" means, at any time, the lesser of (i) the
Total Approved Parcel Value at such time and (ii) the Maximum Commitment
Amount at such time.
"Borrowing Notice" means a notice substantially in the form of
Exhibit A given by the Company to the Administrative Agent pursuant to
Section 2.3.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in San Francisco, California, are
authorized or required by law to close and, if the applicable Business
Day relates to any LIBOR Rate Loan, means such a day on which dealings
are carried on in the applicable offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case,
regarding capital adequacy of any Bank or of any corporation controlling
any Bank.
"Cash Flow" means, as of any calendar quarter, four (4) times
the sum of (i) the quarterly consolidated income from property operations
for the Company and all of the Permitted Partnerships (excluding income
from minority interests in Persons other than Permitted Partnerships),
and (ii) the consolidated depreciation and amortization of the Company
and all of the Permitted Partnerships (excluding depreciation and
amortization from minority interests in Persons other than Permitted
Partnerships) for such quarter, as evidenced by the most recently
delivered financial statements of the Company and the Permitted
Partnerships.
"Cash Flow Value" means, for any Approved Parcel at any time,
the maximum amount for which 74.074% of the Net Operating Income for such
Approved Parcel at such time would be sufficient to amortize such amount
in twenty-five (25) equal annual installments of principal and interest
at a per annum rate equal to the greater of (i) 1.75% per annum above the
average yield on seven-year United States treasury bonds maturing
approximately seven (7) years from the date of determination (as reported
by the Administrative Agent's Funding and Interest Rate Desk, or any
other recognized source of treasury yield quotations acceptable to the
Administrative Agent in its sole and absolute discretion, on the
determination date) or (ii) 8.0%, computed on the basis of a year of 365
or 366 days, as applicable, and actual day months.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended from time to time.
"Closing Date" means the date on which all conditions
precedent set forth in Section 4.2 are satisfied or waived by the
Administrative Agent.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any regulations promulgated thereunder.
"Collateral" means all property and interests in property and
proceeds thereof now owned or hereafter acquired by the Company or one
of its Subsidiaries in or upon which a Lien securing the Obligations now
or hereafter exists in favor of the Banks or the Administrative Agent on
behalf of the Banks, whether under this Agreement or under any other
Collateral Documents executed by any such Persons and delivered to the
Administrative Agent.
"Collateral Documents" means, collectively, (i) the Mortgages,
Assignments of Leases, and all other security agreements, mortgages,
deeds of trust, lease assignments and other similar agreements between
the Company or its Subsidiaries and the Banks or the Administrative
Agent, for the benefit of the Banks, now or hereafter delivered to the
Administrative Agent pursuant to or in connection with the transactions
contemplated hereby, and all financing statements (or comparable
documents) now or hereafter filed in accordance with the UCC (or
comparable law) naming the Company or any Subsidiaries as debtor in favor
of the Banks or the Administrative Agent, for the benefit of the Banks,
as secured party in connection therewith, and (ii) any amendments,
supplements, modifications, renewals, replacements, consolidations,
substitutions and extensions of any of the foregoing.
"Collateral Value" means, for any Approved Parcel at any time,
65% of the Appraised Value of such Approved Parcel at such time.
"Commitment" means the amount of the credit and the
outstanding Loans for which each Bank is obligated.
"Contingent Obligation" means, as to any Person, (a) any
Guaranty Obligation of that Person, and (b) any direct or indirect
obligation or liability, contingent or otherwise, of that Person in
respect of (i) any letter of credit or similar instrument issued for the
account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings or (ii) any Swap Contract. The amount of any
Contingent Obligation shall (subject, in the case of Guaranty
Obligations, to the last sentence of the definition of "Guaranty
Obligation") be deemed equal to the maximum reasonably anticipated
liability in respect thereof.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement to which such Person is a party or by
which it or any of its property is bound.
"Controlled Group" means the Company and all Persons (whether
or not incorporated) under common control or treated as a single employer
with the Company pursuant to Section 414(b), (c), (m) or (o) of the Code.
"Conversion Date" means any date on which the Company elects
to convert a Reference Rate Loan to a LIBOR Rate Loan or a LIBOR Rate
Loan to a Reference Rate Loan.
"Conversion/Continuation Notice" means a notice substantially
in the form of Exhibit B given by the Company to the Administrative Agent
pursuant to Section 2.4.
"Covenant Debt Service" means, at any time, the amount
necessary to amortize the sum of (a) total consolidated liabilities
(excluding (i) accounts payable and accrued expenses, (ii) dividends and
distributions payable, and (iii) other liabilities) of the Company and
all of the Permitted Partnerships (as evidenced by the most recently
received consolidated balance sheets for the Company and the Permitted
Partnerships), and (b) the aggregate amount of all then-outstanding but
undrawn letters of credit issued for the Company's account, in twenty-
five (25) equal annual installments of principal and interest at a per
annum rate equal to the greater of (i) 1.75% per annum above the average
yield on seven-year United States treasury bonds maturing approximately
seven (7) years from the date of determination (as reported by the
Administrative Agent's Funding and Interest Rate Desk, or any other
recognized source of treasury yield quotations acceptable to the
Administrative Agent in its sole and absolute discretion, on the
determination date) or (ii) 8.0%, computed on the basis of a year of 365
or 366 days, as applicable, and actual day months.
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or
otherwise remedied) constitute an Event of Default.
"Designated Representative" means Xxxxxxx X. Xxxxx, Xxxxxx X.
Xxxxxxx, Xxxxxx X. Xxxxxxx, Xxxx Xxxxxx or Xxxxx X. Xxxxx, or any other
person designated from time to time in writing by the Company, with the
consent of the Administrative Agent, as a Designated Representative.
"Disposition" means the sale, lease, conveyance or other
disposition of any Approved Parcel, other than (i) leases of an Approved
Parcel to third-party tenants in the ordinary course of business or
(ii) sales or other dispositions expressly permitted under Section 7.2.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $100,000,000; (ii) a Person that
is primarily engaged in the business of commercial banking and is an
Affiliate of a Bank, or (iii) any Person approved by Majority Banks and
the Administrative Agent.
"Entitled Land" means unimproved real Property satisfying all
of the following conditions: (a) the Company's intended use of such real
Property is permissible under the applicable general plan or its
equivalent, (b) such intended use is permissible under any applicable
specific plan, zoning classification and development agreement, (c) such
real Property has access to roads and utilities adequate for the
Company's intended use, and (d) the Company intends to improve such real
property within twenty-four (24) months of its acquisition.
"Environmental Claims" means all claims, however asserted, by
any Governmental Authority or other Person alleging potential liability
or responsibility for violation of any Environmental Laws or for injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage,
or otherwise alleging liability or responsibility for damages (punitive
or otherwise), cleanup, removal, remedial or response costs, restitution,
civil or criminal penalties, injunctive relief, or other type of relief,
resulting from or based upon (a) the presence, placement, discharge,
emission or release (including intentional and unintentional, negligent
and non-negligent, sudden or non-sudden, accidental or non-accidental
placement, spills, leaks, discharges, emissions or releases) of any
Hazardous Material at, in or from an Approved Parcel, or (b) any other
circumstances forming the basis of any violation, or alleged violation,
of any Environmental Laws.
"Environmental Indemnity" means the unsecured environmental
indemnity executed by the Borrower and delivered to the Administrative
Agent, for the benefit of the Banks, pursuant to Section 4.2.1(a).
"Environmental Laws" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental, health,
safety and land use matters; including CERCLA, the Clean Air Act, the
Federal Water Pollution Control Act of 1972, the Solid Waste Disposal
Act, the Federal Resource Conservation and Recovery Act, the Toxic
Substances Control Act, the Emergency Planning and Community
Right-to-Know Act, the California Hazardous Waste Control Law, the
California Solid Waste Management, Resource, Recovery and Recycling Act,
the California Water Code and the California Health and Safety Code.
"Environmental Permits" has the meaning specified in
subsection 5.12(b).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and regulations promulgated
thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company within the meaning
of Section 414(b), 414(c) or 414(m) of the Code.
"ERISA Event" means (a) a Reportable Event with respect to a
Qualified Plan or a Multi-employer Plan; (b) withdrawal by the Company
or any ERISA Affiliate from a Qualified Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA); (c) a complete or partial
withdrawal by the Company or any ERISA Affiliate from a Multi-employer
Plan; (d) the filing of a notice of intent to terminate, the treatment
of a plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a
Qualified Plan or Multi-employer Plan subject to Title IV of ERISA;
(e) failure by the Company or any member of the Controlled Group to make
required contributions to a Qualified Plan or Multi-employer Plan; (f) an
event or condition which might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Qualified Plan or
Multi-employer Plan; (g) the imposition of any liability under Title IV
of ERISA, other than PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Company or any ERISA Affiliate; (h) an
application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code with respect to any Plan;
(i) a non-exempt prohibited transaction occurs with respect to any Plan
for which the Company or any Subsidiary of the Company may be directly
or indirectly liable; or (j) a violation of the applicable requirements
of Section 404 or 405 of ERISA or the exclusive benefit rule under
Section 401(a) of the Code by any fiduciary or disqualified person with
respect to any Plan for which the Company or any member of the Controlled
Group may be directly or indirectly liable.
"Estimated Remediation Costs" means all costs associated with
performing work to remediate contamination of real property or
groundwater, including engineering and other professional fees and
expenses, costs to remove, transport and dispose of contaminated soil,
costs to "cap" or otherwise contain contaminated soil, and costs to pump
and treat water and monitor water quality.
"Event of Default" means any of the events or circumstances
specified in Section 8.1.
"Event of Loss" means, with respect to any Approved Parcel,
any of the following: (a) any loss or damage to, or destruction of, such
Approved Parcel; (b) any pending or threatened institution of any
proceedings for the condemnation or seizure of such Approval Parcel or
for the exercise of any right of eminent domain; or (c) any actual
condemnation, seizure or taking, by exercise of the power of eminent
domain or otherwise, of such Approved Parcel, or confiscation of such
Approved Parcel or the requisition of the use of such Approved Parcel.
"Federal Funds Rate" means, for any day, the rate published by
the Federal Reserve Bank of New York for the preceding Business Day as
"Federal Funds (Effective)"; (or, if not published, the arithmetic mean
of the rates for overnight Federal funds arranged prior to 9:00 a.m. (New
York City time) on that day quoted by three brokers of Federal Funds in
New York City as determined by the Administrative Agent).
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System or any successor thereof.
"Fee Letter" means the fee letter of even date herewith among
the Company, Bank of America and the Administrative Agent.
"Funds from Operations" means, for any fiscal quarter, the net
income of the Company for such quarter, excluding gains or losses from
debt restructuring and sales of property, plus depreciation and
amortization, after adjustments for unconsolidated ventures.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the accounting profession), or
in such other statements by such other entity as may be in general use
by significant segments of the U.S. accounting profession, which are
applicable to the circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of, or pertaining to, government, and any corporation or other entity
owned or controlled, through stock or capital ownership or otherwise, by
any of the foregoing.
"Gross Assets" means, at any time, the sum of (a) the total
consolidated assets of the Company and all Permitted Partnerships at such
time, and (b) the total consolidated accumulated depreciation of the
Company and all Permitted Partnerships at such time, as evidenced by the
most recently delivered financial statements of the Company and the
Permitted Partnerships.
"Guaranty Obligation" means, as applied to any Person, any
direct or indirect liability of that Person with respect to any
Indebtedness, lease, dividend, letter of credit or other obligation (the
"primary obligations") of another Person. The amount of any Guaranty
Obligation shall be deemed equal to the stated or determinable amount of
the primary obligation in respect of which such Guaranty Obligation is
made or, if not stated or if indeterminable, the maximum reasonably
anticipated liability in respect thereof.
"Hazardous Materials" means all those substances which are
regulated by, or which may form the basis of liability under, any
Environmental Law, including all substances identified under any
Environmental Law as a pollutant, contaminant, hazardous waste, hazardous
constituent, special waste, hazardous substance, hazardous material or
toxic substance, or petroleum or petroleum derived substance or waste.
"Indebtedness" of any Person means, without duplication,
(a) all indebtedness for borrowed money; (b) all obligations issued,
undertaken or assumed as the deferred purchase price of property or
services; (c) all reimbursement obligations with respect to surety bonds,
letters of credit and similar instruments (in each case, to the extent
material or non-contingent); (d) all obligations evidenced by notes,
bonds, debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of property, assets
or businesses; (e) all indebtedness created or arising under any
conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to property acquired by the Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of
such property); (f) all indebtedness referred to in clauses (a) through
(e) above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien
upon or in property owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness; and
(g) all Guaranty Obligations in respect of indebtedness or obligations
of others of the kinds referred to in clauses (a) through (e) above.
"Indemnified Liabilities" has the meaning specified in
Section 10.5.
"Indemnified Person" has the meaning specified in
Section 10.5.
"Insolvency Proceeding" means (a) any case, action or
proceeding before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors, or (b) any general
assignment for the benefit of creditors, composition, marshaling of
assets for creditors or other similar arrangement in respect of its
creditors generally or any substantial portion of its creditors; in each
case (a) and (b) undertaken under U.S. federal, state or foreign law,
including the Bankruptcy Code.
"Interest Payment Date" means the first day of each month
following disbursement of the initial Loan.
"Interest Period" means, with respect to any LIBOR Rate Loan,
the period commencing on the Business Day the Loan is disbursed or
continued or on the Conversion Date on which the Loan is converted to a
LIBOR Rate Loan and ending on the date thirty (30) or sixty (60) days
thereafter, as selected by the Company in its Borrowing Notice or
Conversion/Continuation Notice; provided that:
(a) if any Interest Period pertaining to a LIBOR Rate
Loan would otherwise end on a day that is not a Business Day, that
Interest Period shall be extended to the next succeeding 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 Business Day;
(b) any Interest Period pertaining to a LIBOR Rate Loan
that begins on the last 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 Business Day of the calendar month at the end of such Interest
Period; and
(c) no Interest Period for any LIBOR Rate Loan shall
extend beyond the Maturity Date.
"Lead Arranger" means NationsBanc Xxxxxxxxxx Securities LLC.
"Lending Office" means, as to any Bank, the office specified
as its "Lending Office" opposite its name on the signature pages hereto,
or such other office as such Bank may specify to the Company and the
Administrative Agent from time to time.
"Leverage" means, at any time, the ratio of (a) the sum of (i)
the total consolidated liabilities of the Company and all Permitted
Partnerships at such time (including as liabilities all then-outstanding
but undrawn letters of credit issued for the Company's account) and (ii)
all Contingent Obligations of the Company and all Permitted Partnerships
at such time, to (b) the sum of (i) the total consolidated assets of the
Company and all Permitted Partnerships at such time and (ii) the total
consolidated accumulated depreciation of the Company and all Permitted
Partnerships at such time, as evidenced by the most recent certificate
of a Responsible Officer of the Company delivered to the Administrative
Agent pursuant to Section 6.2(a) (for purposes of determining the
Applicable Margin, the Leverage calculation set forth in such certificate
shall be effective during the period from the first day of the first
month after the month in which such certificate is delivered to the
Administrative Agent through and including the last day of the month in
which the next such certificate is delivered to the Administrative Agent
pursuant to Section 6.2(a)).
"LIBOR" means the per annum rate of interest, rounded upward,
if necessary, to the nearest 1/16th of one percent (0.0625%), at which
the Administrative Agent's London Branch, London, England, would offer
U.S. dollar deposits in amounts and for periods comparable to those of
the applicable LIBOR Rate Loan and Interest Period to major banks in the
London U.S. dollar inter-bank market at approximately 11:00 a.m., London
time, on the first Business Day after the Company's rate election.
"LIBOR Rate" means, for each Interest Period in respect of any
LIBOR Rate Loan, the per annum rate of interest, rounded upward, if
necessary, to the nearest 1/100th of one percent, determined by the
following formula:
LIBOR
LIBOR Rate =
(1.00 - Reserve Percentage)
"LIBOR Rate Borrowing" means a Borrowing consisting of LIBOR
Rate Loans.
"LIBOR Rate Loan" means a Loan that bears interest based on
the LIBOR Rate.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance,
lien (statutory or other) or preference, priority or other security
interest or preferential arrangement of any kind or nature whatsoever
(including those created by, arising under or evidenced by any
conditional sale or other title retention agreement, the lessor's
interest under a capital lease (determined in accordance with GAAP), any
financing lease having substantially the same economic effect as any of
the foregoing, or the filing of any financing statement under the UCC or
any comparable law naming the owner of the asset to which such lien
relates as debtor) and any contingent or other agreement to provide any
of the foregoing, but not including the interest of a lessor under an
operating lease (determined in accordance with GAAP).
"Loan" means an extension of credit by a Bank to the Company
pursuant to Article 2, and may be a Reference Rate Loan or a LIBOR Rate
Loan.
"Loan Documents" means this Agreement, the Revolving Notes,
the Collateral Documents, and all documents (except for the Environmental
Indemnity) delivered to the Administrative Agent, on behalf of the Banks,
in connection therewith.
"Major Tenant" means, with respect to any Parcel, a tenant
occupying ten percent (10%) or more of the net rentable area of the
improvements located on such Parcel.
"Majority Banks" means at any time at least two (2) Banks then
holding at least 66-2/3% of the then aggregate unpaid principal amount
of the Loans (or, if no principal amount is then outstanding, at least
two (2) banks then having at least 66-2/3% of the unborrowed
Commitments); provided, however, that if at any time there is only one
Bank, then such one Bank shall constitute Majority Banks.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse change in,
or a material adverse effect upon, any of (a) the operations, business,
properties, condition (financial or otherwise) or prospects of the
Company, the Company and its Subsidiaries taken as a whole, or the
Company, its Subsidiaries and the Permitted Partnerships taken as a
whole; (b) the ability of the Company to perform under any Loan Document
and avoid any Event of Default; (c) the legality, validity, binding
effect or enforceability of any Loan Document; or (d) the perfection or
priority of any Lien granted to the Administrative Agent under any of the
Collateral Documents.
"Maturity Date" means September 1, 1999, as the same may be
extended pursuant to Section 2.7.
"Maximum Commitment Amount" means, at any time, an amount
equal to (i) $30,000,000.00 less (ii) the aggregate amount of Net
Refinancing Proceeds and Net Issuance Proceeds paid to the Administrative
Agent, for the account of the Banks, prior to such time, subject to the
provisions of Section 2.5.
"Mortgage" means any deed of trust, mortgage or other document
creating a Lien on real property or any interest in real property as
security for the Obligations.
"Multi-employer Plan" means a "multi-employer plan" (within
the meaning of Section 4001(a)(3) of ERISA) to which any member of the
Controlled Group (i) makes, is making, or is obligated to make
contributions, or (ii) during the preceding three calendar years has
made, or has been obligated to make, contributions.
"Net Issuance Proceeds" means, in respect of any issuance of
debt (including secured debt) or equity of the Company or any of its
Subsidiaries, cash proceeds and non-cash proceeds received or receivable
in connection therewith, net of reasonable out-of-pocket costs and
expenses paid or incurred in connection therewith (excluding amounts
payable to the Company or any Affiliate of the Company).
"Net Operating Income" means, for any Approved Parcel as of
any calendar quarter:
either (a) if such Approved Parcel has been owned by either
the Company or any Subsidiary of the Company for at least three (3)
consecutive calendar quarters for which quarterly operating
statements have been delivered to the Banks, the sum of (i) two (2)
times the quarterly gross income (before capital expenditures) for
such Approved Parcel, as evidenced by the most recently received
quarterly operating statements for such Approved Parcel, and
(ii) the quarterly gross income (before capital expenditures) for
such Approved Parcel for the two (2) consecutive quarters
immediately preceding the quarter for which the most recently
received quarterly operating statements relate, as evidenced by the
quarterly operating statements for such quarters,
or (b) if such Approved Parcel has been owned by either the
Company or any Subsidiary of the Company for at least two (2)
consecutive calendar quarters for which quarterly operating
statements have been delivered to the Banks but fewer than three (3)
consecutive calendar quarters for which quarterly operating
statements have been delivered to the Banks, the sum of (i) the
quarterly gross income (before capital expenditures) for such
Approved Parcel for the two (2) most recent consecutive calendar
quarters, as evidenced by the quarterly operating statements for
such Approved Parcel for such quarters, and (ii) one-half (1/2) of the
annual gross income for such Approved Parcel for the year in which
the determination is made, based on the proforma cash flow statement
set forth in the Appraisal for such Approved Parcel,
or (c) if such Approved Parcel has been owned by either the
Company or any Subsidiary of the Company for fewer than two (2) full
calendar quarters for which quarterly operating statements have been
delivered to the Banks, the annual gross income for such Approved
Parcel for the year in which the determination is made, based on the
pro forma cash flow statement set forth in the Appraisal for such
Approved Parcel,
less either (d) if such Approved Parcel has been owned by
either the Company or any Subsidiary of the Company for at least
four (4) consecutive calendar quarters for which quarterly operating
statements have been delivered to the Banks, the aggregate amount
of actual operating expenses other than capital expenditures
relating to such Approved Parcel for the immediately preceding
four (4) consecutive calendar quarters, as evidenced by the most
recently received quarterly operating statements for such Approved
Parcel and the quarterly operating statements for the three (3)
immediately preceding quarters,
or (e) if such Approved Parcel has been owned by either the
Company or any Subsidiary of the Company for fewer than four (4)
full calendar quarters for which quarterly operating statements have
been delivered to the Banks, the aggregate amount of annual
operating expenses other than capital expenditures relating to such
Approved Parcel for the year in which the determination is made,
based on the pro forma cash flow statement set forth in the
Appraisal for such Approved Parcel,
less (f) if the Administrative Agent has determined that some
or all of the improvements located on such Approved Parcel consist
of office space, $2.00 per square foot of net rentable area of space
in such Approved Parcel that the Administrative Agent has determined
to constitute office space and that is actually under lease on the
last day of the last calendar quarter for which the Administrative
Agent has received a certificate of a Responsible Officer pursuant
to Section 6.2(a), representing capital expenditures for office
space,
less (g) if the Administrative Agent has determined that some
or all of the improvements located on such Approved Parcel consist
of retail space, $0.80 per square foot of net rentable area of space
in such Approved Parcel that the Administrative Agent has determined
to constitute retail space and that is actually under lease on the
last day of the last calendar quarter for which the Administrative
Agent has received a certificate of a Responsible Officer pursuant
to Section 6.2(a), representing capital expenditures for retail
space,
less (h) if the Administrative Agent has determined that some
or all of the improvements located on such Approved Parcel consist
of research and development (other than office) space, $0.40 per
square foot of net rentable area of space in such Approved Parcel
that the Administrative Agent has determined to constitute research
and development (other than office) space and that is actually under
lease on the last day of the last calendar quarter for which the
Administrative Agent has received a certificate of a Responsible
Officer pursuant to Section 6.2(a), representing capital
expenditures for research and development (other than office) space,
less (i) if the Administrative Agent has determined that some
or all of the improvements located on such Approved Parcel consist
of flexible industrial (other than research and development or
warehouse) space, $0.25 per square of space in such Approved Parcel
that the Administrative Agent has determined to constitute flexible
industrial (other than research and development or warehouse) space
and that is actually under lease on the last day of the last
calendar quarter for which the Administrative Agent has received a
certificate of a Responsible Officer pursuant to Section 6.2(a),
representing capital expenditures for flexible industrial (other
than research and development or warehouse) space,
less (j) if the Administrative Agent has determined that some
or all of the improvements located on such Approved Parcel consist
of warehouse space, $0.07 per square foot of net rentable area of
space in such Approved Parcel that the Administrative Agent has
determined to constitute warehouse space and that is actually under
lease on the last day of the last calendar quarter for which the
Administrative Agent has received a certificate of a Responsible
Officer pursuant to Section 6.2(a), representing capital
expenditures for warehouse space.
"Net Proceeds" means proceeds in cash, checks or other cash
equivalent financial instruments as and when received by the Person
making a Disposition, net of: (a) the reasonable direct costs relating
to such Disposition (excluding amounts payable to the Company or any
Affiliate of the Company), (b) sale, use or other transaction taxes paid
or payable as a result thereof, and (c) amounts required to be applied
to repay principal, interest and prepayment premiums and penalties on
Indebtedness secured by a Lien encumbering the asset that is the subject
of such Disposition. "Net Proceeds" shall also include proceeds paid on
account of any Event of Loss, net of (i) all money actually applied to
repair or reconstruct the damaged property or property affected by the
condemnation or taking, (ii) all of the costs and expenses reasonably
incurred in connection with the collection of such proceeds, award or
other payments, and (iii) any amounts retained by or paid to parties
having superior rights to such proceeds, awards or other payments.
"Net Refinancing Proceeds" means, in respect of any
refinancing of any Indebtedness (including secured Indebtedness) of the
Company or any of its Subsidiaries or any Permitted Partnership, cash
proceeds and non-cash proceeds received or receivable in connection
therewith, net of (i) reasonable out-of-pocket costs and expenses paid
or incurred in connection therewith (excluding amounts payable to the
Company or any Affiliate of the Company) and (ii) amounts required to be
applied to repay principal, interest and prepayment premiums and
penalties on the Indebtedness refinanced.
"Notice of Lien" means any "notice of lien" or similar
document intended to be filed or recorded with any court, registry,
recorder's office, central filing office or other Governmental Authority
for the purpose of evidencing, creating, perfecting or preserving the
priority of a Lien securing obligations owing to a Governmental
Authority.
"Obligations" means all Loans and other Indebtedness,
advances, debts, liabilities, obligations, covenants and duties owing
from the Company to the Administrative Agent, any Bank or any other
Person required to be indemnified under any Loan Document, of any kind
or nature, present or future, whether or not evidenced by any note,
guaranty or other instrument, and arising under this Agreement or under
any other Loan Document, whether or not for the payment of money, whether
arising by reason of an extension of credit, loan, guaranty,
indemnification or in any other manner, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or
to become due, now existing or hereafter arising and however acquired.
"Ordinary Course of Business" means, in respect of any
transaction involving the Company, any Subsidiary of the Company or any
Permitted Partnership, the ordinary course of such Person's business,
substantially as conducted by any such Person prior to or as of the
Closing Date, and undertaken by such Person in good faith and not for
purposes of evading any covenant or restriction in any Loan Document.
"Organization Documents" means, (a) for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred
shareholders of such corporation, and all applicable resolutions of the
board of directors (or any committee thereof) of such corporation, and
(b) for any partnership, the partnership agreement, statement or
certificate of partnership and any fictitious business name or other
filing relating to such partnership.
"Parcel" means (a) a parcel of real property (i) that is owned
in fee by the Company or (ii) that is ground leased by the Company and
(b) any parcel of real property that is owned in fee by any wholly-owned
Subsidiary of the Company or any Permitted Partnership.
"Participant" has the meaning specified in subsection 10.8.3.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Encumbrances" means, with respect to any Parcel,
all matters to which the Administrative Agent consents in writing as
exceptions to the Title Policy covering such Parcel.
"Permitted Liens" has the meaning specified in Section 7.1.
"Permitted Partnership" means a limited partnership formed to
acquire one or more parcels of real property in which (i) the Company is
the sole general partner, (ii) the Company has sole management control
of such limited partnership and its properties, (iii) such limited
partnership has acquired all of its real property assets from one or more
of its limited partners, and the limited partners have received only
limited partnership interests in such limited partnership in exchange for
their contributions of real property to such limited partnership, and
(iv) distributions on interests in such limited partnership at any time
are based solely on the amount of dividends payable on the Company's
common stock at such time. Bedford Realty Partners, L.P., a California
limited partnership, is a Permitted Partnership.
"Person" means an individual, partnership, corporation,
business trust, joint stock company, limited liability company, trust,
unincorporated association, joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in
Section 3(3) of ERISA) which the Company or any member of the Controlled
Group sponsors or maintains or to which the Company or any member of the
Controlled Group makes, is making or is obligated to make contributions,
and includes any Multi-employer Plan or Qualified Plan.
"Property" means any estate or interest in any kind of
property or asset, whether real, personal or mixed, and whether tangible
or intangible.
"Pro Rata Share" means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal rounded to the ninth
decimal place) at such time of such Bank's share of the credit and the
outstanding Loans.
"Qualified Plan" means a pension plan (as defined in
Section 3(2) of ERISA) intended to be tax-qualified under Section 401(a)
of the Code and which any member of the Controlled Group sponsors,
maintains, or to which it makes, is making or is obligated to make
contributions, or in the case of a multiple employer plan (as described
in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding period covering at least five (5) plan years,
but excluding any Multi-employer Plan.
"Reference Rate" means the per annum rate of interest publicly
announced from time to time by the Administrative Agent at San Francisco,
California, as its "Reference Rate." The Reference Rate is set by the
Administrative Agent based on various factors, including the
Administrative Agent's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing loans. The Administrative Agent may price loans at, above or
below the Reference Rate. Any change in the Reference Rate shall take
effect on the day specified in the public announcement of such change.
"Reference Rate Borrowing" means a Borrowing consisting of
Reference Rate Loans.
"Reference Rate Loan" means a Loan that bears interest based
on the Reference Rate.
"Release Price" means, with respect to an Approved Parcel, the
amount, if any, necessary to reduce the aggregate principal amount
outstanding on the Loans to the Borrowing Base (computed without regard
to the Approved Parcel for which the Company is seeking release),
determined on the date of the Company's request to the Administrative
Agent that the Banks release their Lien on such Approved Parcel.
"Reportable Event" means, as to any Plan, (a) any of the
events set forth in Section 4043(b) of ERISA or the regulations
thereunder, other than any such event for which the 30-day notice
requirement under ERISA has been waived in regulations issued by the
PBGC, (b) a withdrawal from a Plan described in Section 4063 of ERISA,
or (c) a cessation of operations described in Section 4062(e) of ERISA.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation, or any determination
of an arbitrator or of a Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such
Person or any of its property is subject.
"Reserve Percentage" means the total of the maximum reserve
percentages for determining the reserves to be maintained by member banks
of the Federal Reserve System for "eurocurrency liabilities," as defined
in Federal Reserve Board Regulation D. The Reserve Percentage shall be
expressed in decimal form and rounded upward, if necessary, to the
nearest 1/100th of one percent, and shall include marginal, emergency,
supplemental, special and other reserve percentages.
"Responsible Officer" means the chief executive officer or the
president of the Company, or any other officer having substantially the
same authority and responsibility or, with respect to financial matters,
the chief financial officer or the treasurer of the Company, or any other
officer having substantially the same authority and responsibility.
"Revolving Note" means a promissory note of the Company
payable to the order of a Bank in substantially the form of Exhibit C,
and any amendments, supplements, modifications, renewals, replacements,
consolidations and extensions thereof, evidencing the aggregate
indebtedness of the Company to a Bank resulting from Loans made by such
Bank pursuant to this Agreement; "Revolving Notes" means, at any time,
all of the Revolving Notes executed by the Company in favor of a Bank
outstanding at such time.
"SEC" means the Securities and Exchange Commission, or any
successor thereto.
"Secured Loan Agreement" means that certain Fourth Amended and
Restated Credit Agreement dated as of June 15, 1998, among the Company,
the banks party thereto, and Bank of America, as administrative agent for
the Banks.
"Solvent" means, as to any Person at any time, that (a) the
fair value of the Property of such Person is greater than the amount of
such Person's liabilities (including disputed, contingent and
unliquidated liabilities) as such value is established and liabilities
evaluated for purposes of Section 101(32) of the Bankruptcy Code and, in
the alternative, for purposes of the California Uniform Fraudulent
Transfer Act and any other applicable fraudulent conveyance statute;
(b) the present fair saleable value of the Property of such Person is not
less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured; (c) such
Person is able to realize upon its Property and pay its debts and other
liabilities (including disputed, contingent and unliquidated liabilities)
as they mature in the normal course of business; (d) such Person does not
intend to, and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay as such debts and liabilities mature;
and (e) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital.
"Specified Swap Contract" means any Swap Contract made or
entered into at any time, or in effect at any time, whether as a result
of assignment or transfer or otherwise, between the Company and any Swap
Provider, which Swap Contract is entered into for the purpose of
mitigating interest rate or currency exchange risk relating to any Loan
and as to which the Company's final scheduled payment is not later than
the Maturity Date.
"Specified Swap Exposure" means, at any time, an amount equal
to the sum of (a) ten percent (10%) of the notional amount of each
interest rate Specified Swap Contract outstanding at such time, and (b)
three percent (3%) of the notional amount of each interest rate floor or
interest rate collar Specified Swap Contract outstanding at such time.
"Specified Swap Obligations" has the meaning specified in
Section 8.5.
"Subsidiary" of a Person means any corporation, association,
partnership, joint venture or other business entity of which more
than 50% of the voting stock, membership interests or other equity
interests (in the case of Persons other than corporations), is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof.
"Swap Contract" means any agreement, whether or not in
writing, relating to any transaction that is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity or
equity index swap or option, bond, note or xxxx option, interest rate
option, forward foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate swap, swaption, currency
option or any other, similar transaction (including any option to enter
into any of the foregoing) or any combination of the foregoing and,
unless the context otherwise clearly requires, any master agreement
relating to or governing any or all of the foregoing.
"Swap Provider" means any Bank, or any Affiliate of any Bank,
that is at the time of determination a party to a Swap Contract with the
Company.
"Tangible Net Worth" means, at any time, the total
consolidated stockholders' equity of the Company at such time, plus the
amount of minority interests in all Permitted Partnerships at such time
(valuing preferred stock at face value and excluding as assets (i) any
loans to tenants for tenant improvements and (ii) goodwill and other
intangible assets, and valuing all real property at the lower of book or
market value (where market value is based on the most recent Appraisal
for each Approved Parcel)), as evidenced by the Company's most recently
delivered financial statements.
"Title Policy" means any policy of title insurance required
pursuant to this Agreement.
"Total Approved Parcel Value" means, at any time, the sum of
the Approved Parcel Values for all of the Approved Parcels at such time;
provided, however, that the aggregate Approved Parcel Values of all of
the Approved Parcels owned by Permitted Partnerships shall not, at any
time, exceed ten percent (10%) of the Total Approved Parcel Value at such
time.
"Transferee" has the meaning specified in subsection 10.8.5.
"Type" means, in connection with a Loan, the characterization
of such loan as a Reference Rate Loan or a LIBOR Rate Loan.
"UCC" means the Uniform Commercial Code as in effect in any
jurisdiction, as the same may be amended, modified or supplemented from
time to time.
"Unfunded Pension Liabilities" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current
value of that Plan's assets, determined in accordance with the
assumptions used by the Plan's actuaries for funding the Plan pursuant
to section 412 of the Code for the applicable plan year.
"Unsecured Loan Agreement" means that certain Line of Credit
Loan Agreement (Unsecured Loan) dated as of June 15, 1998, among the
Company, the banks party thereto, and Bank of America, as administrative
agent for the Banks.
1.2 Other Interpretive Provisions.
1.2.1 Use of Defined Terms. Unless otherwise
specified herein or therein, all terms defined in this Agreement shall
have the defined meanings when used in any certificate or other document
made or delivered pursuant to this Agreement. The meaning of defined
terms shall be equally applicable to the singular and plural forms of the
defined terms. Terms (including uncapitalized terms) not otherwise
defined herein and that are defined in the UCC shall have the meanings
therein described.
1.2.2 Certain Common Terms.
(a) The Agreement. The words "hereof," "herein,"
"hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and section, schedule and exhibit
references are to this Agreement unless otherwise specified.
(b) Documents. The term "documents" includes any and
all instruments, documents, agreements, certificates, indentures,
notices and other writings, however evidenced.
(c) Including. The term "including" is not limiting,
and means "including without limitation."
(d) Performance. Whenever any performance obligation
hereunder (other than a payment obligation) shall be stated to be
due or required to be satisfied on a day other than a Business Day,
such performance shall be made or satisfied on the next succeeding
Business Day. In the computation of periods of time from a
specified date to a later specified date, the word "from" means
"from and including"; the words "to" and "until" each mean "to but
excluding," and the word "through" means "to and including". If any
provision of this Agreement refers to any action taken or to be
taken by any Person, or which such Person is prohibited from taking,
such provision shall be interpreted to encompass any and all means,
direct or indirect, of taking or not taking such action.
(e) Contracts. Unless otherwise expressly provided in
this Agreement, references to agreements and other contractual
instruments shall be deemed to include all subsequent amendments and
other modifications thereto, but only to the extent such amendments
and other modifications are not prohibited by the terms of any Loan
Document.
(f) Laws. References to any statute or regulation are
to be construed as including all statutory and regulatory provisions
consolidating, amending or replacing the statute or regulation.
(g) Captions. The captions and headings of this
Agreement are for convenience of reference only, and shall not
affect the construction of this Agreement.
(h) Independence of Provisions. The parties
acknowledge that this Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the
same or similar matters, and that such limitations, tests and
measurements are cumulative and must each be performed, except as
expressly stated to the contrary in this Agreement.
(i) Exhibits and Schedules. All of the exhibits and
schedules attached to this Agreement are incorporated herein by this
reference.
1.2.3 Accounting Principles.
(a) Accounting Terms. Unless the context otherwise
clearly requires, all accounting terms not expressly defined herein
shall be construed, and all financial computations required under
this Agreement shall be made, in accordance with GAAP, consistently
applied.
(b) Fiscal Periods. References herein to "fiscal
year" and "fiscal quarter" refer to such fiscal periods of the
Company.
2. The Credit.
2.1 Amount and Terms of Commitment. Each Bank severally
agrees, on the terms and subject to the conditions hereinafter set forth,
to make Loans to the Company from time to time on any Business Day during
the period from the Closing Date to the Maturity Date (as it may be
extended from time to time pursuant to Section 2.7) for the purpose of
(i) facilitating the Company's acquisition of improved real property, and
(ii) financing the Company's operations, including development activities
(subject to the provisions of Sections 7.15 and 7.16), in an aggregate
amount not to exceed at any time outstanding such Bank's Pro Rata Share
of the Availability. Notwithstanding any contrary provision of this
Agreement, the aggregate principal amount of all outstanding Loans shall
not at any time exceed the Borrowing Base at such time. Within the
limits of the Availability, and subject to the other terms and conditions
hereof, the Company may borrow under this Section 2.1 prior to the
then-applicable Maturity Date, repay pursuant to Section 2.6 and reborrow
pursuant to this Section 2.1 prior to the then-applicable Maturity Date.
2.2 Loan Accounts.
2.2.1 The Loans made by each Bank shall be evidenced
by one or more loan accounts or records maintained by such Bank and the
Administrative Agent in the ordinary course of business. The loan
accounts or records maintained by the Administrative Agent and each Bank
shall be conclusive absent manifest error of the amounts of the Loans
made by the Banks to the Company and the interest and payments thereon.
Any failure so to record or any error in doing so shall not, however,
limit or otherwise affect the obligation of the Company hereunder to pay
any amount owing with respect to the Loans.
2.2.2 The Loans made by each Bank shall be evidenced
by a Revolving Note payable to the order of such Bank in an amount equal
to such Bank's Pro Rata Share of the Maximum Commitment Amount on the
Closing Date. Such Bank may endorse on the schedule annexed to its
Revolving Note(s) the date, amount and maturity of each Loan that it
makes, the purpose of the Loan, the amount of each payment of principal
that the Company makes with respect thereto and the source of the funds
from which each principal payment is made. The Company irrevocably
authorizes each Bank to endorse its Revolving Note(s), and such Bank's
record shall be conclusive absent manifest error; provided, however, that
any Bank's failure to make, or its error in making, a notation thereon
with respect to any Loan shall not limit or otherwise affect the
Company's obligations to such Bank hereunder or under its Revolving
Note(s).
2.3 Procedure for Obtaining Credit. Each Borrowing shall be
made upon the irrevocable written notice (including notice via facsimile
confirmed immediately by a telephone call) of the Company in the form of
a Borrowing Notice signed by a Designated Representative (which notice
must be received by the Administrative Agent prior to 9:30 a.m., San
Francisco time, (i) three (3) Business Days prior to the requested
borrowing date, in the case of LIBOR Rate Loans, or (ii) on the requested
borrowing date, in the case of Reference Rate Loans), specifying:
(a) the amount of the Borrowing, which in the case of
a Borrowing shall be in an aggregate minimum principal amount of
(i) Two Hundred Fifty Thousand dollars ($250,000) for Reference Rate
Borrowings, and (ii) One Million dollars ($1,000,000) for any LIBOR
Rate Borrowings;
(b) the requested borrowing date, which shall be a
Business Day;
(c) the Type of Loans comprising the Borrowing; and
(d) in the case of a LIBOR Rate Borrowing, the duration
of the Interest Period applicable to the Loans comprising such LIBOR
Rate Borrowing. If the Borrowing Notice fails to specify the
duration of the Interest Period for the Loans comprising a LIBOR
Rate Borrowing, such Interest Period shall be thirty (30) days.
Unless the Majority Banks otherwise agree, during the existence of a
Default or Event of Default, the Company may not elect to have a Loan
made as, or converted into or continued as, a LIBOR Rate Loan. After
giving effect to any Loan, there shall not be more than five (5)
different Interest Periods in effect.
2.4 Conversion and Continuation Elections.
2.4.1 The Company may, upon irrevocable written
notice to the Administrative Agent in accordance with subsection 2.5.2:
(a) elect to convert, on any Business Day, any
Reference Rate Loans (or any part thereof in an amount not less than
$1,000,000.00) into LIBOR Rate Loans;
(b) elect to convert on any Interest Payment Date any
LIBOR Rate Loans maturing on such Interest Payment Date (or any part
thereof in an amount not less than $1,000,000.00) into Reference
Rate Loans; or
(c) elect to renew on any Interest Payment Date any
LIBOR Rate Loans maturing on such Interest Payment Date (or any part
thereof in an amount not less than $1,000,000.00);
provided, that if the aggregate amount of LIBOR Rate Loans in respect of
any Borrowing shall have been reduced, by payment, prepayment or
conversion of part thereof, to less than $1,000,000.00, such LIBOR Rate
Loans shall automatically convert into Reference Rate Loans, and on and
after such date the right of the Company to continue such Loans as, and
convert such Loans into, LIBOR Rate Loans shall terminate.
2.4.2 The Company shall deliver by telex, cable or
facsimile, confirmed immediately in writing, a Notice of
Conversion/Continuation signed by a Designated Representative (which
notice must be received by the Administrative Agent not later than 9:30
a.m. San Francisco time, (i) at least three (3) Business Days prior to
the Conversion Date or continuation date, if the Loans are to be
converted into or continued as LIBOR Rate Loans, or (ii) on the
Conversion Date, if the Loans are to be converted into Reference Rate
Loans) specifying:
(a) the proposed Conversion Date or continuation date;
(b) the aggregate amount of Loans to be converted or
continued;
(c) the nature of the proposed conversion or
continuation; and
(d) if the Company elects to convert a Reference Rate
Loan into a LIBOR Rate Loan or elects to continue a LIBOR Rate Loan,
the duration of the Interest Period applicable to such Loan. If the
Conversion/Continuation Notice fails to specify the duration of the
Interest Period for a LIBOR Rate Loan, such Interest Period shall
be thirty (30) days.
2.4.3 If upon the expiration of any Interest Period
applicable to LIBOR Rate Loans the Company has failed to select a new
Interest Period to be applicable to LIBOR Rate Loans, or if any Default
or Event of Default shall then exist, the Company shall be deemed to have
elected to convert LIBOR Rate Loans into Reference Rate Loans effective
as of the expiration date of such current Interest Period.
2.4.4 Notwithstanding any other provision contained
in this Agreement, after giving effect to any conversion or continuation
of any Loans, there shall not be more than five (5) different Interest
Periods in effect.
2.5 Voluntary Termination or Reduction of Commitment. The
Company may, upon not less than ninety (90) days' prior written notice
to the Administrative Agent, terminate the Banks' commitment to make
Loans to the Company or permanently reduce the Maximum Commitment Amount
by a minimum amount of $1,000,000.00 or any multiple of $1,000,000.00 in
excess thereof, unless, after giving effect thereto and to any
prepayments of Loans made on the effective date thereof, the aggregate
principal amount of the then-outstanding Loans would exceed the
Borrowing Base at such time. Once reduced in accordance with this
Section 2.6, the Maximum Commitment Amount may not be increased. Any
reduction of the commitment amounts shall be applied to each Bank
according to its Pro Rata Share. No commitment or extension fees paid
prior to the effective date of any reduction of the Maximum Commitment
Amount or termination of the Bank's commitment to make Loans to the
Company shall be refunded.
2.6 Principal Payments.
2.6.1 Optional Repayments. Subject to Section 3.4,
the Company may, at any time or from time to time, upon at least one (1)
Business Day's prior written notice to the Administrative Agent signed
by a Designated Representative, ratably prepay Loans in part in an amount
not less than $250,000.00; provided, however, that subject to the
provisions of Sections 2.5 and 2.12, the Company shall not repay the
Loans in full prior to the Maturity Date, and there shall be deemed
outstanding at all times prior to the Maturity Date principal in the
amount of at least $10.00 to the extent necessary to maintain the liens
granted in the Collateral Documents. Such notice of prepayment shall
specify the date and amount of such prepayment and the Type(s) of Loans
to be repaid. The Administrative Agent will promptly notify each Bank
of its receipt of any such notice, and of such Bank's Pro Rata Share of
such prepayment. If the Company gives a prepayment notice to the
Administrative Agent, such notice is irrevocable and the prepayment
amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to such date, if
required by the Administrative Agent, on the amount prepaid and all
amounts required to be paid pursuant to Section 3.4.
2.6.2 Mandatory Repayments.
(a) Borrowing Base Limit. Should the aggregate
principal amount of the outstanding Loans at any time exceed the
Borrowing Base at such time, the Company shall immediately repay such
excess to the Administrative Agent, for the account of the Banks.
(b) Approved Parcel Dispositions. If the Company or
any of its Subsidiaries or any Permitted Partnership shall at any time
or from time to time agree to enter into a Disposition, or shall suffer
an Event of Loss in which the anticipated Net Proceeds exceed
$250,000.00, then (i) the Company shall promptly notify the
Administrative Agent of such proposed Disposition or such Event of Loss
(including the amount of the estimated Net Proceeds to be received by the
Company or its Subsidiary in respect thereof) and (ii) promptly upon
receipt by the Company or its Subsidiary or the Permitted Partnership of
the Net Proceeds of such Disposition or Event of Loss, the Company shall
ratably repay the Loans in an aggregate amount equal to the Release
Price, in the case of a Disposition, or the amount of such Net Proceeds,
in the case of an Event of Loss.
(c) Net Refinancing Proceeds. If the Company or any of
its Subsidiaries or any Permitted Partnership shall at any time or from
time to time agree to refinance any real Property, then (i) the Company
shall promptly notify the Administrative Agent of such proposed
refinancing (including the amount of the estimated Net Refinancing
Proceeds to be received by the Company or its Subsidiary or Permitted
Partnership in respect thereof) and (ii) promptly upon receipt by the
Company or its Subsidiary or Permitted Partnership of such Net
Refinancing Proceeds, the Company shall ratably repay the Loans in an
aggregate amount equal to the amount of such Net Refinancing Proceeds.
(d) Net Issuance Proceeds. If the Company or any of
its Subsidiaries shall at any time or from time to time agree to issue
any new debt or equity securities (whether in a public or a private
transaction), then (i) the Company shall promptly notify the
Administrative Agent of such proposed securities issuance (including the
amount of the estimated Net Issuance Proceeds to be received by the
Company or its Subsidiary in respect thereof) and (ii) promptly upon
receipt by the Company or its Subsidiary of such Net Issuance Proceeds,
the Company shall ratably repay the Loans in an aggregate amount equal
to the amount of such Net Issuance Proceeds.
(e) Application of Repayments. Any repayments pursuant
to this subsection 2.6.2 shall be (i) subject to Section 3.4, and
(ii) applied first to any Reference Rate Loans then outstanding and then
to LIBOR Rate Loans with the shortest Interest Periods remaining.
Notwithstanding any contrary provision of this subsection 2.6.2, but
subject to the provisions of Section 2.5, there shall be deemed
outstanding on the Loans at all times prior to the Maturity Date
principal in the amount of at least $10.00 to the extent necessary to
maintain the liens granted in the Collateral Documents.
2.6.3 Repayment at Maturity. The Company shall
repay the principal amount of all outstanding Loans on the Maturity Date
or, if earlier, upon termination of the Banks' commitment pursuant to
Section 2.5.
2.7 Extension of Maturity Date. At the Company's option, the
Maturity Date may be extended for two (2) periods of three (3) months
each, to December 1, 1999, if the initial extension is exercised, or to
March 1, 2000, if both extensions are exercised, provided that all of the
following conditions are satisfied as to each requested extension:
(a) The Administrative Agent shall have received a
written extension request from the Company signed by a Responsible
Officer (i) at least thirty (30) days and not more than sixty (60)
days prior to the initial Maturity Date or (ii) at least ten (10)
days and not more than thirty (30) days prior to the first extended
Maturity Date;
(b) No Default or Event of Default shall have occurred,
and the Administrative Agent shall have received a certificate to
that effect signed by a Responsible Officer;
(c) The representations and warranties set forth in
this Agreement and the other Loan Documents shall be correct as of
the applicable Maturity Date as though made on and as of that date,
and the Administrative Agent shall have received a certificate to
that effect signed by a Responsible Officer;
(d) As of the applicable Maturity Date, the Maximum
Commitment Amount is not less than Ten Million Dollars
($10,000,000.00);
(e) The Company shall have paid to the Administrative
Agent, for the account of the Banks, an extension fee in the amount
set forth in the Fee Letter; and
(f) The conditions set forth in subsections 4.3.6 and
4.3.7 shall have been satisfied to the extent necessary to evidence
the extension of the Maturity Date and to maintain and insure the
validity and the priority of the Liens securing the Obligations.
2.8 Interest.
2.8.1 Accrual Rate. Subject to subsection 2.8.3,
each Loan shall bear interest on the outstanding principal amount thereof
from the date when made until it becomes due at a rate per annum equal
to the LIBOR Rate or the Reference Rate, as the case may be, plus the
Applicable Margin.
2.8.2 Payment. Interest on each Loan shall be
payable in arrears on each Interest Payment Date. Interest shall also
be payable on the date of any repayment of Loans pursuant to
subsections 2.6.1 and 2.6.2 for the portion of the Loans so repaid and
upon payment (including prepayment) in full thereof, if required by the
Administrative Agent, and, during the existence of any Event of Default,
interest shall be payable on demand.
2.8.3 Default Interest. Commencing (i) ten (10)
Business Days after the occurrence of any Event of Default under
subsection 8.1.3 or (ii) upon the occurrence of any other Event of
Default, and continuing thereafter while such Event of Default exists,
or after maturity or acceleration, the Company shall pay interest (after
as well as before entry of judgment thereon to the extent permitted by
law) on the principal amount of all Obligations due and unpaid, at a rate
per annum which is determined by adding 3% per annum to the Applicable
Margin then in effect for such Loans and, in the case of Obligations not
subject to an Applicable Margin, at a rate per annum equal to the
Reference Rate plus 3.00%; provided, however, that, on and after the
expiration of any Interest Period applicable to any LIBOR Rate Loan
outstanding on the date of occurrence of such Event of Default or
acceleration, the principal amount of such Loan shall, during the
continuation of such Event of Default or after acceleration, bear
interest at a rate per annum equal to the Reference Rate plus 3.00%.
2.8.4 Maximum Legal Rate. Notwithstanding any
contrary provision this Agreement, the Company's obligations to any Bank
hereunder shall be subject to the limitation that payments of interest
shall not be required, for any period for which interest is computed
hereunder, to the extent (but only to the extent) that such Bank's
contracting for or receiving such payment would be contrary to the
provisions of any law applicable to such Bank limiting the highest rate
of interest that such Bank may lawfully contract for, charge or receive,
and in such event the Company shall pay such Bank interest at the highest
rate permitted by applicable law.
2.9 Fees. The Company shall pay to the Administrative Agent,
for the account of the Banks (based on the allocations set forth below
or such other allocations as may be agreed to by or among the Banks, or
any of them, in writing from time to time): (a) on the Closing Date a
one-time commitment fee equal to the amount set forth in the Fee Letter;
and (b) an unused commitment fee equal to (i) 0.200% per annum of the
average during a calendar quarter of the daily difference between the
Maximum Commitment Amount and the principal amount outstanding hereunder
(the "Average Unused"), if the weighted average principal amount
outstanding hereunder during such calendar quarter is less than fifty
percent (50%) of the weighted average Maximum Commitment Amount during
such calendar quarter, or (ii) 0.125% per annum of the Average Unused if
the weighted average principal amount outstanding hereunder during such
calendar quarter is greater than or equal to fifty percent (50%) of the
weighted average Maximum Commitment Amount during such calendar quarter,
in each case measured quarterly and payable quarterly in arrears on each
January 1, April 1, July 1, and October 1, commencing April 1, 1999 (for
the portion of the calendar quarter ending March 31, 1999). In addition,
the Company shall pay to the Administrative Agent, for its own account,
an agency fee in an amount and at the times set forth in the Fee Letter.
2.10 Computation of Fees and Interest. All computations of
interest and fees under this Agreement shall be made on the basis of a
360-day year and actual days elapsed, which results in more interest or
fees being paid than if computed on the basis of a 365-day year.
Interest and fees shall accrue during each period during which interest
or such fees are computed from the first day thereof to the last day
thereof. Any change in the interest rate on a Loan resulting from a
change in the Reference Rate or the Reserve Percentage shall become
effective as of the opening of business on the day on which such change
in the Reference Rate or the Reserve Percentage becomes effective. Each
determination of an interest rate by the Administrative Agent pursuant
to any provision of this Agreement shall be conclusive and binding on the
Company and the Banks in the absence of manifest error.
2.11 Payments by the Company.
2.11.1 All payments (including prepayments) to be made
by the Company on account of principal, interest, fees and other amounts
required hereunder shall be made without set off or counterclaim and
shall, except as otherwise expressly provided herein, be made to the
Administrative Agent for the account of the Banks at the Administrative
Agent's Payment Office, in dollars and in immediately available funds,
no later than 10:00 a.m. San Francisco time on the date specified herein.
The Administrative Agent will promptly distribute to each Bank its Pro
Rata Share (or other applicable share as provided herein) of such payment
in like funds as received. Any payment received by the Administrative
Agent later than 10:00 a.m. San Francisco time shall be deemed to have
been received on the immediately succeeding Business Day and any
applicable interest or fee shall continue to accrue.
2.11.2 Subject to the provisions set forth in the
definition of the term "Interest Period," whenever any payment hereunder
is stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of interest or
fees, as the case may be.
2.11.3 Unless the Administrative Agent receives notice
from the Company prior to the date on which any payment is due and
payable to the Banks that the Company will not make such payment in full
as and when required, the Administrative Agent may assume that the
Company has made such payment in full to the Administrative Agent on such
date in immediately available funds and the Administrative Agent may (but
shall not be so required), in reliance upon such assumption, distribute
to each Bank on such date an amount equal to the amount then due and
payable to such Bank. If and to the extent the Company has not made such
payment in full to the Administrative Agent, each Bank shall repay to the
Administrative Agent on demand the amount distributed to such Bank,
together with interest thereon at the Federal Funds Rate for each day
from the date such amount is distributed to such Bank until the date
repaid.
2.12 Payments by the Banks to the Administrative Agent.
2.12.1 With respect to any Borrowing, unless the
Administrative Agent receives notice from a Bank at least one (1)
Business Day prior to the date of such Borrowing, that such Bank will not
make available to the Administrative Agent, for the account of the
Company, the amount of that Bank's Pro Rata Share of the Borrowing as and
when required hereunder, the Administrative Agent may assume that each
Bank has made such amount available to the Administrative Agent in
immediately available funds on the borrowing date and the Administrative
Agent may (but shall not be so required), in reliance upon such
assumption, make available to the Company on such date a corresponding
amount. If and to the extent any Bank shall not have made its full
amount available to the Administrative Agent in immediately available
funds and the Administrative Agent in such circumstances has made
available to the Company such amount, that Bank shall, on the Business
Day following such borrowing date, make such amount available to the
Administrative Agent, together with interest at the Federal Funds Rate
for each day during such period. A notice of the Administrative Agent
submitted to any Bank with respect to amounts owing under this
Section 2.12 shall be conclusive absent manifest error. If such amount
is so made available, such payment to the Administrative Agent shall
constitute such Bank's Loan on the date of Borrowing for all purposes of
this Agreement. If such amount is not made available to the
Administrative Agent on the Business Day following the Borrowing Date,
the Administrative Agent will notify the Company of such failure to fund
and, upon demand by the Administrative Agent, the Company shall pay such
amount to the Administrative Agent for the Administrative Agent's
account, together with interest thereon for each day elapsed since the
date of such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
2.12.2 The failure of any Bank to make any Loan on any
Borrowing Date shall not relieve any other Bank of any obligation
hereunder to make a Loan on such Borrowing Date, but no Bank shall be
responsible for the failure of any other Bank to make the Loan to be made
by such other Bank on any borrowing date.
2.13 Sharing of Payments, Etc. If, other than as expressly
provided elsewhere herein, any Bank shall obtain on account of the
Obligations owing to it any payment (whether voluntary, involuntary, or
otherwise) in excess of its ratable share (or other share contemplated
hereunder), such Bank shall immediately (a) notify the Administrative
Agent of such fact, and (b) purchase from the other Banks such
participations in the Loans made by them as shall be necessary to cause
such purchasing Bank to share the excess payment pro rata with each of
them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Bank, such purchase
shall to that extent be rescinded, and each other Bank shall repay to the
purchasing Bank the purchase price paid therefor, together with an amount
equal to such paying Bank's ratable share (according to the proportion
of (i) the amount of such paying Bank's required repayment to (ii) the
total amount so recovered from the purchasing Bank) of any interest or
other amount paid or payable by the purchasing Bank in respect of the
total amount so recovered. The Company agrees that any Bank so
purchasing a participation from another Bank may, to the fullest extent
permitted by law, exercise all its rights of payment (other than the
right of set-off) with respect to such participation as fully as if such
Bank were the direct creditor of the Company in the amount of such
participation. The Administrative Agent will keep records (which shall
be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify
the Banks following any such purchases or repayments.
2.14 Security; Appraisal of Approved Parcels. All obligations
of the Company under this Agreement, the Revolving Notes and all other
Loan Documents (but not including the Environmental Indemnity) shall be
secured in accordance with the Collateral Documents.
2.15 Release of Lien on Approved Parcel.
2.15.1 Release Conditions. The Administrative Agent
shall reconvey and release its Lien on an Approved Parcel upon the
Company's satisfaction of all of the following conditions precedent:
(a) The Company shall have submitted to the
Administrative Agent a written request that the Administrative Agent
reconvey and release its Lien on such Approved Parcel;
(b) The Company shall have paid to the Administrative
Agent, for the account of the Banks, the lesser of (i) the Release
Price for such Approved Parcel, or (ii) the then-outstanding
aggregate principal amount of the Loans;
(c) There shall have occurred no Default or Event of
Default that remains uncured, and the Administrative Agent shall
have received a certificate to that effect signed by a Responsible
Officer;
(d) The Approved Parcel to be reconveyed constitutes a
legally separable and transferable lot or parcel under all
applicable laws, ordinances, rules and regulations relating to the
subdivision or parceling of real property and the transfer thereof;
and
(e) Upon the Administrative Agent's request, the
Administrative Agent has been furnished, at the Company's sole cost,
with a CLTA form 111 indorsement or such other indorsements to any
Title Policy as the Administrative Agent may require, assuring the
Administrative Agent that the reconveyance will not result in the
subordination of the lien of any Mortgage as to the remaining
Approved Parcels to any other lien or claim affecting any such
Approved Parcels.
The foregoing conditions precedent are solely for the benefit of the
Administrative Agent and the Banks, any may be waived in a writing signed
by the Administrative Agent, with the consent of the Majority Banks, and
in no other manner.
2.15.2 Application of Release Price. The Release Price
of each Approved Parcel shall be applied, in the Administrative Agent's
sole discretion, first to any amounts due hereunder other than interest
or principal then due and payable, then to interest then due, and then
to the prepayment of principal (first to any Reference Rate Loans then
outstanding and then to LIBOR Rate Loans with the shortest Interest
Periods remaining).
2.16 Collateral Documents. If (a) any provision of any
Collateral Document shall for any reason cease to be valid and binding
on or enforceable against the Company or any Subsidiary of the Company
party thereto, or the Company or any Subsidiary of the Company shall so
state in writing or bring an action to limit its obligations or
liabilities thereunder or (b) any Collateral Document shall for any
reason (other than pursuant to the terms thereof) cease to create a valid
security interest in the Collateral purported to be covered thereby or
such security interest shall for any reason cease to be a perfected and
first priority security interest subject only to Permitted Liens and
Permitted Encumbrances, the Parcel encumbered by such Collateral Document
shall, at the option of the Majority Banks, immediately cease to be an
Approved Parcel, the Borrowing Base and the Availability shall
immediately be adjusted to reflect such change and the Company shall
repay to the Administrative Agent, for the benefit of the Banks, within
thirty (30) days after notice from the Administrative Agent, any amounts
payable pursuant to Section 2.6.2(a).
3. Taxes, Yield Protection and Illegality.
3.1 Taxes. If any taxes (other than taxes on a Bank's net
income) are at any time imposed on any payments under or in respect of
this Agreement or any instrument or agreement required hereunder,
including payments made pursuant to this Section 3.1, the Company shall
pay all such taxes and shall also pay to the Administrative Agent, for
the account of the applicable Bank, at the time interest is paid, all
additional amounts which such Bank specifies as necessary to preserve the
yield, after payment of such taxes, that such Bank would have received
if such taxes had not been imposed.
3.2 Illegality.
(a) If any Bank determines that (i) the introduction of
any Requirement of Law, or any change in any Requirement of Law or
in the interpretation or administration thereof, has made it
unlawful, or (ii) any central bank or other Governmental Authority
has asserted that it is unlawful, for such Bank or its applicable
Lending Office to make LIBOR Rate Loans, then, on notice thereof by
such Bank to the Company and the Administrative Agent, the
obligation of such Bank to make LIBOR Rate Loans shall be suspended
until such Bank shall have notified the Company and the
Administrative Agent that the circumstances giving rise to such
determination no longer exist.
(b) If any Bank determines that it is unlawful to
maintain any LIBOR Rate Loan, the Company shall, upon its receipt
of notice of such fact and demand from such Bank (with a copy to the
Administrative Agent), prepay in full all LIBOR Rate Loans of that
Bank then outstanding, together with interest accrued thereon and
any amounts required to be paid in connection therewith pursuant to
Section 3.4, either on the last day of the Interest Period thereof,
if such Bank may lawfully continue to maintain such LIBOR Rate Loans
to such day, or immediately, if such Bank may not lawfully continue
to maintain such LIBOR Rate Loans.
(c) Notwithstanding any contrary provision of
Section 2.1, if the Company is required to prepay any LIBOR Rate
Loan immediately as provided in subsection 3.2(b), then concurrently
with such prepayment the Company shall borrow a Reference Rate Loan
from the affected Bank in the amount of such repayment.
(d) If the obligation of any Bank to make or maintain
LIBOR Rate Loans has been terminated, the Company may elect, by
giving notice to such Bank through the Administrative Agent, that
all Loans which would otherwise be made by such Bank as LIBOR Rate
Loans shall instead be Reference Rate Loans.
(e) Before giving any notice to the Administrative
Agent or the Company pursuant to this Section 3.2, the affected Bank
shall designate a different Lending Office with respect to its LIBOR
Rate Loans if such designation would avoid the need for giving such
notice or making such demand and would not, in the judgment of such
Bank, be illegal or otherwise disadvantageous to such Bank.
3.3 Increased Costs and Reduction of Return.
(a) If any Bank determines that, due to either (i) the
introduction of, or any change (other than a change by way of
imposition of, or increase in, reserve requirements included in the
Reserve Percentage) in or in the interpretation of, any law or
regulation or (ii) the compliance by such Bank (or its Lending
Office) or any Corporation controlling such Bank with any guideline
or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any
increase in the cost to such Bank of agreeing to make or making,
funding or maintaining any LIBOR Rate Loans, then the Company shall
be liable for, and shall from time to time, upon demand therefor by
such Bank with a copy to the Administrative Agent, pay to the
Administrative Agent for the account of such Bank such additional
amounts as are sufficient to compensate such Bank for such increased
costs.
(b) If any Bank determines that (i) the introduction of
any Capital Adequacy Regulation, (ii) any change in any Capital
Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central
bank or other Governmental Authority charged with the interpretation
or administration thereof, or (iv) compliance by such Bank (or its
Lending Office), or any corporation controlling such Bank, with any
Capital Adequacy Regulation affects or would affect the amount of
capital that such Bank or any corporation controlling such Bank is
required or expected to maintain, and such Bank (taking into
consideration such Bank's or such corporation's policies with
respect to capital adequacy and such Bank's desired return on
capital) determines that the amount of such capital is increased as
a consequence of any of its loans, credits or obligations under this
Agreement, then, upon demand of such Bank to the Company through the
Administrative Agent, the Company shall immediately pay to the
Administrative Agent, for the account of such Bank, from time to
time as specified by such Bank, additional amounts sufficient to
compensate such Bank for such increase.
3.4 Funding Losses. The Company agrees to pay to the
Administrative Agent, from time to time, for the account of the Banks,
any amount that would be necessary to reimburse the Banks for, and to
hold the Banks harmless from, any loss or expense which the Banks may
sustain or incur as a consequence of:
(a) the failure of the Company to make any payment or
prepayment of principal of any LIBOR Rate Loan (including payments
made after any acceleration thereof);
(b) the failure of the Company to borrow, continue or
convert a Loan after the Company has given (or is deemed to have
given) a Borrowing Notice or a Conversion/Continuation Notice;
(c) the failure of the Company to make any prepayment
after the Company has given a notice in accordance with Section 2.6;
(d) the prepayment (including pursuant to
Section 2.6.2) of a LIBOR Rate Loan on a day which is not the last
day of the Interest Period with respect thereto;
(e) the conversion pursuant to subsection 2.4 of any
LIBOR Rate Loan to a Reference Rate Loan on a day that is not the
last day of the respective Interest Period;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained to maintain the LIBOR Rate Loans hereunder
or from fees payable to terminate the deposits from which such funds were
obtained. Solely for purposes of calculating amounts payable by the
Company to the Administrative Agent, for the account of the Banks, under
this Section 3.4, each LIBOR Rate Loan (and each related reserve, special
deposit or similar requirement) shall be conclusively deemed to have been
funded at the LIBOR used in determining the LIBOR Rate for such LIBOR
Rate Loan by a matching deposit or other borrowing in the applicable
offshore dollar interbank market for a comparable amount and for a
comparable period, whether or not such LIBOR Rate Loan is in fact so
funded.
3.5 Inability to Determine Rates. If any Bank determines
that for any reason adequate and reasonable means do not exist for
ascertaining the LIBOR Rate for any requested Interest Period with
respect to a proposed LIBOR Rate Loan or that the LIBOR Rate applicable
pursuant to subsection 2.8.1 for any requested Interest Period with
respect to a proposed LIBOR Rate Loan does not adequately and fairly
reflect the cost to such Bank of funding such Loan, such Bank will
forthwith give notice of such determination to the Company through the
Administrative Agent. Thereafter, the obligation of such Bank to make
or maintain LIBOR Rate Loans hereunder shall be suspended until such Bank
revokes such notice in writing. Upon receipt of such notice, the Company
may revoke any Borrowing Notice or Conversion/Continuation Notice then
submitted by it. If the Company does not revoke such notice, the
affected Bank shall make, convert or continue the Loans, as proposed by
the Company, in the amount specified in the applicable notice submitted
by the Company, but such Loans shall be made, converted or continued as
Reference Rate Loans instead of LIBOR Rate Loans.
3.6 Certificate of Bank. Any Bank, if claiming reimbursement
or compensation pursuant to this Article 3, shall deliver to the Company
through the Administrative Agent a certificate setting forth in
reasonable detail the amount payable to such Bank hereunder, and such
certificate shall be conclusive and binding on the Company in the absence
of manifest error.
3.7 Survival. The agreements and obligations of the Company
in this Article 3 shall survive the payment and performance of all other
Obligations.
4. Conditions Precedent.
4.1 Conditions to Approving Parcels. Subject to the
provisions of Section 10.18, a Parcel shall be considered an Approved
Parcel for purposes of this Agreement upon satisfaction of all of the
following conditions precedent:
4.1.1 Fee Ownership. Except for the Parcel located in
King County, Washington subleased by the Company from The Quadrant
Corporation, the Company or a wholly-owned Subsidiary of the Company owns
fee title to such Parcel; provided, however, that notwithstanding its
satisfaction of all of the conditions set forth in this Section 4.1, no
Parcel owned by a Permitted Partnership shall become an Approved Parcel
if it would cause the aggregate Approved Parcel Values of all of the
Approved Parcels owned by Permitted Partnerships to exceed ten percent
(10%) of the Total Approved Parcel Value at such time.
4.1.2 Satisfactory Parcel. Such Parcel is satisfactory
to Majority Banks in their sole and absolute discretion.
4.1.3 No Hazardous Materials. Such Parcel is free from
all Hazardous Materials, including asbestos, other than commercially
reasonable quantities of Hazardous Materials typically used in properties
similar to such Parcel and permitted by all applicable Environmental
Laws, and the Administrative Agent shall have received evidence in form
and substance satisfactory to all of the Banks of such Parcel's
compliance with this condition.
4.1.4 Appraised Value. An Appraised Value shall have
been established for such Parcel.
4.1.5 No Liens. Such Parcel and all related personal
property is (or at the time a Mortgage is recorded against such Parcel
it shall be) free and clear of all Liens other than Liens securing
nondelinquent taxes or assessments.
4.1.6 Deliveries to the Administrative Agent. The
Administrative Agent shall have received each of the following in form
and substance satisfactory to the Administrative Agent:
(1) a current ALTA survey of such Parcel and
Surveyor's Certification, including a complete legal description;
(2) copies of all exceptions to title with respect
to such Parcel;
(3) at the Administrative Agent's request, copies
of any available plans and specifications for any improvements
located on such Parcel;
(4) an environmental site assessment for such
Parcel, dated as of a recent date, prepared by a qualified firm
acceptable to the Administrative Agent, stating, among other things,
that such Parcel is free from Hazardous Materials other than
commercially reasonable quantities of Hazardous Materials typically
used in properties similar to such Parcel, and that any such
Hazardous Materials located thereon and all operations conducted
thereon are in compliance with all Environmental Laws and showing
any Estimated Remediation Costs;
(5) at the Administrative Agent's request, copies
of all leases and contracts not cancelable on thirty (30) days'
notice and a rent roll relating to all or any portion of such
Parcel;
(6) At the Administrative Agent's request,
financial statements for any Major Tenant that are available to the
Company;
(7) an operating report for such Parcel for not
less than the four (4) most recent consecutive quarters, together
with a projection of the operating results for such Parcel for the
following twelve (12) months;
(8) a certificate concerning the amount of space
at such Parcel devoted to office, industrial, research and
development (other than office) and flexible industrial (other than
research and development or warehouse) uses signed by the Company
and, if such Parcel is owned by a Person other than the Company,
such other Person, substantially in the form of Exhibit D;
(9) at the Administrative Agent's request, a cost
budget for any anticipated renovation of such Parcel;
(10) if such Parcel is owned by a Person other than
the Company, copies of all of such Person's Organization Documents;
(11) a duly executed Mortgage, financing
statement(s) and assignment of contracts covering such Parcel;
(12) such certificates relating to the authority
of the Persons signing the documents required under
Section 4.1.6(11) as the Administrative Agent may reasonably
request;
(13) at the Administrative Agent's request, a
written opinion of counsel to the Company and the Person signing the
documents required under Section 4.1.6(11) practicing in the
jurisdiction in which such Parcel is located (which counsel shall
be acceptable to the Administrative Agent) covering such matters
relating to the Company, such other Person, the Loans and such
Parcel as the Administrative Agent may require;
(14) estoppel certificates executed by each tenant
whose lease covers at least fifteen percent (15%) of the net
rentable area of the improvements located on such Parcel; and
estoppel certificates and/or subordination, nondisturbance and
attornment agreements executed by such additional tenants as the
Administrative Agent, by written notice to the Company prior to the
recording of the Mortgage encumbering such Parcel, may require;
(15) such consents, subordination agreements and
other documents and instruments executed by tenants and other
Persons party to material contracts relating to such Parcel as the
Administrative Agent may request;
(16) certificates of insurance and loss payable
endorsements for all policies required pursuant to Section 6.6,
showing the same to be in full force and effect with respect to such
Parcel; and
(17) all other documents reasonably required by the
Administrative Agent.
4.1.7 Recording of the Mortgage. The Mortgage relating
to such Parcel shall have been duly recorded in the official records of
the jurisdiction in which such Parcel is located.
4.1.8 Title Insurance. The Company shall, at its sole
expense, have delivered to the Administrative Agent an ALTA form extended
coverage lender's policy of title insurance, or evidence of a commitment
therefor satisfactory to the Administrative Agent, in form, substance and
amount, and issued by one or more insurers, reasonably satisfactory to
the Administrative Agent, together with all indorsements and binders
thereto reasonably required by the Administrative Agent, naming the
Administrative Agent as the insured, insuring the Mortgage relating to
such Parcel to be a valid first priority lien upon such Parcel, and
showing such Parcel subject only to such Mortgage and the Permitted
Encumbrances.
4.1.9 Filing of Financing Statements. Financing
statement(s) shall have been filed with all of the officials necessary,
in the Administrative Agent's sole judgment, to perfect the security
interests created by the Mortgage relating to such Parcel and all related
personal property.
4.1.10 Perfection of Liens. The Administrative Agent
shall have received satisfactory evidence that all other actions
necessary, or in the Administrative Agent's sole judgment desirable, to
perfect and protect the first priority security interests for the benefit
of the Administrative Agent created by the Collateral Documents have been
taken.
4.1.11 Tax Reporting Service. The Company shall, at
its sole expense, have delivered to the Administrative Agent evidence of
a contract with a property tax reporting service for such Parcel for a
period of not less than two (2) years.
4.1.12 Costs. The Company shall have paid to the
Administrative Agent all amounts payable pursuant to Section 10.4 in
connection with such Parcel and the Mortgage relating to such Parcel.
4.1.13 Expenses. The Administrative Agent shall have
received satisfactory evidence that the Company has paid all title
insurance premiums, tax service charges, documentary stamp or intangible
taxes, recording fees and mortgage taxes payable in connection with such
Parcel, the recording of the Mortgage relating to such Parcel or the
issuance of the Title Policy (whether due on the recording date of the
Mortgage or in the future) including sums due in connection with any
future advances.
4.2 Conditions of Initial Loan. The obligation of the Banks
to make the initial Loan after the Closing Date is subject to the
satisfaction of all of the following conditions precedent:
4.2.1 Deliveries to the Administrative Agent. The
Administrative Agent shall have received, on or before the Closing Date,
all of the following in form and substance satisfactory to the
Administrative Agent and its counsel:
(a) this Agreement, the Revolving Notes and the
Environmental Indemnity executed by the Company;
(b) copies of the resolutions of the board of directors
of the Company approving and authorizing the execution, delivery and
performance by the Company of this Agreement, the other Loan
Documents to be delivered hereunder, and the Environmental
Indemnity, and authorizing the borrowing of the Loans, certified as
of the Closing Date by the Secretary or an Assistant Secretary of
the Company;
(c) a certificate of the Secretary or Assistant
Secretary of the Company certifying the names and true signatures
of the officers of the Company authorized to execute and deliver,
as applicable, this Agreement, all other Loan Documents to be
delivered hereunder, and the Environmental Indemnity;
(d) the articles or certificate of incorporation of the
Company as in effect on the Closing Date, certified by the Secretary
of State of the state of incorporation of the Company as of a recent
date and by the Secretary or Assistant Secretary of the Company as
of the Closing Date; and
(e) a good standing certificate for the Company from
the Secretary of State of (i) its state of incorporation and (ii)
each state in which an Approved Parcel is situated, evidencing that
the Company is qualified to do business as a foreign corporation in
said state as of a recent date, together with bringdown certificates
by telex or telefacsimile dated the Closing Date;
(f) an opinion of counsel to the Company acceptable to
the Administrative Agent, addressed to the Administrative Agent,
substantially in the form of Exhibit E;
(g) a certificate signed by a Responsible Officer,
dated as of the Closing Date, stating that (i) the representations
and warranties contained in Article 5 are true and correct on and
as of such date, as though made on and as of such date; (ii) no
Default or Event of Default exists or would result from the initial
Loan; and (iii) there has occurred since September 30, 1998, no
event or circumstance that could reasonably be expected to result
in a Material Adverse Effect;
(h) a certified copy of financial statements of the
Company and its Subsidiaries referred to in Section 5.11; and
(i) such other approvals, opinions or documents as the
Administrative Agent may request.
4.2.2 Initial Approved Parcel. All of the conditions
of Section 4.1 shall have been satisfied for each Parcel described in
Section 10.18.
4.2.3 Payment of Expenses. The Company shall have paid
all costs, accrued and unpaid fees and expenses incurred by the
Administrative Agent, to the extent then due and payable, on the Closing
Date, including Attorney Costs incurred by the Administrative Agent, to
the extent invoiced prior to or on the Closing Date, together with such
additional amounts of Attorney Costs as shall constitute a reasonable
estimate of Attorney Costs incurred or to be incurred through the closing
proceedings, provided that such estimate shall not thereafter preclude
final settling of accounts between the Company and the Administrative
Agent, including any such costs, fees and expenses arising under or
referenced in Section 10.4.
4.2.4 Payment of Fees. The Company shall have paid to
the Administrative Agent, for the account of the Banks, the commitment
fee owing pursuant to Section 2.9.
4.3 Conditions to All Borrowings. The obligation of the
Banks to make any Loan (including the initial Loan) is subject to the
satisfaction of all of the following conditions precedent on the relevant
borrowing date:
4.3.1 Initial Approved Parcel. At least one (1) Parcel
shall have become an Approved Parcel by satisfying all of the conditions
of Section 4.1.
4.3.2 Notice of Borrowing. The Administrative Agent
shall have received a Borrowing Notice.
4.3.3 Continuation of Representations and Warranties.
The representations and warranties made by the Company contained in
Article 5 shall be true and correct on and as of such borrowing date with
the same effect as if made on and as of such borrowing date (except to
the extent such representations and warranties expressly refer to an
earlier date, in which case they shall be true and correct as of such
earlier date).
4.3.4 No Existing Default. No Default or Event of
Default shall exist or shall result from such Loan.
4.3.5 No Future Advance Notice. The Administrative
Agent shall not have received from the Company any notice that any
Collateral Document will no longer secure future advances or future Loans
to be made or extended under this Agreement.
4.3.6 Further Assurances. The Company shall have
executed and acknowledged (or caused to be executed and acknowledged) and
delivered to the Administrative Agent all documents and taken all
actions, reasonably required by the Administrative Agent or the Banks
from time to time to confirm the rights created or now or hereafter
intended to be created by the Loan Documents or the Environmental
Indemnity, or otherwise to carry out the purposes of the Loan Documents
and the transactions contemplated thereunder.
4.3.7 Title Insurance. The Administrative Agent shall
have received, in form and substance satisfactory to the Banks, from any
title insurer who issued a Title Policy, all indorsements, binders and
modifications to such policy or policies reasonably required by the
Banks.
Each Borrowing Notice submitted by the Company hereunder shall constitute
a representation and warranty by the Company hereunder, as of the date
of each such Borrowing Notice and as of the date of each Loan, that the
conditions in Section 4.3 are satisfied.
5. Representations and Warranties. The Company represents and
warrants to the Administrative Agent and each of the Banks that:
5.1 Existence and Power. The Company and each of its
Subsidiaries (a) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation;
and (b) is duly qualified as a foreign corporation, licensed and in good
standing under the laws of each jurisdiction where its ownership, lease
or operation of property or the conduct of its business requires such
qualification. Each Permitted Partnership (c) is a limited partnership
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its creation; and (d) is duly qualified as a foreign
limited partnership, licensed and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification. The Company, each
of its Subsidiaries and each Permitted Partnership (e) has the power and
authority, and has obtained all governmental licenses, and all
authorizations, consents and approvals needed, to own its assets, to
carry on its business and to execute, deliver and perform its obligations
under the Loan Documents to which it is a party and the Environmental
Indemnity; and (f) is in compliance with all Requirements of Law; except,
in each case referred to in clause (b), clause (d) or clause (f), to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
5.2 Corporate Authorization; No Contravention. The
execution, delivery and performance by the Company of this Agreement, any
other Loan Document and the Environmental Indemnity have been duly
authorized by all necessary corporate action, and do not and will not:
(a) contravene the terms of any of the Company's
Organization Documents;
(b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any Contractual
Obligation to which the Company is a party or any order, injunction,
writ or decree of any Governmental Authority to which the Company
or its Property is subject; or
(c) violate any Requirement of Law.
5.3 Governmental Authorization. No approval, consent,
exemption, authorization or other action by, or notice to or filing with,
any Governmental Authority (except for recordings or filings in
connection with the Liens granted to the Administrative Agent under the
Collateral Documents) is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the
Company of this Agreement, any other Loan Document to which the Company
is a party, or the Environmental Indemnity.
5.4 Binding Effect. This Agreement, each other Loan Document
and the Environmental Indemnity constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
5.5 Litigation. Except as specifically disclosed in Schedule
5.5, there are no actions, suits, proceedings, claims or disputes
pending, or to the best knowledge of the Company threatened or
contemplated, at law, in equity, in arbitration or before any
Governmental Authority, against the Company, any of its Subsidiaries or
any Permitted Partnership, or any of their respective Properties, which
(a) purport to affect or pertain to this Agreement, any other Loan
Document or the Environmental Indemnity, or any of the transactions
contemplated hereby or thereby, or (b) if determined adversely to the
Company, one or more of its Subsidiaries or one or more Permitted
Partnerships would reasonably be expected to have a Material Adverse
Effect. No injunction, writ, temporary restraining order or any order
of any nature has been issued by any court or other Governmental
Authority purporting to enjoin or restrain the execution, delivery or
performance of this Agreement, any other Loan Document or the
Environmental Indemnity, or directing that the transactions provided for
herein or therein not be consummated as herein or therein provided.
5.6 No Default. No Default or Event of Default exists or
would result from the incurring of any Obligations by the Company.
Neither the Company nor any of its Subsidiaries nor any Permitted
Partnership is in default under or with respect to any Contractual
Obligation in any respect which, individually or together with all such
defaults, could reasonably be expected to have a Material Adverse Effect.
5.7 ERISA Compliance. Each Plan and Multi-employer Plan is
in full compliance with applicable Requirements of Law, including ERISA,
and no ERISA Events or accumulated funding deficiencies within the
meaning of ERISA have occurred with respect to any Qualified Plan or
Multi-employer Plan that, in the aggregate, could result in a Material
Adverse Effect.
5.8 Use of Proceeds; Margin Regulations. The proceeds of the
Loans are intended to be and shall be used solely for the purposes set
forth in and permitted by Section 6.11, and are intended to be and shall
be used in compliance with Section 7.6.
5.9 Title to Properties. The Company, each of its
Subsidiaries and each Permitted Partnership has good record and
marketable title in fee simple to all real Property necessary or used in
the ordinary conduct of its business, except for such defects in title
as could not, individually or in the aggregate, have a Material Adverse
Effect. As of the Closing Date, the Property of the Company, its
Subsidiaries and each Permitted Partnership is subject to no Liens that
are not disclosed in the most recent financial statements delivered to
the Administrative Agent other than Permitted Liens and, with respect to
a Property that does not serve as Collateral for any of the Obligations
(i) Liens securing the performance of obligations under recorded
covenants, conditions and restrictions, easements or other agreements
among adjoining landowners, and (ii) Liens securing purchase money
financing of fixtures and equipment, or securing other indebtedness that
in the aggregate does not exceed $100,000.
5.10 Taxes. The Company, its Subsidiaries and each Permitted
Partnership have filed all federal and other material tax returns and
reports required to be filed, and have paid all federal and other
material taxes, assessments, fees and other governmental charges levied
or imposed upon them or their Properties, income or assets otherwise due
and payable, except those which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP, and no Notice of Lien has been filed
or recorded. There is no proposed tax assessment against the Company, any
of its Subsidiaries or any Permitted Partnership that would, if the
assessment were made, have a Material Adverse Effect.
5.11 Financial Condition.
(a) The audited consolidated financial statements of
the Company dated December 31, 1997, the related consolidated
statements of operations, shareholders' equity and cash flows for
the quarter ended on that date, and the quarterly consolidated
financial statements of the Company dated September 30, 1998:
(i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise
expressly noted therein;
(ii) are complete, accurate and fairly present the financial
condition of the Company and its consolidated subsidiaries as of the date
thereof and results of operations for the period covered thereby; and
(iii) except as specifically disclosed in Schedule 5.11,
show all material Indebtedness and other liabilities, direct or
contingent, of the Company and its consolidated subsidiaries as of the
dates thereof, including liabilities for taxes, material commitments and
Contingent Obligations.
(b) Since December 31, 1997, there has been no Material
Adverse Effect.
(c) The letter dated February 19, 1999, from Xxxxxx
Xxxxxxx of the Company to Xxxxxxxx X. Xxxxxx of the Administrative
Agent attached a true and complete copy of the signed letter of
terms and conditions dated February 19, 1999, from Xxxxxx Fair, Jr.
of Teachers Insurance and Annuity Association ("TIAA") to Xxxxxx
Xxxxxxx of the Company relating to TIAA's proposed financing of
three (3) separate portfolios of the Company's properties.
5.12 Environmental Matters.
(a) Except as specifically disclosed in Schedule 5.12,
to the best knowledge of the Company the on-going operations of the
Company, each of its Subsidiaries and each Permitted Partnership
comply in all respects with all Environmental Laws, except such
non-compliance which would not (if enforced in accordance with
applicable law) result in liability in excess of $50,000 in the
aggregate.
(b) Except as specifically disclosed in Schedule 5.12,
the Company, each of its Subsidiaries and each Permitted Partnership
has obtained all licenses, permits, authorizations and registrations
required under any Environmental Law ("Environmental Permits") and
necessary for its ordinary course operations, all such Environmental
Permits are in good standing, and the Company and each of its
Subsidiaries is in compliance with all material terms and conditions
of such Environmental Permits.
(c) Except as specifically disclosed in Schedule 5.12,
none of the Company, any of its Subsidiaries, any Permitted
Partnership or any of their respective present Property or
operations is subject to any outstanding written order from, or
agreement with, any Governmental Authority, or subject to any
judicial or docketed administrative proceeding, respecting any
Environmental Law, Environmental Claim or Hazardous Material.
(d) Except as specifically disclosed in Schedule 5.12,
to the best knowledge of the Company there are no Hazardous
Materials or other conditions or circumstances existing with respect
to any Parcel, or arising from operations of the Company, any of its
Subsidiaries or any Permitted Partnership prior to the Closing Date,
that would reasonably be expected to give rise to Environmental
Claims with a potential liability of the Company and its
Subsidiaries in excess of $50,000 in the aggregate for any such
condition, circumstance or Parcel. In addition, (i) neither the
Company nor any of its Subsidiaries nor any Permitted Partnership
has any underground storage tanks (x) that are not properly
registered or permitted under applicable Environmental Laws, or (y)
that are leaking or disposing of Hazardous Materials off-site, and
(ii) the Company, its Subsidiaries and each Permitted Partnership
have notified all of their employees of the existence, if any, of
any health hazard arising from the conditions of their employment
and have met all notification requirements under Title III of CERCLA
and all other Environmental Laws.
5.13 Regulated Entities. Neither the Company nor any Person
controlling the Company is (a) an "Investment Company" within the meaning
of the Investment Company Act of 1940; or (b) subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act,
the Interstate Commerce Act, any state public utilities code, or any
other federal or state statute or regulation limiting its ability to
incur Indebtedness.
5.14 No Burdensome Restrictions. The Company is not a party
to, or bound by, any Contractual Obligation, or subject to any charter
or corporate restriction or any Requirement of Law, which could
reasonably be expected to have a Material Adverse Effect.
5.15 Solvency. The Company is Solvent, each of its
Subsidiaries is Solvent and each Permitted Partnership is Solvent.
5.16 Subsidiaries; Equity Investments. As of the Closing
Date, the Company has no Subsidiaries other than those specifically
disclosed in part (a) of Schedule 5.16, and has no equity investments in
any (i) Permitted Partnership other than those specifically disclosed in
part (b) of Schedule 5.16 or (ii) other corporation, partnership or other
entity other than those specifically disclosed in part (c) of Schedule
5.16.
5.17 Brokers; Transaction Fees. Neither the Company nor any
of its Subsidiaries has any obligation to any Person in respect of any
finder's, broker's or investment banker's fee in connection with the
transactions contemplated hereby.
5.18 Insurance. The Properties of the Company, its
Subsidiaries and each Permitted Partnership are insured with financially
sound and reputable insurance companies in such amounts, with such
deductibles and covering such risks as are customarily carried by
companies engaged in similar businesses and owning similar Properties in
localities where the Company, such Subsidiary or such Permitted
Partnership operates.
5.19 Full Disclosure. None of the representations or
warranties made by the Company or any of its Subsidiaries in the Loan
Documents or the Environmental Indemnity, as of the date such
representations and warranties are made or deemed made, and none of the
statements contained in any exhibit, report, statement or certificate
furnished by or on behalf of the Company or any of its Subsidiaries in
connection with the Loan Documents, contains any untrue statement of a
material fact or omits any material fact required to be stated therein
or necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading.
5.20 Year 2000 Compliance. The Company has developed and
budgeted for a comprehensive program to address the "Year 2000" problem
(that is, the inability of computers, as well as embedded microchips in
non-computing devices, to perform properly date-sensitive functions with
respect to certain dates prior to and after December 31, 1999). The
Company has implemented that program substantially in accordance with its
timetable and budget and reasonably anticipates that it will
substantially avoid the Year 2000 problem as to all computers, as well
as embedded microchips in non-computing devices, that are material to the
Company's business, properties or operations. The Company has developed
feasible contingency plans adequate to ensure uninterrupted and
unimpaired business operation in the event of failure of its own or a
third party's systems or equipment due to the Year 2000 problem,
including those of vendors, customers and suppliers, as well as a general
failure of or interruption in its communications and delivery
infrastructure.
6. Affirmative Covenants. The Company covenants and agrees that,
so long as any Bank shall have any obligation hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the
Administrative Agent, on behalf of the Majority Banks, waives compliance
in writing:
6.1 Financial Statements. The Company shall deliver to each
of the Banks, in form and detail satisfactory to the Administrative
Agent:
(a) as soon as publicly available, but not later than
120 days after the end of each calendar year, a copy of the audited
consolidated balance sheets of the Company and each unconsolidated
Permitted Partnership as at the end of such year and the related
consolidated statements of income, shareholders' equity and cash
flows for such calendar year, setting forth in each case in
comparative form the figures for the previous year, and accompanied
by the opinion of a nationally recognized independent public
accounting firm stating that such consolidated financial statements
present fairly the financial positions of the Company and such
Permitted Partnerships for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years;
(b) as soon as publicly available, but not later than
60 days after the end of each of the first three (3) calendar
quarters of each year, a copy of the unaudited consolidated balance
sheets of the Company and each unconsolidated Permitted Partnership
as of the end of such quarter and the related consolidated
statements of income, shareholders' equity and cash flows for the
period commencing on the first day and ending on the last day of
such quarter, certified by an appropriate Responsible Officer as
being complete and correct and fairly presenting the financial
position and results of operations of the Company and such Permitted
Partnerships in accordance with GAAP;
(c) as soon as available, but not later than 45 days
after the end of each calendar quarter of each year, operating
statements and rent rolls for each Property securing the Loans,
certified by an appropriate Responsible Officer as being complete
and correct and fairly presenting the financial position and the
results of operations of the Approved Parcel to which it relates,
together with any additional information relating to any such
Property reasonably requested by the Administrative Agent;
(d) as soon as available, but not later than 120 days
after the end of each calendar year, rolling two-year consolidated
cash flow projections for the Company and each unconsolidated
Permitted Partnership, certified by an appropriate Responsible
Officer of the Company as being complete and correct in all material
respects; and
(e) not later than 45 days after the end of each
calendar quarter of each year, a report in form and substance
satisfactory to the Administrative Agent concerning the status of
all development activity of the Company, each of its Subsidiaries
and each Permitted Partnership, certified by an appropriate
Responsible Officer of the Company as being complete and correct in
all material respects.
6.2 Certificates; Other Information. The Company shall
furnish to the Administrative Agent, with sufficient copies for each
Bank:
(a) concurrently with the delivery of the financial
statements referred to in subsections 6.1(a) and (b) above, a
certificate of a Responsible Officer in form and detail
substantially similar to the certificate delivered to the
Administrative Agent for the period ending March 31, 1998 (with the
Leverage and Total Approved Parcel Value calculations required by
clause (iii), below, added), (i) stating that, to the best of such
officer's knowledge, the Company, during such period, has observed
and performed all of its covenants and other agreements, and
satisfied every condition contained in this Agreement to be
observed, performed or satisfied by it, and that such officer has
obtained no knowledge of any Default or Event of Default except as
specified (by applicable subsection reference) in such certificate,
(ii) showing in detail the calculations supporting such statement
in respect of Sections 2.6.2(a), 7.10, 7.11, 7.14, 7.15, 7.16 and
7.17, and (iii) showing in detail the calculations supporting the
calculations of Leverage and Total Approved Parcel Value;
(b) promptly after the same are sent, copies of all
financial statements and reports which the Company sends to its
shareholders; and promptly after the same are filed (but in the case
of the Company's (i) Form 10-K filing, in no event later than 120
days after the end of the calendar year to which it relates, and
(ii) Form 10-Q filing, in no event later than 60 days after the end
of the calendar quarter to which it relates), copies of all
financial statements and regular, periodical or special reports
which the Company may make to, or file with, the SEC or any
successor or similar Governmental Authority; and
(c) promptly, such additional business, financial,
corporate affairs and other information as the Administrative Agent
may from time to time reasonably request.
6.3 Notices. The Company shall promptly notify the
Administrative Agent:
(a) upon, but in no event later than ten (10) days
after, becoming aware of (i) the occurrence of any Default or Event
of Default, and (ii) the occurrence or existence of any event or
circumstance that foreseeable will become a Default or Event of
Default;
(b) of (i) any breach or non-performance of, or any
default under, any Contractual Obligation of the Company, any of its
Subsidiaries or any Permitted Partnership which could result in a
Material Adverse Effect; and (ii) any dispute, litigation,
investigation, proceeding or suspension which may exist at any time
between the Company or any of its Subsidiaries or any Permitted
Partnership and any Governmental Authority;
(c) of the commencement of, or any material development
in, any litigation or proceeding affecting the Company, any
Subsidiary of the Company or any Permitted Partnership (i) in which
the amount of damages claimed is $500,000 or more, (ii) in which
injunctive or similar relief is sought and which, if adversely
determined, would reasonably be expected to have a Material Adverse
Effect, or (iii) in which the relief sought is an injunction or
other stay of the performance of this Agreement, any Loan Document
or the Environmental Indemnity;
(d) upon, but in no event later than ten (10) days
after, becoming aware of (i) any and all enforcement, cleanup,
removal or other governmental or regulatory actions instituted,
completed or threatened against the Company, any Subsidiary of the
Company or any Permitted Partnership or any of their respective
Properties pursuant to any applicable Environmental Laws, (ii) all
other Environmental Claims, and (iii) any environmental or similar
condition on any real property adjoining or in the vicinity of any
real Property of the Company, any Subsidiary of the Company or any
Permitted Partnership that could reasonably be anticipated to cause
such Property or any part thereof to be subject to any restrictions
on the ownership, occupancy, transferability or use of such Property
under any Environmental Laws;
(e) of any of the following ERISA events affecting the
Company or any member of its Controlled Group (but in no event more
than ten (10) days after such event), together with a copy of any
notice with respect to such event that may be required to be filed
with a Governmental Authority and any notice delivered by a
Governmental Authority to the Company or any member or its
Controlled Group with respect to such event:
(i) an ERISA Event;
(ii) the adoption of any new Plan that is subject to Title IV
of ERISA or section 412 of the Code by any member of the Controlled
Group;
(iii) the adoption of any amendment to a Plan that is
subject to Title IV of ERISA or section 412 of the Code, if such
amendment results in a material increase in benefits or Unfunded Pension
Liabilities; or
(iv) the commencement of contributions by any member of the
Controlled Group to any Plan that is subject to Title IV of ERISA or
section 412 of the Code;
(f) any Material Adverse Effect subsequent to the date
of the most recent audited financial statements of the Company
delivered to the Administrative Agent pursuant to subsection 6.1(a);
(g) of any change in accounting policies or financial
reporting practices by the Company, any of its Subsidiaries or any
Permitted Partnership within ten (10) days of their adoption; and
(h) of any notice of redemption given with respect to
any or all of the Company's preferred shares, within ten (10) days
of the date of such notice.
Each notice pursuant to this Section shall be accompanied by a written
statement by a Responsible Officer of the Company setting forth details
of the occurrence referred to therein, and stating what action the
Company proposes to take with respect thereto and at what time. Each
notice under subsection 6.3(a) shall describe with particularity any and
all clauses or provisions of this Agreement or other Loan Document that
have been breached or violated.
6.4 Preservation of Corporate Existence, Etc. Subject to the
provisions of Section 7.2, the Company shall, and shall cause each of its
Subsidiaries and each Permitted Partnership to:
(a) preserve and maintain in full force and effect its
corporate or partnership existence and good standing under the laws
of its state or jurisdiction of incorporation;
(b) preserve and maintain in full force and effect all
rights, privileges, qualifications, permits, licenses and franchises
necessary or desirable in the normal conduct of its business;
(c) use its reasonable efforts, in the Ordinary Course
of Business, to preserve its business organization; and
(d) in the case of each Permitted Partnership, preserve
and maintain in full force and effect, without amendment or
modification, such Permitted Partnership's agreement of limited
partnership and certificate of limited partnership, and otherwise
at all times continue to satisfy all of the requirements set forth
in the definition of the term "Permitted Partnership".
6.5 Maintenance of Property. The Company shall maintain, and
shall cause each of its Subsidiaries and each Permitted Partnership to
maintain, and preserve all of its Property which is used or useful in its
business in good working order and condition, ordinary wear and tear
excepted and make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
6.6 Insurance. In addition to insurance requirements set
forth in the Collateral Documents, the Company shall maintain, and shall
cause each of its Subsidiaries and each Permitted Partnership to
maintain, with financially sound and reputable independent insurers,
insurance with respect to its Properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts as are
customarily carried under similar circumstances by such other Persons,
including workers' compensation insurance, public liability insurance,
property and casualty insurance and rental interruption insurance, the
amount of which shall not be reduced by the Company, any Subsidiary of
the Company or any Permitted Partnership in the absence of thirty (30)
days' prior notice to the Administrative Agent. All casualty insurance
covering an Approved Parcel maintained by the Company and its
Subsidiaries shall name the Administrative Agent, as administrative agent
for the Banks, as loss payee, and all liability, rental interruption and
other insurance covering an Approved Parcel maintained by the Company and
its Subsidiaries shall name the Administrative Agent, as administrative
agent for the Banks, as additional insured as its interest may appear.
Upon request of the Administrative Agent, the Company shall furnish the
Administrative Agent at reasonable intervals (but not more often than
once per calendar year) a certificate of a Responsible Officer of the
Company (and, if requested by the Administrative Agent any insurance
broker for the Company) setting forth the nature and extent of all
insurance maintained by the Company, its Subsidiaries and the Permitted
Partnership in accordance with this Section 6.6 or any Collateral
Documents (and which, in the case of a certificate of a broker, were
placed through such broker).
6.7 Payment of Obligations. The Company shall, and shall
cause its Subsidiaries and each Permitted Partnership to, pay and
discharge as the same shall become due and payable, all their respective
obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the
same are being contested in good faith by appropriate proceedings
(which proceedings have the effect of preventing the imposition of
a Lien on, or the forfeiture or sale of, any Property of the
Company, any of its Subsidiaries or any Permitted Partnership) and
adequate reserves in accordance with GAAP are being maintained by
the Company or such Subsidiary or Permitted Partnership;
(b) all lawful claims which, if unpaid, would by law
become a Lien upon its Property unless the same are being contested
in good faith by appropriate proceedings (which proceedings have the
effect of preventing the imposition of a Lien on, or the forfeiture
or sale of, any Property of the Company, any of its Subsidiaries or
any Permitted Partnership) and adequate reserves in accordance with
GAAP are being maintained by the Company or such Subsidiary or
Permitted Partnership; and
(c) all Indebtedness, as and when due and payable, but
subject to any subordination provisions contained in any instrument
or agreement evidencing such Indebtedness.
6.8 Compliance with Laws. The Company shall comply, and
shall cause each of its Subsidiaries and each Permitted Partnership to
comply, in all material respects with all Requirements of Law of any
Governmental Authority having jurisdiction over it or its business or any
of its Property, except such as may be contested in good faith or as to
which a bona fide dispute may exist.
6.9 Inspection of Property and Books and Records. The
Company shall maintain, and shall cause each of its Subsidiaries and each
Permitted Partnership to maintain, proper books of record and account in
which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving
the assets and business of the Company and such Subsidiaries and
Permitted Partnerships. The Company shall permit, and shall cause each
of its Subsidiaries and each Permitted Partnership to permit,
representatives of the Administrative Agent or any Bank to visit and
inspect any of their respective Properties, to examine their respective
corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss their respective affairs, finances
and accounts with their respective directors, officers and independent
public accountants, all at the expense of the Company (which shall
include all internal or outside legal and other consultant fees and other
out-of-pocket expenses incurred by the Administrative Agent or any of the
Banks in connection with any such inspection, but shall not include the
Administrative Agent's or any Bank's normal overhead or employee costs
of administering the Loans) and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Company; provided, however, that when an Event of
Default exists the Administrative Agent or any Bank may do any of the
foregoing at the expense of the Company at any time during normal
business hours and without advance notice. No actions by the
Administrative Agent or any Bank pursuant to this Section 6.9 shall
unreasonably interfere with (a) the performance by the Company's
employees of their duties or (b) the occupancy of any of the Company's
tenants.
6.10 Environmental Laws. The Company shall, and shall cause
each of its Subsidiaries and each Permitted Partnership to, conduct its
operations and keep and maintain its Property in compliance with all
Environmental Laws whose violation could, individually or in the
aggregate, result in liability in excess of $250,000. Upon the written
request of the Administrative Agent or any Bank, the Company shall
submit, and cause each of its Subsidiaries and each Permitted Partnership
to submit, to the Administrative Agent, with sufficient copies for each
Bank, at the Company's sole cost and expense, at reasonable intervals,
a report providing an update of the status of any environmental, health
or safety compliance, hazard or liability issue identified in any notice
or report required pursuant to subsection 6.3(d), that could,
individually or in the aggregate, result in liability in excess of
$250,000.
6.11 Use of Proceeds. Subject to the provisions of
Section 3.2(c), the Company shall use the proceeds of the Loans solely
for the purpose of (i) facilitating the Company's acquisition of improved
real property (subject to the provisions of Section 7.12), and (ii)
financing the Company's operating expenses, including development
activities (subject to the provisions of Sections 7.15 and 7.16).
6.12 Solvency. The Company shall at all times be, and shall
cause each of its Subsidiaries and each Permitted Partnership to be,
Solvent.
6.13 Further Assurances. Promptly upon request by the
Administrative Agent, the Company shall (and shall cause any of its
Subsidiaries or any Permitted Partnership to) do such further acts, and
execute, acknowledge, deliver, record, re-record, file, re-file, register
and re-register any and all deeds, conveyances, security agreements,
deeds of trust, mortgages, assignments, estoppel certificates, financing
statements and continuations thereof, termination statements, notices of
assignment, transfers, certificates, assurances and other instruments,
as the Administrative Agent may reasonably require from time to time in
order to (i) carry out more effectively the purposes of this Agreement
or any other Loan Document, (ii) subject to the Liens created by any of
the Collateral Documents any of the Properties, rights or interests
covered by any of the Collateral Documents, (iii) perfect and maintain
the validity, effectiveness and priority of any of the Collateral
Documents and the Liens intended to be created thereby, and (iv) better
assure, convey, grant, assign, transfer, preserve, protect and confirm
to the Administrative Agent and the Banks the rights granted or now or
hereafter intended to be granted to the Administrative Agent or the Banks
under any Loan Document or under any other document executed in
connection therewith.
7. Negative Covenants. The Company hereby covenants and agrees
that, so long as any Bank shall have any obligation hereunder, or any
Loan or other Obligation shall remain unpaid or unsatisfied, unless the
Administrative Agent, on behalf of the Majority Banks, waives compliance
in writing:
7.1 Limitation on Liens. The Company shall not, and shall
not suffer or permit any of its Subsidiaries or any Permitted Partnership
to, directly or indirectly, make, create, incur, assume or suffer to
exist any Lien upon or with respect to any part of the Collateral,
whether now owned or hereafter acquired, other than the following
("Permitted Liens"):
(a) any Lien created under any Loan Document;
(b) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable
without penalty, or to the extent that non-payment thereof is
permitted by Section 6.7, provided that no Notice of Lien has been
filed or recorded; or
(c) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
Ordinary Course of Business which are not delinquent or remain
payable without penalty or which are being contested in good faith
and by appropriate proceedings, which proceedings have the effect
of preventing the forfeiture or sale of the Property subject
thereto.
7.2 Consolidations and Mergers. The Company shall not, and
shall not suffer or permit any of its Subsidiaries or any Permitted
Partnership to, merge, consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except:
(a) any Subsidiary of the Company or any Permitted
Partnership may merge with (i) the Company, provided that the
Company shall be the continuing or surviving Person, or (ii) any one
or more subsidiaries of the Company, provided that (A) if any
transaction shall be between a Permitted Partnership and a
Subsidiary, the Subsidiary shall be the continuing or surviving
Person and (B) if any transaction shall be between a Subsidiary or
any Permitted Partnership and a wholly-owned Subsidiary, the
wholly-owned Subsidiary shall be the continuing or surviving Person;
and
(b) any Subsidiary of the Company or any Permitted
Partnership may sell all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Company or a wholly-owned
Subsidiary of the Company;
provided, however, that so long as the continuing or surviving Person
remains liable for all of the Company's obligations to the Banks under
the Loan Documents, the Administrative Agent and the Banks shall not
unreasonably withhold their consent to any merger or consolidation of the
Company or any of its Subsidiaries or any Permitted Partnership with or
into any other Person.
7.3 Loans and Investments. The Company shall not, and shall
not suffer or permit any of its Subsidiaries or any Permitted Partnership
to, make any advance, loan, extension of credit or capital contribution
to any Person, including any Affiliate of the Company, or enter into any
partnership, joint venture, limited liability company or similar entity
with any non-Affiliate of the Company, except for (a) advances, loans,
extensions of credit or capital contributions to Permitted Partnerships
whose assets, in the aggregate, do not exceed twenty percent (20%) of the
consolidated assets of the Company, its Subsidiaries and any Permitted
Partnerships, (b) loans to tenants for tenant improvements in a maximum
principal amount of $1,500,000 for any such loan, and (c) loans to
employees of the Company to finance their purchase of Company stock,
where such employee loans are reported on the Company's financial
statements in a manner that does not affect the Company's total assets,
total liabilities or net worth.
7.4 Limitation on Indebtedness. The Company shall not, and
shall not suffer or permit any of its Subsidiaries or any Permitted
Partnership to, create, incur, assume, suffer to exist, or otherwise
become or remain directly or indirectly liable with respect to any
unsecured Indebtedness in an aggregate principal amount in excess of
$2,500,000.00, except (a) accounts payable to trade creditors for goods
and services and current operating liabilities (not the result of the
borrowing of money) incurred in the Ordinary Course of Business of the
Company or such Subsidiary or Permitted Partnership in accordance with
customary terms and paid within the specified time, and (b) a loan from
the Banks to the Company pursuant to the Unsecured Loan Agreement.
7.5 Transactions with Affiliates. The Company shall not, and
shall not suffer or permit any of its Subsidiaries or any Permitted
Partnership to, enter into any transaction with any Affiliate of the
Company or of any such Subsidiary or Permitted Partnership, except (a)
as expressly permitted by this Agreement, or (b) in the Ordinary Course
of Business and pursuant to the reasonable requirements of the business
of the Company or such Subsidiary or Permitted Partnership; in each case
(a) and (b), upon fair and reasonable terms no less favorable to the
Company or such Subsidiary or Permitted Partnership than would obtain in
a comparable arm's-length transaction with a Person not an Affiliate of
the Company or such Subsidiary or Permitted Partnership .
7.6 Use of Proceeds. The Company shall not, and shall not
suffer or permit any of its Subsidiaries or any Permitted Partnership to,
use any portion of the Loan proceeds, directly or indirectly, (i) to
purchase or carry Margin Stock (other than shares of the Company's common
or preferred stock), (ii) to repay or otherwise refinance indebtedness
of the Company or others incurred to purchase or carry Margin Stock
(other than shares of the Company's common or preferred stock), (iii) to
extend credit for the purpose of purchasing or carrying any Margin Stock,
or (iv) to acquire any security in any transaction that is subject to
Section 13 or 14 of the Securities and Exchange Act of 1934 or any
regulations promulgated thereunder.
7.7 Contingent Obligations. The Company shall not, and shall
not suffer or permit any of its Subsidiaries or any Permitted Partnership
to, create, incur, assume or suffer to exist any Contingent Obligations
except endorsements for collection or deposit in the Ordinary Course of
Business.
7.8 Creation of Subsidiaries. The Company shall not, and
shall not suffer or permit any of its Subsidiaries or any Permitted
Partnership to, (i) form any additional Subsidiaries other than wholly-
owned Subsidiaries, or (ii) enter into any additional partnership, joint
venture or similar business arrangement with any Person except a
Permitted Partnership whose assets, when combined with the aggregate
assets of all other Permitted Partnerships, do not exceed twenty percent
(20%) of the consolidated assets of the Company and any Permitted
Partnerships.
7.9 Compliance with ERISA. The Company shall not, and
shall not suffer or permit any of its Subsidiaries to, (i) terminate any
Plan subject to Title IV of ERISA so as to result in any material (in the
opinion of the Administrative Agent) liability to the Company or any
ERISA Affiliate, (ii) permit to exist any ERISA Event, or any other event
or condition, which presents the risk of a material (in the opinion of
the Administrative Agent) liability to any member of the Controlled
Group, (iii) make a complete or partial withdrawal (within the meaning
of ERISA Section 4201) from any Multi-employer Plan so as to result in
any material (in the opinion of the Administrative Agent) liability to
the Company or any ERISA Affiliate, (iv) enter into any new Plan or
modify any existing Plan so as to increase its obligations thereunder
which could result in any material (in the opinion of the Administrative
Agent) liability to any member of the Controlled Group, or (v) permit the
present value of all nonforfeitable accrued benefits under any Plan
(using the actuarial assumptions utilized by the PBGC upon termination
of a Plan) materially (in the opinion of the Administrative Agent) to
exceed the fair market value of Plan assets allocable to such benefits,
all determined as of the most recent valuation date for each such Plan.
7.10 Debt to Gross Assets Ratio. The Company shall not at any
time permit the ratio of (a) its total consolidated liabilities
(including as liabilities the aggregate amount of all then-outstanding
but undrawn Letters of Credit, all other Contingent Obligations of the
Company and its consolidated subsidiaries, and all liabilities (including
all Contingent Obligations) of unconsolidated Permitted Partnerships) to
(b) its Gross Assets, to be greater than 0.55 at any time.
7.11 Debt Service Coverage Ratio. The Company shall not
permit the ratio of (a) its Cash Flow to (b) its Covenant Debt Service
at any time to be less than 1.50 at any time.
7.12 Change in Business. The Company shall not, and shall not
suffer or permit any of its Subsidiaries or any Permitted Partnership to,
engage in any material line of business substantially different from
those lines of business carried on by it on the date hereof.
7.13 Accounting Changes. The Company shall not, and shall not
suffer or permit any of its Subsidiaries or any Permitted Partnership to,
make any significant change in accounting treatment or reporting
practices, except as required by GAAP, or change the fiscal year of the
Company or of any of its consolidated Subsidiaries or any Permitted
Partnership.
7.14 Limitation on Dividends. The Company shall not, during
any fiscal quarter, declare or pay dividends to its shareholders
(including the holders of any of its preferred shares) in an amount that
would cause the aggregate amount of dividends paid to such shareholders
during such fiscal quarter and the three (3) immediately preceding fiscal
quarters to exceed ninety-five percent (95%) of the Company's Funds From
Operations during the four (4) consecutive fiscal quarters immediately
preceding the declaration date of any such dividend; provided, however,
that the Company may declare or pay dividends to its shareholders
(including the holders of any of its preferred shares) in any fiscal
quarter in an amount that exceeds ninety-five percent (95%) of the
Company's Funds From Operations during the fiscal quarter immediately
preceding the declaration date of such dividend only to the extent
necessary to preserve the Company's status as a real estate investment
trust for federal income tax purposes; and provided further, however,
that for the calendar quarter in which any equity offering is completed
and the next two (2) consecutive calendar quarters, the Company may pay
dividends to its shareholders that exceed, in the aggregate, the
foregoing limitations so long as (i) the portion of such dividend
payments that relate to the Company's common and preferred shares issued
and outstanding prior to such equity offering satisfy the foregoing
limitations, (ii) such dividend payments on any new issue of common stock
do not exceed the rate at which the Company pays dividends on its other
common stock and (iii) such dividend payments on any new issue of
preferred stock do not exceed the minimum amount needed to pay the
required dividend on such preferred stock.
7.15 Development Activity. The Company shall not, and shall
not permit any of its Subsidiaries or any Permitted Partnership to,
engage in real estate development activity other than projects involving
at any time aggregate acquisition, development and construction costs,
determined on a GAAP basis before depreciation, not to exceed at any
time an amount equal to twenty percent (20%) of the consolidated assets
of the Company and any Permitted Partnerships at such time; provided,
however, that no individual project shall involve at any time aggregate
acquisition, development and construction costs, determined on a GAAP
basis before depreciation, in excess of five percent (5%) of the amount
of the consolidated assets of the Company and any Permitted Partnerships.
For purposes of this Section 7.15, real estate development activity
begins when the Company, any Subsidiary or any Permitted Partnership
first incurs costs relating to a project, and ends when (i) such project
has received a certificate of occupancy or equivalent approval for the
shell and core and (ii) more than eighty percent (80%) of the net
rentable area of such project is covered by signed leases with
third-party tenants having remaining terms of three (3) years or longer.
7.16 Undeveloped Land. The Company will not, and will not
permit any of its Subsidiaries or any Permitted Partnership to, purchase
undeveloped land, whether it is excess land adjacent to a Parcel or
otherwise, that (a) is not Entitled Land, or (b) is encumbered by any
Lien (other than a Lien for the benefit of (i) the Banks to secure the
Obligations if such undeveloped land is tied to an Approved Parcel that
is encumbered with a Mortgage, or (ii) the seller of such undeveloped
land to secure a nonrecourse obligation in an amount not to exceed the
purchase price of such undeveloped land), or (c) causes the aggregate
value of undeveloped land owned by the Company, its Subsidiaries and the
Permitted Partnerships, determined on a GAAP basis, to exceed fifteen
percent (15%) of the amount of the consolidated assets of the Company and
any Permitted Partnerships.
7.17 Tangible Net Worth. The Company shall not at any time
permit its Tangible Net Worth to be less than the sum of (a) Two Hundred
Ninety-four Million Four Hundred Sixty-two Thousand Dollars
($294,462,000.00) plus (b) seventy-five percent (75%) of the proceeds of
any equity offering of the Company (net of the reasonable expenses of
such equity offering) occurring after December 31, 1997.
8. Events of Default and Remedies.
8.1 Event of Default. Any of the following shall constitute
an Event of Default:
8.1.1 Non-Payment. The Company fails to pay, (i) when
and as required to be paid herein, any amount of principal of any Loan,
or (ii) within ten (10) days after the same shall become due, any
interest, fee or any other amount payable hereunder or pursuant to any
other Loan Document; or
8.1.2 Representation or Warranty. Any representation
or warranty by the Company, any of its Subsidiaries or any Permitted
Partnership made or deemed made in this Agreement or any other Loan
Document, or which is contained in any certificate, document or financial
or other statement by the Company, any of its Subsidiaries, any Permitted
Partnership, or their respective Responsible Officers, furnished at any
time under this Agreement or in or under any other Loan Document, shall
prove to have been incorrect in any material respect on or as of the date
made or deemed made; or
8.1.3 Specific Defaults. The Company fails to perform
or observe any term, covenant or agreement contained in Sections 6.1,
6.2, 6.3, 6.6, 6.9, 7.10, 7.11 or 7.17; or
8.1.4 Other Defaults. The Company fails to perform or
observe any other term or covenant contained in this Agreement or any
other Loan Document, and such default shall continue unremedied for a
period of twenty (20) days after the earlier of (i) the date upon which
a Responsible Officer of the Company knew of such failure or (ii) the
date upon which written notice thereof is given to the Company by the
Administrative Agent; or
8.1.5 Cross-Default. The occurrence of an "Event of
Default" under and as defined in the Secured Loan Agreement or the
Unsecured Loan Agreement; or
8.1.6 Insolvency; Voluntary Proceedings. The Company
or any of its Subsidiaries or any Permitted Partnership (i) ceases or
fails to be Solvent, or generally fails to pay, or admits in writing its
inability to pay, its debts as they become due, subject to applicable
grace periods, if any, whether at stated maturity or otherwise;
(ii) voluntarily ceases to conduct its business in the ordinary course;
(iii) commences any Insolvency Proceeding with respect to itself; or
(iv) takes any action to effectuate or authorize any of the foregoing;
or
8.1.7 Insolvency; Involuntary Proceedings. (i) Any
involuntary Insolvency Proceeding is commenced or filed against the
Company, any Subsidiary of the Company or any Permitted Partnership, or
any writ, judgment, warrant of attachment, execution or similar process,
is issued or levied against a substantial part of the Company's or any
of its Subsidiaries' or any Permitted Partnership's Properties, and any
such proceeding or petition shall not be dismissed, or such writ,
judgment, warrant of attachment, execution or similar process shall not
be released, vacated or fully bonded within sixty (60) days after
commencement, filing or levy; (ii) the Company or any of its Subsidiaries
or any Permitted Partnership admits the material allegations of a
petition against it in any Insolvency Proceeding, or an order for relief
(or similar order under non-U.S. law) is ordered in any Insolvency
Proceeding; or (iii) the Company or any of its Subsidiaries or any
Permitted Partnership acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in possession (or
agent therefor), or other similar Person for itself or a substantial
portion of its Property or business; or
8.1.8 ERISA Plans. The occurrence of any one or more
of the following events with respect to the Company, provided such event
or events could reasonably be expected, in the judgment of the
Administrative Agent, to subject the Company to any tax, penalty or
liability (or any combination of the foregoing) which, in the aggregate,
could have a material adverse effect on the financial condition of the
Company with respect to a Plan:
(a) A Reportable Event shall occur with respect
to a Plan which is, in the reasonable judgment of the Administrative
Agent likely to result in the termination of such Plan for purposes
of Title IV of ERISA; or
(b) Any Plan termination (or commencement of
proceedings to terminate a Plan) or the Company's full or partial
withdrawal from a Plan; or
8.1.9 Monetary Judgments. One or more final
(non-interlocutory) judgments, orders or decrees shall be entered against
the Company or any of its Subsidiaries or any Permitted Partnership
involving in the aggregate a liability (not fully covered by insurance)
as to any single or related series of transactions, incidents or
conditions of $1,000,000 or more, and the same shall remain unvacated and
unstayed pending appeal for a period of sixty (60) days after the entry
thereof; or
8.1.10 Adverse Change. There shall occur, or be
reasonably likely to occur, a Material Adverse Effect that continues
unremedied for a period of thirty (30) days after the earlier of (i) the
date upon which a Responsible Officer of the Company knew or should have
known of such Material Adverse Effect or (ii) the date upon which written
notice thereof is given to the Company by the Bank; or
8.1.11 Management Changes. The Chairman of the Board
or the chief executive officer of the Company resigns, is terminated or
otherwise ceases to act for any reason, and such officer of the Company
is not replaced with a person reasonably satisfactory to the Majority
Banks within six (6) months after he ceases to hold such position.
8.1.12 Preferred Dividend Defaults. The Company fails
to pay in full any two (2) consecutive quarterly dividend payments owing
to holders of the Company's preferred shares.
8.1.13 Early Termination of a Specified Swap Contract.
There occurs under any Specified Swap Contract an Early Termination Date
(as defined in such Specified Swap Contract) resulting from (i) any event
of default under such Specified Swap Contract as to which the Company is
the Defaulting Party (as defined in such Specified Swap Contract) or
(ii) any Termination Event (as defined in such Specified Swap Contract)
as to which the Company is an Affected Party (as defined in such
Specified Swap Contract), the occurrence of such Early Termination Date
gives rise to a monetary obligation owing from the Company to the Swap
Provider under the Specified Swap Contract, and the Company fails to pay
such monetary obligation within five (5) days of such Swap Provider's
demand.
8.2 Remedies. If any Event of Default occurs, the
Administrative Agent shall, at the request of, or may, with the consent
of, the Majority Banks:
8.2.1 Termination of Commitment to Lend. Declare the
commitment of each Bank to make Loans to be terminated, whereupon
such commitment shall forthwith be terminated; and
8.2.2 Acceleration of Loans. Declare the unpaid
principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or
under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Company; and
8.2.3 Exercise of Rights and Remedies. Exercise all
rights and remedies available to it under the Loan Documents or
applicable law; provided, however, that upon the occurrence of any
event specified in subsections 8.1.6 or 8.1.7 above (in the case of
clause (i) of subsection 8.1.7 upon the expiration of the 60-day
period mentioned therein), the obligation of each Bank to make Loans
shall automatically terminate, and the unpaid principal amount of
all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable without further
act of the Administrative Agent or any Bank. Notwithstanding any
contrary provision of any Loan Document, the Administrative Agent
shall not incur any trustee or other foreclosure fees or expenses
for which it will seek reimbursement from the Company under
Section 10.4(b) until at least five (5) Business Days after the
occurrence of an Event of Default under subsection 8.1.3; provided,
however, that this restriction shall not apply to any other Event
of Default. Notwithstanding any contrary provision of applicable
law, not less than thirty (30) days shall elapse between the
occurrence of an Event of Default and the actual sale of any
Property securing the Loans, but the Administrative Agent may give
any notices, commence any actions, obtain the appointment of
receivers and other provisional remedies, sequester any rents,
issues and profits, or exercise any of its other rights or remedies
during such thirty (30) day period;
provided, however, that upon the occurrence of an Event of Default under
Section 8.1.12, the Administrative Agent may not exercise any of its
remedies under Sections 8.2.2 or 8.2.3 until the earlier of (i) the first
date on which a notice of redemption is given with respect to any or all
of the Company's preferred shares or (ii) ninety (90) days after the
occurrence of such Event of Default, unless the Company cures such Event
of Default during such ninety (90) day period.
8.3 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided
by law or in equity, or under any other instrument, document or agreement
now existing or hereafter arising.
8.4 Specified Swap Contract Remedies. Notwithstanding any
contrary provision of this Article 8 (other than Section 8.5), but
subject to the provisions of Section 8.5, each Swap Provider shall have
with respect to any Specified Swap Contract of such Swap Provider the
right, to the extent so provided in the applicable Specified Swap
Contract or any master agreement relating thereto, and after notice to
the Administrative Agent, but without the approval or consent of the
Administrative Agent or the other Banks, to (a) declare an event of
default, termination event or other similar event thereunder and to
create an Early Termination Date, and (b) to determine net termination
amounts in accordance with the terms of such Specified Swap Contract and
to set-off amounts between Specified Swap Contracts.
8.5 Subordination of Swap Obligations.
8.5.1 Each Swap Provider agrees that (a) any and all
present and future obligations or liabilities of the Company to a Swap
Provider under any Specified Swap Contract, whether fixed or contingent,
matured or unmatured, or liquidated or unliquidated, including any net
termination amounts payable to the Swap Provider under any such Specified
Swap Contract (collectively, the "Specified Swap Obligations"), shall be
at all times junior and subordinate to the Obligations, including any
claim for interest or expenses accruing after the commencement of an
Insolvency Proceeding by or against the Company, and (b) all of the
Specified Swap Obligations owing from the Company to each Swap Provider
shall have the same priority, and each Swap Provider shall share equally
and ratably (based on the relative amounts of the Specified Swap
Obligations owing from the Company to each such Swap Provider) in any
payment from the Company or in the proceeds of any Collateral after all
of the Obligations have been paid or otherwise satisfied in full and the
obligations of the Banks to make Loans hereunder have been terminated.
8.5.2 Notwithstanding any contrary provision of any
Specified Swap Contract, upon the occurrence of any event of default, a
"Termination Event" or an "Early Termination Date" under a Specified Swap
Contract, the Swap Provider shall have no right to exercise any of its
rights or remedies against the Company under the Specified Swap Contract,
and the Swap Provider's sole rights and remedies against the Company
shall be limited to those of a "Bank" under the Loan Documents, until all
of the Collateral has been exhausted. In particular, a Swap Provider
shall have no right to commence or prosecute any action against the
Company under the Specified Swap Contract, to realize upon any of the
Collateral or to set off against any deposit account of the Company with
the Swap Provider. Upon the occurrence and during the continuance of any
Event of Default, any payment by the Company to a Swap Provider pursuant
to a Specified Swap Contract, including any payment on any claim filed
by such Swap Provider in any Insolvency Proceeding commenced by or
against the Company, shall be considered to be a payment on account of
the Obligations that is subject to the provisions of Section 2.13, until
all of the Obligations have been paid or otherwise satisfied in full, and
shall thereafter be considered to be a payment on account of all of the
Specified Swap Obligations, and shall be shared by all of the Swap
Providers pursuant to this Section 8.5 in the manner set forth in
Section 2.13. Each Swap Provider agrees that the provisions of this
Section 8.5.2 relating to restrictions on the exercise of remedies shall
not apply to Bank of America acting in its capacity as Administrative
Agent for the Banks.
8.5.3 Upon the occurrence of an Event of Default,
including an Event of Default under Section 8.1.13, the proceeds of any
Collateral shall first be applied to the Obligations, until all of the
Obligations have been paid or otherwise satisfied in full, and then to
the Specified Swap Obligations, until all of the Specified Swap
Obligations have been paid or otherwise satisfied in full.
8.5.4 Each Swap Provider agrees that its issuance of
a Specified Swap Contract shall not alter any of its rights, duties or
liabilities, or the rights, duties or liabilities of the Administrative
Agent or any other Bank, under the Loan Documents, and each Swap Provider
agrees that the Administrative Agent's or any Bank's exercise of any of
its rights under the Loan Documents, with or without the consent of such
Swap Provider, shall not alter, waive or otherwise prejudice the
Administrative Agent's or any Bank's rights with respect to such Swap
Provider under this Section 8.5.
8.5.5 The provisions of this Section 8.5 shall survive
the full repayment or satisfaction of the Obligations, and shall continue
in force until all of the Specified Swap Obligations owing from the
Company to each Swap Provider have been paid or otherwise satisfied in
full.
9. The Administrative Agent.
9.1 Appointment and Authorization of the Administrative
Agent. Each Bank hereby irrevocably appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the
provisions of this Agreement, each other Loan Document and the
Environmental Indemnity, and to exercise such powers and perform such
duties, as are expressly delegated to it by the terms of this Agreement,
any other Loan Document or the Environmental Indemnity, together with
such powers as are reasonably incidental thereto and as further provided
in any co-lender agreement among the Administrative Agent and the Banks.
9.2 The Administrative Agent's Powers. Subject to the
limitations set forth in the Loan Documents, the Environmental Indemnity
and any co-lender agreement, the Administrative Agent's powers include
but are not limited to the power: (a) to administer, manage and service
the Loans; (b) to enforce the Loan Documents and/or the Environmental
Indemnity; (c) to make all decisions under the Loan Documents or the
Environmental Indemnity in connection with the day-to-day administration
of the Loans, any inspections required by the Loan Documents or the
Environmental Indemnity, and other routine administration and servicing
matters; (d) to collect and receive from the Company or any third persons
all payments of amounts due under the terms of the Loan Documents and to
distribute the amounts thereof to the Banks; (e) to collect and
distribute or disburse all other amounts due under the Loan Documents or
the Environmental Indemnity; (f) to grant or withhold consents, approvals
or waivers, and make any other determinations in connection with the Loan
Documents or the Environmental Indemnity; and (g) to exercise all such
powers as are incidental to any of the foregoing matters. The
Administrative Agent shall furnish to the Banks copies of material
documents, including confidential ones, received from the Company
regarding the Loans, the Loan Documents, the Environmental Indemnity and
the transactions contemplated thereby. The Administrative Agent shall
have no responsibility with respect to the authenticity, validity,
accuracy or completeness of the information provided.
9.3 Limitation on the Administrative Agent's Duties.
Notwithstanding any contrary provision of any Loan Document or the
Environmental Indemnity, the Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in the Loan
Documents, the Environmental Indemnity or any co-lender agreement, nor
shall the Administrative Agent have any fiduciary relationship with any
Bank, and no implied covenants, responsibilities, duties, obligations or
liabilities shall be read into this Agreement, any other Loan Document,
the Environmental Indemnity or any co-lender agreement against the
Administrative Agent.
9.4 Successor Administrative Agent. The Administrative Agent
may, and at the request of the Majority Banks shall, resign as
Administrative Agent upon thirty (30) days' notice to the Banks. If the
Administrative Agent resigns under this Agreement, the Majority Banks
shall appoint from among the Banks a successor administrative agent. If
no successor administrative agent is appointed prior to the effective
date of the resignation of the Administrative Agent, the Administrative
Agent may appoint, after consulting with the Banks, a successor
administrative agent which would qualify as an Eligible Assignee. Upon
its acceptance of the appointment as successor administrative agent
hereunder, such successor shall succeed to all of the rights, powers and
duties of the retiring Administrative Agent, the term "Administrative
Agent" shall mean such successor, and the appointment, powers and duties
of such retiring Administrative Agent shall terminate. After any
retiring Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this Agreement or the Environmental Indemnity
regarding payment of costs and expenses and indemnification of the
Administrative Agent shall inure to its benefit as to any actions that
such retiring Administrative Agent took or omitted to take while it was
Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by
the date which is thirty (30) days following a retiring Administrative
Agent's notice of resignation, the retiring Administrative Agent's
resignation shall nevertheless thereupon become effective, and the Banks
shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Majority Banks appoint a successor
administrative agent in the manner set forth above. Upon replacement of
the Administrative Agent as provided in this Agreement, the former
Administrative Agent shall promptly deliver to the new Administrative
Agent an assignment of all beneficial interest in any Mortgage and any
other Collateral Documents (if before acquisition of title to the
Collateral encumbered thereby), or a quitclaim deed to and assignment of
any such Property (if after acquisition of the Collateral encumbered
thereby) and copies of any books, records and documents related to the
Loans and the Collateral to which the Banks are entitled and which is
then in the former Administrative Agent's possession.
10. Miscellaneous.
10.1 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent
with respect to any departure by the Company therefrom, shall be
effective unless the same shall be in writing and signed by the
Administrative Agent at the written request of the Majority Banks, and
then such waiver shall be effective only in the specific instance and for
the specific purpose for which given; provided however, that no such
amendment or waiver shall do any of the following unless it is in writing
and signed by the Administrative Agent at the written request of all the
Banks:
(a) Increase the Commitment of any Bank;
(b) Postpone or delay any date fixed by this Agreement
or any other Loan Document for any payment of principal, interest,
fees or other amounts due to the Banks (or any one of them)
hereunder or under any other Loan Document;
(c) Reduce the rate of interest or any fees or other
amounts payable in connection with the Loan;
(d) Change the voting percentage of the Commitments or
of the aggregate unpaid principal amount of the Loans that is
required for the Banks, or any of them, to take any action
hereunder;
(e) Amend this or any provision requiring consent of
all Banks for action by the Banks or the Administrative Agent;
(f) Discharge the Company or any guarantor, or release
any of the Collateral, except as otherwise may be provided in the
Loan Documents or except where the consent of only the Majority
Banks is expressly required by any Loan Document;
(g) Amend Section 7.10, Section 7.11, Section 7.15,
Section 7.16, Section 7.17 or Section 8 of the Loan Agreement, or
the definitions of the terms "Collateral Value" or "Cash Flow Value"
set forth in Section 1.1 of the Loan Agreement.
10.2 Notices.
(a) All notices, requests and other communications
provided for hereunder shall be in writing (including, unless the
context expressly otherwise provides, facsimile transmission) and
mailed (by certified mail, postage prepaid, return receipt
requested), delivered or telecopied to the address or number
specified for notices on the applicable signature page hereof, or
to such other address as shall be designated by such party in a
written notice to the other parties.
(b) All such notices and communications shall, when
transmitted by overnight delivery or telecopied by facsimile, be
effective when delivered for overnight delivery or transmitted by
telecopier, respectively, or if delivered, upon delivery, except
that notices pursuant to Article 2 shall not be effective until
actually received by the Administrative Agent. All notices and
communications telecopied by facsimile will also be mailed by
ordinary first class mail, postage prepaid. All such notices and
communications delivered by mail shall be effective upon the earlier
of (i) two (2) Business Days after deposit in the United States
mail, or (ii) actual receipt, as evidenced by the return receipt.
(c) The Company acknowledges and agrees that any
agreement of the Administrative Agent at Article 2 herein to receive
certain notices by telephone and facsimile is solely for the
convenience and at the request of the Company. The Administrative
Agent and the Banks shall be entitled to rely on the authority of
any Person purporting to be a Person authorized by the Company to
give such notice, and the Administrative Agent and the Banks shall
not have any liability to the Company or any other Person on account
of any action taken or not taken by the Administrative Agent or the
Banks in reliance upon such telephonic or facsimile notice. The
obligation of the Company to repay the Loans shall not be affected
in any way or to any extent by any failure by the Administrative
Agent or the Banks to receive written confirmation of any telephonic
or facsimile notice or the receipt by the Administrative Agent or
the Banks of a confirmation which is at variance with the terms
understood by the Administrative Agent or the Banks to be contained
in the telephonic or facsimile notice.
10.3 No Waiver; Cumulative Remedies. No failure on the part
of the Administrative Agent or any Bank in exercising, and no delay in
its exercising, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy,
power or privilege.
10.4 Costs and Expenses. The Company shall, whether or not
the transactions contemplated hereby shall be consummated:
(a) pay or reimburse the Administrative Agent (or, as
to Attorney Costs, pay directly to the attorneys for the
Administrative Agent) within fifteen (15) Business Days after demand
(subject to subsections 4.1.12 and 4.2.3) for all costs and expenses
incurred by them in connection with the development, preparation,
delivery, administration (other than normal overhead costs of
administering the Loans), execution and syndication of, and any
amendment, supplement, waiver or modification to, this Agreement,
any other Loan Document and any other documents prepared in
connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including Attorney
Costs incurred by Bank of America (including in its capacity as the
Administrative Agent) with respect thereto;
(b) pay or reimburse the Administrative Agent (or, as
to Attorney Costs, pay directly to the attorneys for the
Administrative Agent) within fifteen (15) Business Days after demand
(subject to subsections 4.1.12 and 4.2.3) for all costs and expenses
incurred in connection with the enforcement, attempted enforcement
or preservation of any rights or remedies (including in connection
with any workout or restructuring regarding the Loans or any
Insolvency Proceeding) under this Agreement, any other Loan
Document, and any such other documents, including Attorney Costs
incurred by the Administrative Agent; and
(c) pay or reimburse Bank of America (including in its
capacity as the Administrative Agent) within thirty (30) days after
demand (subject to subsections 4.1.12 and 4.2.3) for all appraisal
(including the allocated cost of internal appraisal services),
audit, environmental inspection and review (including the allocated
cost of such internal services), search and filing costs, fees and
expenses incurred or sustained by Bank of America (including in its
capacity as the Administrative Agent) in connection with the matters
referred to under paragraphs (a) and (b) of this Section.
10.5 Indemnity. Whether or not the transactions contemplated
hereby shall be consummated, the Company shall pay, indemnify, and hold
the Agent-Related Persons, and each Bank and each of their respective
officers, directors, employees, counsel, agents and attorneys-in-fact
(each, an "Indemnified Person") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, charges, expenses or disbursements (including Attorney
Costs) of any kind or nature whatsoever which may be incurred by or
asserted against any such Indemnified Person arising out of relating to
the execution, delivery, enforcement, performance or administration of
this Agreement or any other Loan Documents, or the transactions
contemplated hereby and thereby, and with respect to any investigation,
litigation or proceeding related to this Agreement or the Loans or the
use of the proceeds thereof, whether or not any Indemnified Person is a
party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided, that the Company shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified
Liabilities arising solely from the negligence or willful misconduct of
such Indemnified Person. The obligations in this Section 10.5 shall
survive payment or satisfaction of all other Obligations. At the
election of any Indemnified Person, the Company shall defend such
Indemnified Person using legal counsel satisfactory to such Indemnified
Person in such Person's sole discretion, at the sole cost and expense of
the Company. All amounts owing under this Section 10.5 shall be paid
within thirty (30) days after demand.
10.6 Marshaling; Payments Set Aside. Neither the
Administrative Agent not the Banks shall be under any obligation to
marshal any assets in favor of the Company or any other Person, including
any Swap Provider, or against or in payment of any or all of the
Obligations. To the extent that the Company makes a payment or payments
to the Administrative Agent or the Banks, or the Administrative Agent or
the Banks enforce their Liens, and such payment or payments or the
proceeds of such enforcement or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or
required to be repaid to a trustee, receiver or any other party in
connection with any Insolvency Proceeding, or otherwise, then to the
extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement had not
occurred.
10.7 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, except that the Company may not
assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the Administrative Agent and each
Bank.
10.8 Assignments, Participations, Confidentiality.
10.8.1 Assignments. Each Bank may at any time assign
and delegate to one or more Eligible Assignees (each, an "Assignee"),
without the consent of the Company, all or a portion of the Loans, the
Commitment and the other rights and obligations of such Bank hereunder,
under the other Loan Documents and under the Environmental Indemnity;
provided, however, that any assignment of a Bank's interest in the Loans,
the Commitment and the other rights and obligations of such Bank
hereunder and under the other Loan Documents shall be in the minimum
amount of Ten Million Dollars ($10,000,000.00) and multiples of One
Million Dollars ($1,000,000.00) in excess thereof; and provided further,
however, that the Company may continue to deal solely and directly with
the assignor Bank in connection with the interest so assigned to an
Assignee until (i) written notice of such assignment, substantially in
the form of Schedule 1 to the attached Exhibit G, shall have been given
to the Company and the Administrative Agent by such Bank and the
Assignee, (ii) such Bank and its Assignee shall have delivered to the
Administrative Agent and the Company an Assignment and Assumption
Agreement substantially in the form of the attached Exhibit G("Assignment
and Assumption Agreement") (together with any Note(s)
subject to such assignment), and (iii) the Assignee shall have paid to
the Administrative Agent a processing fee in the amount of $2,500. In
the event that the Company elects to permanently reduce the Maximum
Commitment Amount pursuant to Section 2.5, the minimum required hold
amounts and the minimum amount of any assignment of a Bank's interest in
the Loans, the Commitment and the other rights and obligations of such
Bank hereunder and under the other Loan Documents shall be reduced pro
rata.
10.8.2 Effect of Assignment. From and after the date
on which the Administrative Agent notifies the assigning Bank that all
conditions and requirements of the assignment have been met, then to the
extent that rights and obligations hereunder have been assigned (a) the
Assignee thereunder shall be a party hereto and shall have the rights and
obligations of a Bank under the Loan Documents, the Environmental
Indemnity and any co-lender agreement among the Administrative Agent and
the Banks, (b) the assigning Bank shall relinquish such assigned rights
and be released from such assigned obligations under the Loan Documents,
(c) this Agreement shall be deemed to be amended to the extent necessary
to reflect the addition of the Assignee and the resulting adjustment of
the Pro Rata Shares of the Loans arising therefrom, and (d) the Pro Rata
Share allocated to an Assignee shall reduce the Pro Rata Share of the
assigning Bank.
10.8.3 Participations. Subject to the limitations set
forth in Section 10.8.1, which apply equally to participations and
assignments, any Bank (the "originating Bank") may at any time sell to
one or more Persons that are not Affiliates of the Company (each, a
"Participant") participating interests in any Loans, the Commitment and
the other interests of such originating Bank hereunder and under the
other Loan Documents; provided, however, that (a) the originating Bank's
obligations under this Agreement shall remain unchanged, (b) the
originating Bank shall remain solely responsible for the performance of
such obligations, (c) the Company and the Administrative Agent shall
continue to deal solely and directly with the originating Bank in
connection with the originating Bank's rights and obligations under this
Agreement and the other Loan Documents, (d) the Participant shall,
together with the originating Bank, be entitled to the non-exclusive
protections of Sections 3.1 and 3.3 as though it were also the
originating Bank hereunder, and (e) no Bank shall transfer or grant any
participating interest under which the Participant has rights to approve
any amendment, consent or waiver with respect to any Loan Document,
except to the extent such amendment, consent or waiver would require
unanimous consent of the Banks. A Participant shall not have any rights
under the Loan Documents or any co-lender agreement, and all amounts
payable by the Company hereunder shall be determined as if the
originating Bank had not sold such participation.
10.8.4 Pledge to Federal Reserve Bank. Notwithstanding
any other provision, a Bank may pledge its interest in the Commitment,
in the Loans and under the Loan Documents in favor of any Federal Reserve
Bank in accordance with Federal law.
10.8.5 Confidentiality. Each Bank agrees to take
normal and reasonable precautions and exercise due care to maintain the
confidentiality of all non-public information provided to it by the
Company or any Subsidiary of the Company in connection with this
Agreement or any other Loan Document, and the Banks and any of its
Affiliates shall not use any such information for any purpose or in any
manner other than pursuant to the terms contemplated by this Agreement,
except to the extent such information (i) was or becomes generally
available to the public other than as a result of a disclosure by such
Bank, or (ii) was or becomes available on a non-confidential basis from
a source other than the Company (provided that such source is not bound
by a confidentiality agreement with the Company known to such Bank);
provided, however, that such Bank may disclose such information (A) at
the request or pursuant to any requirement of any Governmental Authority
to which such Bank is subject or in connection with an examination of
such Bank by any such authority; (B) pursuant to subpoena or other court
process; (C) when required to do so in accordance with the provisions of
any applicable Requirement of Law; (D) to such Bank's independent
auditors and other professional advisors; and (E) to any Affiliate of
such Bank (including, in the case of Bank of America, the Lead Arranger).
Notwithstanding the foregoing, the Company authorizes each Bank to
disclose to any Participant or Assignee (each, a "Transferee"), and to
any prospective Transferee, such financial and other information in such
Bank's possession concerning the Company or its Subsidiaries which has
been delivered to such Bank pursuant to this Agreement or which has been
delivered to such Bank by the Company in connection with the Bank's
credit evaluation of the Company prior to entering into this Agreement;
provided that, unless otherwise agreed by the Company, such Transferee
agrees in writing with such Bank to keep such information confidential
to the same extent required of such Bank hereunder.
10.9 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement in any number of separate
counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.10 Severability. The illegality or unenforceability
of any provision of this Agreement or any instrument or agreement
required hereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Agreement or any
instrument or agreement required hereunder.
10.11 No Third Parties Benefitted. This Agreement is
made and entered into for the sole protection and legal benefit of the
Company, the Banks, the Administrative Agent and the Agent-Related
Persons, and their permitted successors and assigns, and no other Person
(other than an Indemnified Person under Section 10.5) shall be a direct
or indirect legal beneficiary of, or have any direct or indirect cause
of action or claim in connection with, this Agreement or any of the other
Loan Documents. The Administrative Agent shall have no obligation to any
Person not a party to this Agreement or the other Loan Documents.
10.12 Time. Time is of the essence as to each term or
provision of this Agreement and each of the other Loan Documents.
10.13 Governing Law. This Agreement and the Revolving
Notes shall be governed by, and construed in accordance with, the laws
of the State of California (without regard to conflicts of law rules);
provided that the Administrative Agent and the Banks shall retain all
rights arising under federal law.
10.14 Arbitration; Reference.
(a) Mandatory Arbitration. Any controversy or claim
between or among the parties, including but not limited to those
arising out of or relating to this Agreement or any agreements or
instruments relating hereto or delivered in connection herewith and
any claim based on or arising from an alleged tort, shall at the
request of any party be determined by arbitration. The arbitration
shall be conducted in accordance with the United States Arbitration
Act (Title 9, U.S. Code), notwithstanding any choice of law
provision in this Agreement, and under the Commercial Rules of the
American Arbitration Association ("AAA"). The arbitrator(s) shall
give effect to statutes of limitation in determining any claim. Any
controversy concerning whether an issue is arbitrable shall be
determined by the arbitrator(s). Judgment upon the arbitration
award may be entered in any court having jurisdiction. The
institution and maintenance of an action for judicial relief or
pursuit of a provisional or ancillary remedy shall not constitute
a waiver of the right of any party, including the plaintiff, to
submit the controversy or claim to arbitration if any other party
contests such action for judicial relief.
(b) Real Property Collateral. Notwithstanding the
provisions of subparagraph 10.14(a), no controversy or claim shall
be submitted to arbitration without the consent of all parties if,
at the time of the proposed submission, such controversy or claim
arises from or relates to an obligation to the Banks which is
secured by real property collateral. If all parties do not consent
to submission of such a controversy or claim to arbitration, the
controversy or claim shall be determined as provided in
subparagraph 10.14(c).
(c) Judicial Reference. At the request of any party,
a controversy or claim which is not submitted to arbitration as
provided and limited in subparagraphs 10.14(a) and 10.14(b) shall
be determined by a reference in accordance with California Code of
Civil Procedure Section 638 et seq. If such an election is made,
the parties shall designate to the court a referee or referees
selected under the auspices of the AAA in the same manner as
arbitrators are selected in AAA-sponsored proceedings. The
presiding referee of the panel, or the referee if there is a single
referee, shall be an active attorney or retired judge. Judgment
upon the award rendered by such referee or referees shall be entered
in the court in which such proceeding was commenced in accordance
with California Code of Civil Procedure Sections 644 and 645.
(d) Provisional Remedies, Self-Help and Foreclosure.
No provision of this Section 10.14 shall limit the right of any
party to this Agreement to exercise self-help remedies such as
set-off, foreclosure against or sale of any real or personal
property collateral or security, or obtaining provisional or
ancillary remedies from a court of competent jurisdiction before,
after or during the pendency of any arbitration or other proceeding.
The exercise of a remedy does not waive the right of either party
to resort to arbitration or reference. At Bank's option,
foreclosure under a deed of trust or mortgage may be accomplished
either by exercise of a power of sale under the deed of trust or
mortgage or by judicial foreclosure.
10.15 Notice of Claims; Claims Bar. THE COMPANY HEREBY
AGREES THAT IT SHALL GIVE PROMPT WRITTEN NOTICE OF ANY CLAIM OR CAUSE OF
ACTION IT BELIEVES IT HAS, OR MAY SEEK TO ASSERT OR ALLEGE, AGAINST THE
BANK, WHETHER SUCH CLAIM IS BASED IN LAW OR EQUITY, ARISING UNDER OR
RELATED TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, OR TO THE
LOANS (OR THE COLLATERAL THEREFOR), OR ANY ACT OR OMISSION TO ACT BY THE
ADMINISTRATIVE AGENT OR ANY BANK WITH RESPECT HERETO OR THERETO, AND THAT
IF IT SHALL FAIL TO GIVE SUCH PROMPT NOTICE TO THE ADMINISTRATIVE AGENT
OR SUCH BANK WITH REGARD TO ANY SUCH CLAIM OR CAUSE OF ACTION, IT SHALL
BE DEEMED TO HAVE WAIVED, AND SHALL BE FOREVER BARRED FROM BRINGING OR
ASSERTING, SUCH CLAIM OR CAUSE OF ACTION IN ANY SUIT, ACTION OR
PROCEEDING IN ANY COURT OR BEFORE ANY GOVERNMENTAL AGENCY.
10.16 Entire Agreement. This Agreement, together with
the other Loan Documents and the Environmental Indemnity, embodies the
entire Agreement and understanding among the Company, on the one hand,
and the Administrative Agent and the Banks, on the other, and supersedes
all prior or contemporaneous agreements and understandings of such
Persons, verbal or written, relating to the subject matter hereof and
thereof, except for any prior arrangements made with respect to the
payment by the Company of (or any indemnification for) any fees, costs
or expenses payable to or incurred (or to be incurred) by or on behalf
of the Administrative Agent or any of the Banks.
10.17 Interpretation. This Agreement is the result of
negotiations between, and has been reviewed by counsel to, the Company
and the Administrative Agent, and is the product of all parties hereto.
Accordingly, this Agreement and the other Loan Documents shall not be
construed against the Administrative Agent or the Banks merely because
of their involvement in the preparation of such documents and agreements.
10.18 Existing Approved Parcels. The Administrative
Agent and each Bank acknowledges that, as of the date of this Agreement,
each of the Parcels identified on Exhibit F is an Approved Parcel having
the Appraised Value set forth therein.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
"Company"
BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By /s/Xxxx Xxxxxx
Xxxx Xxxxxx, Chief Financial Officer
[Printed Name and Title]
Notice Address:
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
"Administrative Agent"
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative Agent
By /s/Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx, Vice President
[Printed Name and Title]
Notice Address:
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
"Banks"
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx, Vice President
[Printed Name and Title]
Commitment: $30,000,000
Lending Office/Notice Address:
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
EXHIBIT A
[Form of Borrowing Notice]
(Date)
Bank of America National Trust and Savings
Association, as Administrative Agent
00 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxx
Re: $30,000,000 Secured Revolving Loan to Bedford Property
Investors, Inc.; Loan No. ____________________;
Borrowing Notice No. _________________________
Ladies and Gentlemen:
Bedford Property Investors, Inc. (the "Company") hereby
requests a Borrowing on the terms set forth below pursuant to
Sections 2.1 and 2.3 of that certain Credit Agreement (Secured Loan)
dated as of February 26, 1999, among the Company, the Banks party thereto
and Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks (the "Agreement"). Capitalized terms
used herein and not defined herein shall have the meanings given to them
in the Agreement.
1. The amount of the Borrowing is U.S.$ __________ (minimum
principal amount of $250,000 for Reference Rate Borrowings and $1,000,000
for LIBOR Rate Borrowings).
2. The borrowing date will be ____________, 19__.
3. The Borrowing will be a Reference Rate/LIBOR Rate Loan.
4. If the Borrowing is to consist of LIBOR Rate Loans, the
Interest Period will be _____ [days] [year], and will begin on
_______________, 19__, and will end on _______________, 19__.
The Company hereby represents and warrants to the
Administrative Agent and the Banks that (i) the representations and
warranties made by the Company contained in Article 5 of the Agreement
are true and correct on and as of the borrowing date with the same effect
as if made on and as of such borrowing date (except to the extent such
representations and warranties expressly refer to an earlier date, in
which case they were true and correct as of such earlier date); (ii) no
Default or Event of Default has occurred and remains uncured and no
Default or Event of Default shall result from the making of the requested
Loan; and (iii) with respect to the requested Loan, all of the conditions
of Section 4.3 of the Agreement have been satisfied (and will be
satisfied on the date such Loan is made).
BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation,
By ____________________________
Designated Representative
EXHIBIT B
[Form of Conversion/Continuation Notice]
(Date)
Bank of America National Trust and Savings
Association, as Administrative Agent
00 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxx
Re: $30,000,000 Revolving Loan to Bedford Property Investors,
Inc.; Loan No. ____________________; Conversion/Continuation
Notice No. ___________
Ladies and Gentlemen:
Pursuant to Section 2.4 of that certain Credit Agreement
(Secured Loan) dated as of February 26, 1999, among Bedford Property
Investors, Inc., a Maryland corporation (the "Company"), the Banks party
thereto and Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks (the "Agreement"), the Company hereby
elects to [convert the [Reference Rate Loan/expiring LIBOR Rate Loan]
described below into [a LIBOR Rate Loan/a Reference Rate Loan] having the
terms described below] [continue the expiring LIBOR Rate Loan described
below as a LIBOR Rate Loan having the terms described below].
Capitalized terms used herein and not defined herein shall have the
meanings given to them in the Agreement.
1. The [conversion/continuation] date is _______________,
19__.
2. The aggregate amount of Loans to be [converted to [LIBOR
Rate Loans] [Reference Rate Loans]/continued as LIBOR Rate Loans] is
U.S.$ _______________.
3. The Company requests [conversion of U.S.$ _______________
of [Reference Rate Loans] [LIBOR Rate Loans] to [a LIBOR Rate Loan having
an Interest Period of _____ [days] [year], beginning on _______________,
19__, and ending on _______________, 19__] [a Reference Rate Loan]]
[continuation of U.S.$ _______________ of LIBOR Rate Loans as a LIBOR
Rate Loan having an Interest Period of _____ [days] [year], beginning on
_______________, 19__, and ending on _______________, 19__.]
BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation,
By ____________________________
Designated Representative
EXHIBIT C
[Form of Revolving Note]
REVOLVING NOTE
$_____________ San Francisco, California
_________, 199_
FOR VALUE RECEIVED, BEDFORD PROPERTY INVESTORS, INC., a
Maryland corporation (the "Company"), promises to pay to the order of
__________________________________________________________ (the "Bank"),
at the offices of Bank of America National Trust and Savings Association,
Administrative Agent for the Bank, at 00 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
(Xxxx Estate Structured Debt Group), Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, or
at such other place as the Bank may designate from time to time, the sum
of ___________________________ ________________________________
($_____________), or the aggregate unpaid principal amount outstanding
hereunder, whichever may be the lesser, in immediately available funds
and lawful money of the United States of America.
Interest shall accrue on amounts outstanding hereunder in
accordance with that certain Credit Agreement (Secured Loan) dated as of
February 26, 1999 (the "Agreement") among the Company, the Banks party
thereto and Bank of America National Trust and Savings Association, as
Administrative Agent for the Banks. (Capitalized term used in this
Revolving Note and not defined herein shall have the meanings given to
them in the Agreement.) Pursuant thereto, interest shall accrue on
amounts outstanding hereunder from time to time: (a) at a fluctuating
per annum rate equal to the Reference Rate; or (b) at the Company's
option, subject to the terms of the Agreement, at a per annum rate equal
to the LIBOR Rate plus the Applicable Margin. A change in the interest
rate for Reference Rate Loans shall take effect on the day specified in
the public announcement of the change in the Reference Rate. Interest
shall be computed on the basis of a 360-day year and actual days elapsed.
Interest shall become due and payable in accordance with the terms of the
Agreement.
Subject to the provisions of Section 2.7 of the Agreement, all
unpaid principal and interest outstanding hereunder shall be due and
payable on September 1, 1999; provided that prepayments of principal
shall be made as provided in the Agreement.
This Revolving Note is one of the Revolving Notes referred to
in the Agreement, and is issued in conjunction with, and is entitled to
all of the rights, benefits and privileges provided in, the Agreement,
as now existing or as the same may from time to time be supplemented,
modified or amended. The Agreement, among other things, provides that
amounts outstanding hereunder from time to time may be repaid pursuant
to the Agreement and reborrowed from time to time pursuant to the
Agreement, and contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events.
The Bank may endorse on the schedule annexed to this Revolving
Note the date, amount and maturity of each Loan that it makes pursuant
to the Agreement, the purpose of the Loan, the amount of each payment of
principal that the Company makes with respect thereto and the source of
the funds from which each principal payment is made. The Company
irrevocably authorizes the Bank to endorse this Revolving Note, and the
Bank's record shall be conclusive absent manifest error; provided,
however, that the Bank's failure to make, or its error in making, a
notation on the attached schedule with respect to any Loan shall not
limit or otherwise affect the Company's obligations to the Bank hereunder
or under the Agreement.
Except as otherwise expressly provided in any Collateral
Document, this Revolving Note is secured by (1) each of the Mortgages
executed from time to time pursuant to the Agreement and covering an
Approved Parcel and (2) each of the Assignments of Leases and other
Collateral Documents executed from time to time pursuant to the
Agreement.
The Company waives presentment, demand, protest, notice of
protest, notice of nonpayment or dishonor and all other notices in
connection with the delivery, acceptance, performance, default or
enforcement of this Revolving Note. Time is of the essence hereof.
This Revolving Note has been executed by the undersigned in
the State of California, and shall be governed by, and construed in
accordance with, the laws of the State of California.
BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By ____________________________
____________________________
[Printed Name and Title]
EXHIBIT D
[Form of Property Use Certificate]
PROPERTY USE CERTIFICATE
To: Bank of America National Trust and Savings Association, as
Administrative Agent (the "Administrative Agent")
Pursuant to Section 4.1.6(8) of that certain Credit Agreement
(Secured Loan) (the "Agreement") dated as of February 26, 1999, between
Bedford Property Investors, Inc., a Maryland corporation (the "Company"),
the Banks that are parties thereto, and the Administrative Agent, the
Company hereby represents, warrants and certifies to the Administrative
Agent and the Banks that the improvements located on the Parcel commonly
known as ________________________________________ [property address]
contain the following amounts of net rentable area devoted to, or
available for, the following uses:
Office: _________ square feet of net rentable area
Retail: _________ square feet of net rentable area
Flexible
Industrial: _________ square feet of net rentable area
Industrial
or Warehouse
(other than
Flexible
Industrial): _________ square feet of net rentable area
Research and
Development: _________ square feet of net rentable area
(not including office space)
Total: _________ square feet of net rentable area
Capitalized terms used in this Certificate and not defined herein have
the meanings given to them in the Agreement.
Dated: ____________________
BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By ____________________________
____________________________
[Printed Name and Title]
EXHIBIT E
[Form of Opinion of Counsel]
_______________, 1999
The Banks Party to the Credit
Agreements Described Below
Bank of America National Trust and
Savings Association, as Administrative Agent
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxx
Re: $30,000,000 Secured Revolving Line of Credit (the
"Credit Line") from the several financial institutions
from time to time party to the Credit Agreement (as
defined below) (collectively, the "Banks") to Bedford
Property Investors, Inc., a Maryland corporation (the
"Company")
Gentlemen:
We have acted as counsel to the Company in connection with the
negotiation and execution of the documents evidencing the Credit Line,
and we are delivering this opinion to you at the Company's request. In
connection with our representation of the Company, we have examined all
of the following documents (collectively, the "Loan Documents"):
1. Credit Agreement (Secured Loan) dated as of February 26,
1999, among the Company, the Banks, and Bank of America National Trust
and Savings Association, as administrative agent for the Banks (in such
capacity, the "Administrative Agent") (the "Credit Agreement");
2. Revolving Note dated February 26, 1999, made by the
Company and payable to the order of Bank of America National Trust and
Savings Association ("Bank of America") in the maximum principal amount
of $30,000,000.00;
3. Deed of Trust With Assignment of Rents, Assignment of
Non-Disturbance Agreements, Security Agreement and Fixture Filing dated
as of February 26, 1999, executed by the Company for the benefit of the
Administrative Agent encumbering certain real property located in King
County, Washington;
4. Assignment of Leases dated as of February 26, 1999,
executed by the Company, as assignor, for the benefit of the
Administrative Agent, as assignee, assigning the leases relating to
certain real property located in King County, Washington;
5. Unsecured Indemnity Agreement dated as of February 26,
1999, made by the Company for the benefit of the Administrative Agent and
the Banks;
6. Secretary's Certificate executed by the Company's
secretary.
The documents referred to in numbered paragraphs 1 through 4,
above are hereinafter collectively referred to as the "Credit Documents."
We have also reviewed such other documents, certificates and
instruments as we deemed relevant, appropriate or necessary in rendering
the opinions contained herein. In rendering the opinions set forth
below, we have assumed the truth of the facts stated in the foregoing
documents, the genuineness of the signatures thereon and the completeness
thereof.
Based upon the foregoing, but subject to the limitations and
qualifications expressed below, we are of the opinion that:
1. The Company is a corporation duly organized, existing and
in good standing under the laws of the State of Maryland, and is duly
qualified to do business in the State of California. The Company has the
full right, power and authority to execute, deliver and perform its
obligations under the Credit Documents and all other documents and
agreements it may execute concurrently with the Credit Documents.
2. The Company's execution, delivery and performance of the
Credit Documents (i) have been duly authorized by all necessary corporate
action, (ii) do not conflict with any term or provision of the Company's
articles of incorporation or bylaws, and (iii) do not require the consent
or approval of any governmental authority or any other person or entity
to the extent such consent or approval is required by any provision of
the Company's articles of incorporation or bylaws.
3. The Credit Documents constitute legal, valid and binding
obligations of the Company, enforceable against the Company in accordance
with their respective terms.
The opinions expressed herein are subject to the effect of
bankruptcy, insolvency and other similar laws affecting the rights of
creditors generally, and general principles of equity.
Very truly yours,
EXHIBIT F
Approved Parcels
Washington Property
1. Adobe: Ground subleased real property located in King County,
Washington consisting of approximately 7.18 acres improved with two
office buildings containing approximately 297,228 square feet of net
rentable area. Appraised Value is $47,700,000.
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this ("Assignment
and Assumption") dated as of _______________, 199___ is made between (the
"Assignor") and ____________________________ (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Credit
Agreement (Secured Loan) dated as of February 26, 1999 (as amended,
amended and restated, modified, supplemented or renewed, the "Credit
Agreement"), among Bedford Property Investors, Inc., a Maryland
corporation (the "Company"), the several financial institutions from time
to time party thereto (including the Assignor, the "Banks"), and Bank of
America National Trust and Savings Association, as administrative agent
for the Banks, (the "Administrative Agent"). Any capitalized terms
defined in the Credit Agreement and not defined in this Assignment and
Assumption are used herein as defined in the Credit Agreement;
[WHEREAS, the Assignor is also a party to that certain
Co-Lender Agreement dated as of _______________ (as amended, amended and
restated, modified, supplemented or renewed, the "Co-Lender Agreement"),
between the Banks and the Administrative Agent;]
WHEREAS, as provided under the Credit Agreement, the Assignor
has committed to making Loans (the "Committed Loans") to the Company in
an aggregate amount not to exceed $___________ (the "Commitment");
WHEREAS, [the Assignor has made Committed Loans in the
aggregate principal amount of $_____________ to the Company] [no
Committed Loans are outstanding under the Credit Agreement]; and
WHEREAS, the Assignor wishes to assign to the Assignee [part
of the] [all] rights and obligations of the Assignor under the Credit
Agreement in respect of its Commitment, in an amount equal to
$____________ (the "Assigned Amount") on the terms and subject to the
conditions set forth herein and the Assignee wishes to accept assignment
of such rights and to assume such obligations from the Assignor on such
terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
1. Assignment and Assumption.
1.1 Subject to the terms and conditions of this Assignment
and Assumption, (i) the Assignor hereby sells, transfers and assigns to
the Assignee, and (ii) the Assignee hereby purchases, assumes and
undertakes from the Assignor, without recourse and without representation
or warranty (except as provided in this Assignment and Assumption) ___%
(the "Assignee's Percentage Share") of (A) the Commitment of the Assignor
and (B) all related rights, benefits, obligations, liabilities and
indemnities of the Assignor under and in connection with the Credit
Agreement, the Loan Documents and the Co-Lender Agreement.
1.2 With effect on and after the Effective Date (as defined
in Section 5 hereof), the Assignee shall be a party to the Credit
Agreement [and the Co-Lender Agreement] and succeed to all of the rights
and be obligated to perform all of the obligations of a Bank under the
Credit Agreement [and the Co-Lender Agreement], including the
requirements concerning confidentiality and the payment of
indemnification, with a Commitment in an amount equal to the Assigned
Amount. The Assignee agrees that it will perform in accordance with
their terms all of the obligations which it is required to perform as a
Bank under the Credit Agreement [or the Co-Lender Agreement]. It is the
intent of the parties hereto that the Commitment of the Assignor shall,
as of the Effective Date, be reduced by an amount equal to the Assigned
Amount and the Assignor shall relinquish its rights and be released from
its obligations under the Credit Agreement [and the Co-Lender Agreement]
to the extent such obligations have been assumed by the Assignee;
provided, however, the Assignor shall not relinquish its rights under
Section 10.5 of the Credit Agreement [or Section 9.4 of the Co-Lender
Agreement] to the extent such rights relate to the time prior to the
Effective Date.
1.3 After giving effect to the assignment and assumption set
forth herein, on the Effective Date the Assignor's Commitment will be
$__________.
1.4 After giving effect to the assignment and assumption set
forth herein, on the Effective Date the Assignee's Commitment will be
$__________.
2. Payments.
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor
on the Effective Date in immediately available funds an amount equal to
$ __________, representing the Assignee's Pro Rata Share of the Principal
amount of all Committed Loans.
(b) The [Assignor] [Assignee] further agrees to pay to the
Administrative Agent a processing fee in the amount specified in Section
10.8.1 of the Credit Agreement.
(c) Notwithstanding anything to the contrary contained in
Sections 2.8, 2.9 or 2.13 of the Credit Agreement, for purposes of this
Assignment and Assumption, (i) the Assignee shall be entitled to
$_____________ as its Pro Rata Share of the one-time commitment fee paid
by the Company pursuant to Section 2.9 of the Credit Agreement, and (ii)
the Administrative Agent shall remit interest payments on Committed Loans
outstanding to the Company with respect to the Assignee's Commitment on
the basis of an interest rate whose Applicable Margin (as defined in the
Credit Agreement) shall be defined as follows:
(i) with respect to Reference Rate Loans, ____ basis
points; and
(ii) with respect to LIBOR Rate Loans, ____ basis
points.
The Administrative Agent shall retain all additional amounts
paid by the Company as a commitment fee or as interest on the Committed
Loans outstanding to the Company with respect to the Assignee's
Commitment.
3. Reallocation of Payments.
Any interest, fees and other payments accrued to the Effective
Date with respect to the Commitment shall be for the account of the
Assignor. Subject to the provisions of Section 2(c) hereof, any
interest, fees and other payments accrued on and after the Effective Date
with respect to the Assigned Amount shall be for the account of the
Assignee. Each of the Assignor and the Assignee agrees that it will hold
in trust for the other party any interest, fees and other amounts which
it may receive to which the other party is entitled pursuant to the
preceding sentence and pay to the other party any such amounts which it
may receive promptly upon receipt.
4. Independent Credit Decision.
The Assignee (a) acknowledges that it has received a copy of
the Credit Agreement and the Schedules and Exhibits thereto, together
with copies of the most recent financial statements referred to in
Section 6.1 of the Credit Agreement, and such other documents and
information as it has deemed appropriate to make its own credit and legal
analysis and decision to enter into this Assignment and Assumption;
(b) acknowledges its familiarity with, and approves of, each of the
Approved Parcels (as defined in the Credit Agreement); and (c) agrees
that it will, independently and without reliance upon the Assignor, the
Administrative 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 and legal decisions in taking or not taking action under
the Credit Agreement [or the Co-Lender Agreement].
5. Effective Date; Notices.
(a) As between the Assignor and the Assignee, the effective
date for this Assignment and Assumption shall be __________, 199_ (the
"Effective Date"); provided that the following conditions precedent have
been satisfied on or before the Effective Date:
(i) this Assignment and Assumption shall be executed and
delivered by the Assignor and the Assignee;
(ii) the consent of the Company and the Administrative
Agent required for an effective assignment of the Assigned Amount by the
Assignor to the Assignee under Section 10.8.1 of the Credit Agreement
shall have been duly obtained and shall be in full force and effect as
of the Effective Date;
(iii) the Assignee shall pay to the Assignor all amounts
due to the Assignor under this Assignment and
Acceptance;
(iv) the Assignee shall have complied with Section
10.8.1 of the Credit Agreement (if applicable);
(v) the processing fee referred to in Section 2(b) hereof
and in Section 10.8.1 of the Credit Agreement shall have been paid
to the Administrative Agent; and
(vi) the Assignor shall have assigned and the Assignee
shall have assumed a percentage equal to the Assignee's Percentage Share
of the rights and obligations of the Assignor under the Credit Agreement.
(b) Promptly following the execution of this Assignment and
Assumption, the Assignor shall deliver to the Company and the
Administrative Agent for acknowledgment by the Administrative Agent, a
Notice of Assignment substantially in the form attached hereto as
Schedule 1.
6. Administrative Agent.
(a) The Assignee hereby appoints and authorizes the Assignor
to take such action as administrative agent on its behalf and to exercise
such powers under the Credit Agreement [and the Co-Lender Agreement] as
are delegated to the Administrative Agent by the Banks pursuant to the
terms of the Credit Agreement [or the Co-Lender Agreement].
(b) The Assignee shall assume no duties or obligations held
by the Assignor in its capacity as Administrative Agent under the Credit
Agreement.
7. Withholding Tax.
The Assignee (a) represents and warrants to the Banks, the
Administrative Agent and the Company that under applicable law and
treaties no tax will be required to be withheld by the Banks with respect
to any payments to be made to the Assignee hereunder, (b) agrees to
furnish (if it is organized under the laws of any jurisdiction other than
the United States or any state thereof) to the Administrative Agent and
the Company prior to the time that the Administrative Agent or Company
is required to make any payment of principal, interest or fees hereunder,
duplicate executed originals of either U.S. Internal Revenue Service Form
4224 or U.S. Internal Revenue Service Form 1001 (wherein the Assignee
claims entitlement to the benefits of a tax treaty that provides for a
complete exemption from U.S. federal income withholding tax an all
payments hereunder) and agrees to provide new Forms 4224 or 1001 upon the
expiration of any previously delivered form or comparable statements in
accordance with applicable U.S. law and regulations and amendments
thereto, duly executed and completed by the Assignee, and (c) agrees to
comply with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
8. Representations and Warranties.
(a) The Assignor represents and warrants to the Assignee that
(i) it is the legal and beneficial owner of the interest being assigned
by it hereunder and that such interest is free and clear of any Lien or
other adverse claim; (ii) it is duly organized and existing and it has
the full power and authority to take, and has taken, all action necessary
to execute and deliver this Assignment and Assumption and any other
documents required or permitted to be executed or delivered by it in
connection with this Assignment and Assumption and to fulfill its
obligations hereunder; (iii) no notices to, or consents, authorizations
or approvals of, any Person are required (other than any already given
or obtained) for its due execution, delivery and performance of this
Assignment and Assumption, and apart from any agreements or undertakings
or filings required by the Credit Agreement, no further action by, or
notice to, or filing with, any Person is required of it for such
execution, delivery or performance; and (iv) this Assignment and
Assumption has been duly executed and delivered by it and constitutes the
legal, valid and binding obligation of the Assignor, enforceable against
the Assignor in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and
other laws of general application relating to or affecting creditors'
rights and to general equitable principles.
(b) The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document
furnished pursuant thereto. The Assignor makes no representation or
warranty in connection with, and assumes no responsibility with respect
to, the solvency, financial condition or statements of the Company, or
the performance or observance by the Company, of any of its respective
obligations under the Credit Agreement or any other instrument or
document furnished in connection therewith.
(c) The Assignee represents and warrants to the Assignor that
(i) it is duly organized and existing and it has full power and authority
to take, and has taken, all action necessary to execute and deliver this
Assignment and Assumption and any other documents required or permitted
to be executed or delivered by it in connection with this Assignment and
Assumption, and to fulfill its obligations hereunder; (ii) no notices to,
or consents, authorizations or approvals of, any Person are required
(other than any already given or obtained) for its due execution,
delivery and performance of this Assignment and Assumption; and apart
from any agreements or undertakings or filings required by the Credit
Agreement, no further action by, or notice to, or filing with, any Person
is required of it for such execution, delivery or performance; (iii) this
Assignment and Assumption has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignee,
enforceable against the Assignee in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or
affecting creditors' rights and to general equitable principles; and (iv)
it is an Eligible Assignee.
9. Further Assurances.
The Assignor and the Assignee each hereby agree to execute and
deliver such other instruments, and to take such other action, as either
party may reasonably request in connection with the transactions
contemplated by this Assignment and Assumption, including the delivery
of any notices or other documents or instruments to the Company or the
Administrative Agent, which may be required in connection with the
assignment and assumption contemplated hereby.
10. Miscellaneous.
(a) Any amendment or waiver of any provision of this
Assignment and Assumption shall be in writing and signed by the parties
hereto. No failure or delay by either party hereto in exercising any
right, power or privilege hereunder shall operate as a waiver thereof and
any waiver of any breach of the provisions of this Assignment and
Assumption shall be without prejudice to any rights with respect to any
other or further breach thereof.
(b) All payments made hereunder shall be made without any
set-off or counterclaim.
(c) The Assignor and the Assignee shall each pay its own
costs and expenses incurred in connection with the negotiation,
preparation, execution and performance of this Assignment and Assumption.
(d) This Assignment and Assumption may be executed in any
number of counterparts, and all of such counterparts taken together shall
be deemed to constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ASSUMPTION SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. The
Assignor and the Assignee each irrevocably submits to the non-exclusive
jurisdiction of any State or Federal court sitting in California over any
suit, action or proceeding arising out of or relating to this Assignment
and Assumption and irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such California State
or Federal court. Each party to this Assignment and Assumption hereby
irrevocably waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH THIS ASSIGNMENT AND ASSUMPTION, THE CREDIT
AGREEMENT, THE CO-LENDER AGREEMENT, ANY RELATED DOCUMENTS AND AGREEMENTS
OR ANY COURSE OF CONDUCT, COURSE OF DEALING OR STATEMENTS (WHETHER ORAL
OR WRITTEN).
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
this Assignment and Assumption to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By: _______________________________________
Title: _______________________________________
By: _______________________________________
Title: _______________________________________
Address:
[ASSIGNEE]
By: _______________________________________
Title: _______________________________________
By: _______________________________________
Title: _______________________________________
Address:
SCHEDULE 1
TO EXHIBIT H
NOTICE OF ASSIGNMENT AND ASSUMPTION
__________, 199_
Bank of America National Trust
and Savings Association, as Administrative Agent
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxx
Bedford Property Investors, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: _______________
Gentlemen:
We refer to the Credit Agreement (Secured Loan) dated as of
February 26, 1999 (as amended, amended and restated, modified,
supplemented or renewed from time to time the "Credit Agreement" among
Bedford Property Investors, Inc., a Maryland corporation (the "Company"),
the Banks referred to therein and Bank of America National Trust and
Savings Association, as administrative agent for the Banks (the
"Administrative Agent"). Terms defined in the Credit Agreement are used
herein as therein defined.
1. We hereby give you notice of, and request your consent
to, the assignment by _______________________ (the "Assignor") to
_____________ (the "Assignee") of ___% of the right, title and interest
of the Assignor in and to the Credit Agreement (including, without
limitation, the right, title and interest of the Assignor in and to the
Commitments of the Assignor and all outstanding Loans made by the
Assignor) pursuant to the Assignment and Assumption Agreement attached
hereto (the "Assignment and Assumption"). Before giving effect to such
assignment the Assignor's Commitment is $__________ [.] [and the
aggregate amount of its outstanding Loans is $ __________.]
2. The Assignee agrees that, upon receiving the consent of
the Administrative Agent and, if applicable, the Company to such
assignment, the Assignee will be bound by the terms of the Credit
Agreement as fully and to the same extent as if the Assignee were the
Bank originally holding such interest in the Credit Agreement.
3. The following administrative details apply to the
Assignee:
(A) Notice Address:
Assignee name: ___________________________
Address: ___________________________
___________________________
___________________________
Attention: ___________________________
Telephone: ___________________________
Telecopier: ___________________________
(B) Assignee's Payment Instructions to the Administrative Agent:
Account Number: ___________________________
At: ___________________________
___________________________
___________________________
Reference: ___________________________
Attention: ___________________________
4. You are entitled to rely upon the representations,
warranties and covenants of each of the Assignor and the Assignee
contained in the Assignment and Assumption.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
this Notice of Assignment and Assumption to be executed by their
respective duly authorized officials, officers or agents as of the date
first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By _______________________________________
_______________________________________
[Printed Name and Title]
By _______________________________________
_______________________________________
[Printed Name and Title]
[NAME OF ASSIGNEE]
By _______________________________________
_______________________________________
[Printed Name and Title]
By _______________________________________
_______________________________________
[Printed Name and Title]
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
BEDFORD PROPERTY INVESTORS, INC.,
a Maryland corporation
By ____________________________
____________________________
[Printed Name and Title]
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative Agent
By _______________________________
_______________________________
[Printed Name and Title]
Schedule 5.5
Litigation
None, outside of ordinary litigation related to the collection of
delinquent rent.
Schedule 5.11
Material Indebtedness Not Disclosed
on 12/31/97 or 9/30/98 Financial Statements
None.
Schedule 5.12
Environmental Disclosures
None.
Schedule 5.16
(a) List of Subsidiaries
ICMPI (Scottsdale), Inc., a Delaware corporation
ICMPI (Irvine), Inc., a Delaware corporation
ICMPI (Concord Diablo 3), Inc., a Delaware corporation
ICMPI (Concord Diablo 8), Inc., a Delaware corporation
ICMPI (Concord Xxxxx 18), Inc., a Delaware corporation
ICMPI (Overland Park), Inc., a Delaware corporation
ICMPI (Lenexa), Inc., a Delaware corporation
ICMPI (Xxxxxxx), Inc., a Delaware corporation
ICMPI (San Antonio), Inc., a Delaware corporation
(b) Permitted Partnerships
Bedford Realty Partners, L.P., a California limited partnership
(c) Other Equity Investments
ICMPI (Scottsdale), Inc., a Delaware corporation
ICMPI (Irvine), Inc., a Delaware corporation
ICMPI (Concord Diablo 3), Inc., a Delaware corporation
ICMPI (Concord Diablo 8), Inc., a Delaware corporation
ICMPI (Concord Xxxxx 18), Inc., a Delaware corporation
ICMPI (Overland Park), Inc., a Delaware corporation
ICMPI (Lenexa), Inc., a Delaware corporation
ICMPI (Xxxxxxx), Inc., a Delaware corporation
ICMPI (San Antonio), Inc., a Delaware corporation
CREDIT AGREEMENT
(Secured Loan)
Among
BEDFORD PROPERTY INVESTORS, INC.,
THE BANKS PARTY HERETO,
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent for the Banks
NATIONSBANC XXXXXXXXXX SECURITIES LLC
Lead Arranger
Dated as of February 26, 1999
TABLE OF CONTENTS
Page
1. Definitions. . . . . . . . . . . . . . . . . . . . . . .1
1.1 Defined Terms. . . . . . . . . . . . . . . . . . .1
1.2 Other Interpretive Provisions. . . . . . . . . . 22
1.2.1 Use of Defined Terms. . . . . . . . . . . 22
1.2.2 Certain Common Terms. . . . . . . . . . . 22
1.2.3 Accounting Principles . . . . . . . . . . 23
2. The Credit . . . . . . . . . . . . . . . . . . . . . . 23
2.1 Amount and Terms of Commitment . . . . . . . . . 23
2.2 Loan Accounts. . . . . . . . . . . . . . . . . . 24
2.3 Procedure for Obtaining Credit . . . . . . . . . 24
2.4 Conversion and Continuation Elections. . . . . . 25
2.5 Voluntary Termination or Reduction of Commitment 26
2.6 Principal Payments . . . . . . . . . . . . . . . 27
2.6.1 Optional Repayments . . . . . . . . . . . 27
2.6.2 Mandatory Repayments. . . . . . . . . . . 27
2.6.3 Repayment at Maturity . . . . . . . . . . 28
2.7 Extension of Maturity Date . . . . . . . . . . . 28
2.8 Interest . . . . . . . . . . . . . . . . . . . . 29
2.8.1 Accrual Rate. . . . . . . . . . . . . . . 29
2.8.2 Payment . . . . . . . . . . . . . . . . . 29
2.8.3 Default Interest. . . . . . . . . . . . . 29
2.8.4 Maximum Legal Rate. . . . . . . . . . . . 30
2.9 Fees . . . . . . . . . . . . . . . . . . . . . . 30
2.10 Computation of Fees and Interest . . . . . . . . 30
2.11 Payments by the Company. . . . . . . . . . . . . 31
2.12 Payments by the Banks to the Administrative Agent31
2.13 Sharing of Payments, Etc . . . . . . . . . . . . 32
2.14 Security; Appraisal of Approved Parcels. . . . . 33
2.15 Release of Lien on Approved Parcel . . . . . . . 33
2.15.1 Release Conditions. . . . . . . . . . . 33
2.15.2 Application of Release Price. . . . . . 34
2.16 Collateral Documents . . . . . . . . . . . . . . 34
3. Taxes, Yield Protection and Illegality . . . . . . . . 34
3.1 Taxes. . . . . . . . . . . . . . . . . . . . . . 34
3.2 Illegality . . . . . . . . . . . . . . . . . . . 34
3.3 Increased Costs and Reduction of Return. . . . . 35
3.4 Funding Losses . . . . . . . . . . . . . . . . . 36
3.5 Inability to Determine Rates . . . . . . . . . . 37
3.6 Certificate of Bank. . . . . . . . . . . . . . . 37
3.7 Survival . . . . . . . . . . . . . . . . . . . . 37
4. Conditions Precedent . . . . . . . . . . . . . . . . . 38
4.1 Conditions to Approving Parcels. . . . . . . . . 38
4.1.1 Fee Ownership. . . . . . . . . . . . . . 38
4.1.2 Satisfactory Parcel. . . . . . . . . . . 38
4.1.3 No Hazardous Materials . . . . . . . . . 38
4.1.4 Appraised Value. . . . . . . . . . . . . 38
4.1.5 No Liens . . . . . . . . . . . . . . . . 38
4.1.6 Deliveries to the Administrative Agent . 38
4.1.7 Recording of the Mortgage. . . . . . . . 40
4.1.8 Title Insurance. . . . . . . . . . . . . 40
4.1.9 Filing of Financing Statements . . . . . 41
4.1.10 Perfection of Liens . . . . . . . . . . 41
4.1.11 Tax Reporting Service . . . . . . . . . 41
4.1.12 Costs . . . . . . . . . . . . . . . . . 41
4.1.13 Expenses. . . . . . . . . . . . . . . . 41
4.2 Conditions of Initial Loan . . . . . . . . . . . 41
4.2.1 Deliveries to the Administrative Agent . 41
4.2.2 Initial Approved Parcel. . . . . . . . . 42
4.2.3 Payment of Expenses. . . . . . . . . . . 43
4.2.4 Payment of Fees. . . . . . . . . . . . . 43
4.3 Conditions to All Borrowings . . . . . . . . . . 43
4.3.1 Initial Approved Parcel. . . . . . . . . 43
4.3.2 Notice of Borrowing. . . . . . . . . . . 43
4.3.3 Continuation of Representations and Warranties43
4.3.4 No Existing Default. . . . . . . . . . . 43
4.3.5 No Future Advance Notice . . . . . . . . 43
4.3.6 Further Assurances . . . . . . . . . . . 43
4.3.7 Title Insurance. . . . . . . . . . . . . 44
5. Representations and Warranties . . . . . . . . . . . . 44
5.1 Existence and Power. . . . . . . . . . . . . . . 44
5.2 Corporate Authorization; No Contravention. . . . 44
5.3 Governmental Authorization . . . . . . . . . . . 45
5.4 Binding Effect . . . . . . . . . . . . . . . . . 45
5.5 Litigation . . . . . . . . . . . . . . . . . . . 45
5.6 No Default . . . . . . . . . . . . . . . . . . . 45
5.7 ERISA Compliance . . . . . . . . . . . . . . . . 46
5.8 Use of Proceeds; Margin Regulations. . . . . . . 46
5.9 Title to Properties. . . . . . . . . . . . . . . 46
5.10 Taxes. . . . . . . . . . . . . . . . . . . . . . 46
5.11 Financial Condition. . . . . . . . . . . . . . . 47
5.12 Environmental Matters. . . . . . . . . . . . . . 47
5.13 Regulated Entities . . . . . . . . . . . . . . . 48
5.14 No Burdensome Restrictions . . . . . . . . . . . 48
5.15 Solvency . . . . . . . . . . . . . . . . . . . . 49
5.16 Subsidiaries . . . . . . . . . . . . . . . . . . 49
5.17 Brokers; Transaction Fees. . . . . . . . . . . . 49
5.18 Insurance. . . . . . . . . . . . . . . . . . . . 49
5.19 Full Disclosure. . . . . . . . . . . . . . . . . 49
5.20 Year 2000 Compliance . . . . . . . . . . . . . . 49
6. Affirmative Covenants. . . . . . . . . . . . . . . . . 50
6.1 Financial Statements . . . . . . . . . . . . . . 50
6.2 Certificates; Other Information. . . . . . . . . 51
6.3 Notices. . . . . . . . . . . . . . . . . . . . . 52
6.4 Preservation of Corporate Existence, Etc . . . . 53
6.5 Maintenance of Property. . . . . . . . . . . . . 54
6.6 Insurance. . . . . . . . . . . . . . . . . . . . 54
6.7 Payment of Obligations . . . . . . . . . . . . . 55
6.8 Compliance with Laws . . . . . . . . . . . . . . 55
6.9 Inspection of Property and Books and Records . . 55
6.10 Environmental Laws . . . . . . . . . . . . . . . 56
6.11 Use of Proceeds. . . . . . . . . . . . . . . . . 56
6.12 Solvency . . . . . . . . . . . . . . . . . . . . 56
6.13 Further Assurances . . . . . . . . . . . . . . . 56
7. Negative Covenants . . . . . . . . . . . . . . . . . . 57
7.1 Limitation on Liens. . . . . . . . . . . . . . . 57
7.2 Consolidations and Mergers . . . . . . . . . . . 57
7.3 Loans and Investments. . . . . . . . . . . . . . 58
7.4 Limitation on Indebtedness . . . . . . . . . . . 58
7.5 Transactions with Affiliates . . . . . . . . . . 58
7.6 Use of Proceeds. . . . . . . . . . . . . . . . . 59
7.7 Contingent Obligations . . . . . . . . . . . . . 59
7.8 Creation of Subsidiaries . . . . . . . . . . . . 59
7.9 Compliance with ERISA. . . . . . . . . . . . . . 59
7.10 Debt to Gross Assets Ratio . . . . . . . . . . . 60
7.11 Debt Service Coverage Ratio. . . . . . . . . . . 60
7.12 Change in Business . . . . . . . . . . . . . . . 60
7.13 Accounting Changes . . . . . . . . . . . . . . . 60
7.14 Limitation on Dividends. . . . . . . . . . . . . 60
7.15 Development Activity . . . . . . . . . . . . . . 61
7.16 Undeveloped Land . . . . . . . . . . . . . . . . 61
7.17 Tangible Net Worth . . . . . . . . . . . . . . . 61
8. Events of Default and Remedies . . . . . . . . . . . . 62
8.1 Event of Default . . . . . . . . . . . . . . . . 62
8.1.1 Non-Payment. . . . . . . . . . . . . . . 62
8.1.2 Representation or Warranty . . . . . . . 62
8.1.3 Specific Defaults. . . . . . . . . . . . 62
8.1.4 Other Defaults . . . . . . . . . . . . . 62
8.1.5 Cross-Default. . . . . . . . . . . . . . 62
8.1.6 Insolvency; Voluntary Proceedings. . . . 62
8.1.7 Insolvency; Involuntary Proceedings. . . 63
8.1.8 ERISA Plans. . . . . . . . . . . . . . . 63
8.1.9 Monetary Judgments . . . . . . . . . . . 63
8.1.10 Adverse Change. . . . . . . . . . . . . 63
8.1.11 Management Changes. . . . . . . . . . . 64
8.1.12 Preferred Dividend Defaults . . . . . . 64
8.1.13 Early Termination of a Specified Swap Contract64
8.2 Remedies . . . . . . . . . . . . . . . . . . . . 64
8.2.1 Termination of Commitment to Lend. . . . 64
8.2.2 Acceleration of Loans. . . . . . . . . . 64
8.2.3 Exercise of Rights and Remedies. . . . . 64
8.3 Rights Not Exclusive . . . . . . . . . . . . . . 65
8.4 Specified Swap Contract Remedies . . . . . . . . 65
8.5 Subordination of Swap Obligations. . . . . . . . 66
9. The Administrative Agent . . . . . . . . . . . . . . . 67
9.1 Appointment and Authorization of the Administrative Agent67
9.2 The Administrative Agent's Powers. . . . . . . . 67
9.3 Limitation on the Administrative Agent's Duties. 68
9.4 Successor Administrative Agent . . . . . . . . . 68
10. Miscellaneous. . . . . . . . . . . . . . . . . 69
10.1 Amendments and Waivers. . . . . . . . . . 69
10.2 Notices . . . . . . . . . . . . . . . . . 70
10.3 No Waiver; Cumulative Remedies. . . . . . 70
10.4 Costs and Expenses. . . . . . . . . . . . 71
10.5 Indemnity . . . . . . . . . . . . . . . . 71
10.6 Marshaling; Payments Set Aside. . . . . . 72
10.7 Successors and Assigns. . . . . . . . . . 72
10.8 Assignments, Participations, Confidentiality72
10.8.1 Assignments. . . . . . . . . . . 72
10.8.2 Effect of Assignment . . . . . . 73
10.8.3 Participations . . . . . . . . . 73
10.8.4 Pledge to Federal Reserve Bank . 74
10.8.5 Confidentiality. . . . . . . . . 74
10.9 Counterparts. . . . . . . . . . . . . . . 74
10.10 Severability . . . . . . . . . . . . 75
10.11 No Third Parties Benefitted. . . . . 75
10.12 Time . . . . . . . . . . . . . . . . 75
10.13 Governing Law. . . . . . . . . . . . 75
10.14 Arbitration; Reference . . . . . . . 75
10.15 Notice of Claims; Claims Bar . . . . 76
10.16 Entire Agreement . . . . . . . . . . 77
10.17 Interpretation . . . . . . . . . . . 77
10.18 Existing Approved Parcels. . . . . . 77
Exhibit A Form of Borrowing Notice
Exhibit B Form of Conversion/Continuation Notice
Exhibit C Form of Revolving Note
Exhibit D Form of Property Use Certificate
Exhibit E Form of Opinion of Counsel
Exhibit F List of Approved Parcels
Exhibit G Form of Assignment and Assumption Agreement
