Exhibit 10.6
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LOAN AGREEMENT
among
CARRAMERICA REALTY CORPORATION
and
CARRAMERICA REALTY, L.P.
and
THE CHASE MANHATTAN BANK
Dated as of April 18, 2000
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS...............................................................1
Section 1.01 Definitions...............................................................1
SECTION 2. AMOUNT AND TERMS OF ADVANCES..............................................6
Section 2.01 Advances...........................................................6
Section 2.02 The Note...........................................................6
Section 2.03 Interest...........................................................6
Section 2.04 Fees...............................................................7
Section 2.05 Principal Payments.................................................8
Section 2.06 Voluntary Prepayments..............................................8
Section 2.07 Application of Payments and Prepayments............................8
Section 2.08 Method and Place of Payment........................................9
Section 2.09 Interest Rate Unascertainable, Increased Costs, Illegality.........9
Section 2.10 Funding Losses....................................................10
Section 2.11 Increased Capital.................................................11
Section 2.12 Taxes.............................................................11
Section 2.13 Decision Making by Lender.........................................12
SECTION 3. CONDITIONS PRECEDENT.....................................................12
Section 3.01 Conditions Precedent to Initial Advance of the Loan...............12
Section 3.02 Acceptance of Advance Proceeds....................................13
Section 3.03 Documents.........................................................13
SECTION 4. REPRESENTATIONS AND WARRANTIES...........................................13
Section 4.01 Representations and Warranties....................................13
SECTION 5. COVENANTS................................................................14
Section 5.01 Covenants.........................................................14
SECTION 6. EVENTS OF DEFAULT........................................................14
Section 6.01 Events of Default.................................................14
SECTION 7. REMEDIES.................................................................14
Section 7.01 General Rights and Remedies.......................................14
SECTION 8. MISCELLANEOUS PROVISIONS.................................................15
Section 8.01 Payment of Lender's Expenses, Indemnity, etc......................15
Section 8.02 Notices...........................................................15
Section 8.03 Borrower's Assignment.............................................16
Section 8.04 Participations and Securitization.................................16
Section 8.05 Amendments........................................................18
Section 8.06 No Waiver; Remedies Cumulative....................................18
Section 8.07 Governing Law.....................................................19
Section 8.08 Joint and Several.................................................19
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Section 8.09 Successors and Assigns............................................19
Section 8.10 Counterparts......................................................19
Section 8.11 Effectiveness.....................................................19
Section 8.12 Headings Descriptive..............................................19
Section 8.13 Severability......................................................19
Section 8.14 Survival..........................................................19
Section 8.15 Limitation of Liability...........................................19
Section 8.16 WAIVER OF TRIAL BY JURY...........................................20
Section 8.17 No Joint Venture..................................................20
Section 8.18 No Other Agreements...............................................20
Section 8.19 Controlling Document; Construction of Documents...................21
EXHIBIT A
ii
THIS LOAN AGREEMENT (this "Agreement"), dated as of April 18,
2000, is made among CARRAMERICA REALTY CORPORATION, a Maryland corporation (the
"Corporation"), and CARRAMERICA REALTY, L.P., a Delaware limited partnership
(the "Partnership"), each having an address at 0000 X Xxxxxx, X.X., Xxxxxxxxxx,
X.X. 00000 (the Corporation and the Partnership are hereinafter referred to,
collectively and individually, as the case may be, as "Borrower" or
"Borrowers"), and THE CHASE MANHATTAN BANK, a New York banking corporation,
having an office at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter referred to as "Lender").
SECTION 1. DEFINITIONS
Section 1.01 Definitions. As used herein, the following terms shall
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have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural number the singular.
"Advance" shall mean each advance of the principal balance of the Loan.
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"Advance Date" shall mean the date on which an Advance is made.
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"Affiliate" shall mean, with reference to a specified Person, any
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Person that directly or indirectly through one or more intermediaries Controls
or is Controlled by or is under common Control with the specified Person and any
Subsidiaries of such specified Person.
"Applicable Laws" shall mean all existing and future federal, state and
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local laws, statutes, orders, ordinances, rules, and regulations or orders,
writs, injunctions or decrees of any court affecting Borrower.
"Bankruptcy Code" shall mean Title 11 of the United States Code
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entitled "Bankruptcy", as amended from time to time, and any successor statute
or statutes and all rules and regulations from time to time promulgated
thereunder, and any comparable foreign laws relating to bankruptcy, insolvency
or creditors' rights.
"Base Rate" shall mean, on any particular date, a rate per annum equal
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to the higher of (a) the Federal Funds Effective Rate plus 1/2% or (b) the rate
of interest publicly announced by Lender as its prime rate in effect on such
day, with any change in said prime rate to be effective as of the date of such
change; however, if Lender does not announce its prime rate or ceases to
announce a prime rate, the prime rate shall mean, on any particular date, a rate
per annum equal to the rate of interest published in The Wall Street Journal as
the "prime rate", as in effect on such day, with any change in the Base Rate
resulting from a change in said prime rate to be effective as of the date of the
relevant change in said prime rate; provided, however, that if more than one
prime rate is published in The Wall Street Journal for a day, the average of the
prime rates shall be used; and provided further that the prime rate (or the
average of the prime rates) will be rounded to the nearest 1/16 of 1%.
In the event that the wall street journal should cease or temporarily
interrupt publication, then the prime rate shall mean the daily average prime
rate published in another business newspaper, or business section of a
newspaper, of national standing chosen by lender. If the wall street journal
resumes publication, the substitute index will immediately be replaced by the
prime rate published in the wall street journal.
In the event that a prime rate is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then Lender shall select a comparable interest rate index which is readily
available to Borrower and verifiable by Borrower but is beyond the control of
Lender. Lender shall give Borrower prompt written notice of its choice of a
substitute index and when the change became effective.
Such substitute index will also be rounded to the nearest 1/16 of 1%
or, if there is no nearest 1/16 of 1%, to the next higher 1/16 of 1%.
The determination of the Base Rate by Lender shall be conclusive absent
manifest error.
"Base Rate Margin" means 0%.
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"Base Rate Portion" shall mean the portion of the Loan made
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and/or being maintained at a rate of interest based upon the Base Rate.
"Borrower" shall have the meaning provided in the preamble of this
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Agreement and any successor Borrower expressly permitted hereunder.
"Borrowing" shall mean a borrowing from Lender on a given date (or
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resulting from conversions on a given date).
"Business Day" shall mean for all purposes any day excluding Saturday,
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Sunday and any day which shall be in New York City a legal holiday or a day on
which Lender is authorized or required by law or other government actions to
close, and when used in connection with a Eurodollar Portion, shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Change in Law" shall have the meaning provided in Section 2.12(c).
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"Closing Date" shall mean the date of this Agreement.
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"Code" shall mean the Internal Revenue Code of 1986, as amended from
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time to time, and any successor statute, together with all rules and regulations
from time to time promulgated thereunder.
"Control" shall mean in (a) in the case of a corporation, ownership,
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directly or through ownership of other entities, of at least five percent (5%)
of all the voting stock
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(exclusive of stock which is voting only as required by applicable law or in the
event of nonpayment of dividends and pays dividends only on a nonparticipating
basis at a fixed or floating rate), and (b) in the case of any other entity,
ownership, directly or through ownership of other entities, of at least five
percent (5%) of all of the beneficial equity interests therein (calculated by a
method that excludes from equity interests, ownership interests that are
nonvoting (except as required by applicable law or in the event of nonpayment of
dividends or distributions) and pay dividends or distributions only on a
non-participating basis at a fixed or floating rate) or, in any case (c) the
power directly or indirectly, to direct or control, or cause the direction of,
the management policies of another Person, whether through the ownership of
voting securities, general partnership interests, common directors, trustees,
officers by contract or otherwise. The terms "controlled" and "controlling"
shall have meanings correlative to the foregoing definition of "Control."
"Credit Agreement" shall mean that certain Fourth Amended and Restated
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Credit Agreement dated as of August 27, 1998 among Borrowers, Xxxx Realty L.P.,
the Banks and the Agents (each as defined therein).
"Credit Agreement Covenants" shall have the meaning provided in Section
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5.01.
"Credit Agreement Loan Documents" shall have the meaning provided in
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Section 6.01(b).
"Credit Agreement Representations & Warranties" shall have the meaning
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provided in Section 4.01.
"Default" shall mean any event, act or condition which, with the giving
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of notice or lapse of time, or both, would constitute an Event of Default.
"Default Rate" shall mean the rate per annum determined by adding four
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percent (4%) per annum to the sum of the Base Rate Margin and the Base Rate as
from time to time in effect.
"Eurocurrency Reserve Requirements" shall mean, with respect to each
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day during an Interest Period for Eurodollar Portions, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Federal Reserve Board or other governmental authority or agency having
jurisdiction with respect thereto for determining the maximum reserves
(including, without limitation, basic, supplemental, marginal and emergency
reserves) for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Federal Reserve Board Regulation D) maintained by a member bank
of the Federal Reserve System.
"Eurodollar Portions" shall mean each portion of the Loan made and/or
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being maintained at a rate of interest calculated by reference to the Eurodollar
Rate.
"Eurodollar Rate" shall mean, for any Interest Period, the rate per
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annum (rounded upwards, if necessary, to the next higher one hundred-thousandth
of a percentage point) for deposits in U.S. Dollars for a period equal to one
month which appears on the Telerate Page
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3750 as of 11:00 a.m. (London, England time) two (2) Business Days prior to the
first day of such Interest Period. The determination of the Eurodollar Rate by
Lender shall be conclusive absent manifest error.
"Eurodollar Rate Margin" shall mean 1%.
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"Event of Default" shall have the meaning provided in Section 6.
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"Facility Amount" shall mean U.S. $50,000,000.00.
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"Federal Funds Effective Rate" shall mean, for any day, the weighted
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average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
quotations, for the day, of such transactions received by Lender from three (3)
Federal funds brokers of recognized standing selected by it.
"Funding Costs" shall have the meaning provided in Section 2.10.
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"Funding Fee" shall have the meaning provided in Section 2.04(a).
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"Increased Capital Costs" shall have the meaning provided in Section
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2.11.
"Indemnitee" shall have the meaning provided in Section 8.01(b).
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"Initial Advance" shall mean the initial Advance of the Loan.
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"Interest Period" shall mean for any Eurodollar Portion, a one month
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period commencing on the date of the making of the Advance (and the date of any
conversion of all or a portion of the Loan from the Base Rate Portion) and each
Interest Period occurring thereafter in respect of such Eurodollar Portion shall
commence on the date next succeeding the date on which the next preceding
Interest Period expires. If any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day. If any Interest Period begins on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of such
calendar month. No Interest Period in respect of any Eurodollar Portion shall
extend beyond the Maturity Date.
"Interest Shortfall Payment" shall have the meaning provided in Section
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2.06.
"Lender" shall have the meaning provided in the preamble of this
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Agreement.
"Loan" shall have the meaning provided in Section 2.01.
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"Loan Documents" shall mean this Agreement, the Note and any other
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documents or instruments executed in connection with an Advance.
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"Maturity Date" shall mean October 17, 2000 or such earlier date on
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which the principal balance of the Loan and all other sums due in connection
with the Loan shall be due as a result of the acceleration of the Loan.
"Maximum Legal Rate" shall mean the maximum nonusurious interest rate,
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if any, that at any time or from time to time may be contracted for, taken,
reserved, charged or received on the indebtedness evidenced by the Note and as
provided for herein or the other Loan Documents, under the laws of such state or
states whose laws are held by any court of competent jurisdiction to govern the
interest rate provisions of the Loan.
"Note" shall have the meaning provided in Section 2.02.
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"Notice of Borrowing" shall have the meaning provided in Section
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2.01(e).
"Obligations" shall mean all payment, performance and other
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obligations, liabilities and indebtedness of every nature of Borrower from time
to time owing to Lender under or in connection with this Agreement or any other
Loan Document.
"Origination Fee" shall have the meaning provided in Section 2.04(a).
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"Participant" shall have the meaning provided in Section 8.04(a).
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"Person" shall mean and include any individual, partnership, joint
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venture, firm, corporation, association, company, trust or other enterprise or
any government or political subdivision or agency, department or instrumentality
thereof.
"Prepayment Date" shall have the meaning provided in Section 2.06.
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"Prepayment Procedures" shall have the meaning provided in Section
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2.06.
"Scheduled Payment Date" shall mean, with respect to each Advance, the
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last day of the Interest Period applicable to said Advance.
"Taxes" shall have the meaning provided in Section 2.12(a).
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"Telerate Page 3750" means the display designated as "Page 3750" on the
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Telerate Service (or such other page as may replace Page 3750 on that service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for U.S. Dollar deposits).
"Unused Facility Fee" shall have the meaning provided in Section
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2.04(a).
"Voluntary Prepayment" shall have the meaning provided in Section 2.06.
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SECTION 2. AMOUNT AND TERMS OF ADVANCES
Section 2.01 Advances. (a) Subject to and upon the terms and conditions
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herein set forth, Lender agrees, from time to time on and after the Closing Date
and prior to the Maturity Date, to fund to Borrower (the "Loan") Advances, which
Advances shall not exceed in the aggregate the Facility Amount.
(b) Advances may be voluntarily prepaid pursuant to Section 2.06, but
in no event shall any prepaid Advance be re-advanced. All outstanding Advances
shall mature on the Maturity Date, without further action on the part of Lender.
(c) Each Advance shall be in the minimum amount of One Million Dollars
(U.S. $1,000,000.00), and any Advance in excess thereof must be in integral
multiples of One Hundred Thousand Dollars (U.S. $100,000.00). No Advance shall
be made after the Maturity Date. There shall be no more than five (5) Eurodollar
Portions outstanding at any one time.
(d) No Advance shall be made if any law or regulation shall have been
adopted, any order, judgment or decree of any governmental authority shall have
been issued, and/or any litigation shall be pending or threatened, which in the
judgment of Lender would enjoin, prohibit or restrain, or impose or result in
the imposition of any material adverse condition upon, the making of the Advance
or Borrower's obligation to pay (or Lender's rights to receive payment of) the
Loan and the other Obligations.
(e) Whenever Borrower desires an Advance hereunder, it shall give
Lender at Lender's office prior to 10:00 A.M., New York City time, telex or
facsimile notice of each Advance to be made hereunder, at least three (3)
Business Days prior to such Advance being made. Each such notice (a "Notice of
Borrowing") (i) shall be irrevocable, (ii) shall be executed by Borrower, (iii)
shall specify (y) the aggregate principal amount of the requested Advance and
(z) the date of Borrowing (which shall be a Business Day), (iv) shall certify
that, taking into account the amount of the requested Advance, no Default or
Event of Default has occurred and is continuing and (v) shall be in
substantially the form annexed hereto as Exhibit A.
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(f) No later than 2:00 p.m., New York City time on the date specified
in each Notice of Borrowing, provided all conditions precedent to the making of
such Advance have been complied with, Lender will make available to Borrower, by
disbursing to or at the direction of Borrower, the amount of the requested
Advance.
Section 2.02 The Note. Borrower's obligation to pay the principal of,
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and interest on, the Loan is evidenced by that certain promissory note of even
date herewith made by Borrower to Lender (such note, together with all
extensions, renewals, modifications, substitutions and amendments thereof shall
be referred to as the "Note").
Section 2.03 Interest. (a) Borrower shall pay interest in respect of
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the outstanding principal amount of the Loan at a rate per annum which shall be
equal to the sum of
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(i) the Eurodollar Rate Margin plus the Eurodollar Rate, or (ii) if the
Eurodollar Rate is not available pursuant to Section 2.09 hereof, the Base Rate
Margin plus the Base Rate.
(b) In the event that, and for so long as, any Event of Default shall
have occurred and be continuing, the outstanding principal amount of the Loan
and, to the extent permitted by law, overdue interest in respect of the Loan,
shall bear interest at the Default Rate, calculated from the date of such Event
of Default.
(c) Interest on each Advance shall accrue from and including the date
of each Borrowing through and including the date of any repayment thereof and
Borrower shall pay such interest (i) monthly in arrears on each Scheduled
Payment Date, (ii) on the date of any prepayment (on the amount prepaid) and
(iii) on the Maturity Date (whether by acceleration or otherwise).
(d) Interest on the outstanding principal balance of the Loan shall be
calculated on the basis of a three hundred sixty (360) day year based on the
actual number of days elapsed.
(e) If the last Interest Period during the term of this Note which
fully complies with the provisions of this Agreement shall end prior to the
Maturity Date, the entire outstanding principal balance for the Loan shall, for
the remainder of the term of this Note, at the election of the Lender, either
bear interest at the Base Rate Margin plus the Base Rate or at the Eurodollar
Rate Margin plus the Eurodollar Rate determined in accordance with the
provisions of this Agreement, it being agreed that the Eurodollar Rate
applicable to such period shall be determined as if the same were for an
Interest Period of one month.
(f) This Agreement and the Note are subject to the express condition
that at no time shall Borrower be obligated or required to pay interest on the
principal balance of the Loan at a rate which could subject Lender to either
civil or criminal liability as a result of being in excess of the Maximum Legal
Rate. If by the terms of this Agreement or any of the other Loan Documents,
Borrower is at any time required or obligated to pay interest on the principal
balance due hereunder at a rate in excess of the Maximum Legal Rate, the
interest rate or the Default Rate, as the case may be, shall be deemed to be
immediately reduced to the Maximum Legal Rate and all previous payments in
excess of the Maximum Legal Rate shall be deemed to have been payments in
reduction of principal and not on account of the interest due hereunder. All
sums paid or agreed to be paid to Lender for the use, forbearance, or detention
of the sums due under the Loan, shall, to the extent permitted by applicable
law, be amortized, prorated, allocated, and spread throughout the full stated
term of the Loan until payment in full so that the rate or amount of interest on
account of the Loan does not exceed the Maximum Legal Rate of interest from time
to time in effect and applicable to the Loan for so long as the Loan is
outstanding.
Section 2.04 Fees. (a) In consideration of Lender making the Loan to
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Borrower, Borrower shall pay to Lender the following fees:
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(i) $62,500.00 (the "Origination Fee"), which Origination Fee
will be paid by Borrower to Lender on the Closing Date;
(ii) $62,500.00 (the "Funding Fee"), which Funding Fee will be
paid by Borrower to Lender on the date of the Initial Advance; and
(iii) a fee (each, an "Unused Facility Fee"), which Unused
Facility Fee shall accrue at a rate per annum equal to .25% on the
daily amount of the unadvanced portion of the Facility Amount during
the period from, and including, the Closing Date to, but excluding,
the Maturity Date. Accrued Unused Facility Fees will be paid by
Borrower to Lender in arrears on each monthly anniversary date of the
Closing Date (including the Maturity Date). The Unused Facility Fees
shall be calculated on the basis of a three hundred sixty (360) day
year based on the actual number of days elapsed.
(b) All fees set forth in Section 2.04(a) shall be deemed to have been
earned on the date payment is due in accordance with the provisions thereof and
shall be non-refundable.
Section 2.05 Principal Payments and Other Payments. Borrower shall pay
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the then outstanding principal balance of the Loan together with all accrued and
unpaid interest thereon and all other sums then due and payable under this
Agreement and the other Loan Documents (including, without limitation, any
Unused Facility Fee) on the Maturity Date.
Section 2.06 Voluntary Prepayments. Borrower shall have the right to
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prepay the Note, in whole or in part, from time to time (a "Voluntary
Prepayment") on the following terms and conditions (collectively, the
"Prepayment Procedures"): (a) Borrower shall give Lender written notice (or
telephonic notice promptly confirmed in writing) (which notice shall be
irrevocable), of its intent to prepay all or a portion of the Note, at least
three (3) Business Days prior to a prepayment, which notice shall specify the
amount of such prepayment and the date of such prepayment (the "Prepayment
Date"), (b) each prepayment shall be in a minimum amount of One Million Dollars
(U.S. $1,000,000.00) and must be in integral multiples of One Hundred Thousand
Dollars (U.S. $100,000.00) in excess thereof, (c) prepayments made pursuant to
this Section 2.06 on a date other than on the last day of the Interest Period
applicable thereto shall be accompanied by payment of any Funding Costs which
Lender shall incur as a result of such prepayment and (d) Borrower shall pay all
interest which would have accrued on the principal balance of the Loan (or
portion thereof) being prepaid after the Prepayment Date to and including the
last day of the Interest Period in which the Prepayment Date occurs (the
"Interest Shortfall Payment"), if such prepayment occurs on a date which is not
a Scheduled Payment Date. If any such notice is given, the amount specified in
such notice shall be due and payable on the date specified therein.
Section 2.07 Application of Payments and Prepayments. Unless
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specifically provided otherwise, all payments and prepayments of the Note,
whether voluntary or otherwise, shall be applied as follows: first, to any costs
and expenses of Lender arising as a result of such prepayment and any Funding
Costs; second, to pay any accrued and unpaid interest then payable with respect
to the Note; and third, to pay the outstanding principal amount of the Note.
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Section 2.08 Method and Place of Payment.
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(a) Except as otherwise specifically provided herein, all payments and
prepayments under this Agreement and the Note shall be made to Lender not later
than 1:00 p.m., New York City time, on the date when due and shall be made in
lawful money of the United States of America in immediately available funds at
the office of the Lender (provided, however, Lender shall not be required to
accept any payment or prepayment in cash) and any funds received by Lender after
such time shall, for all purposes hereof, be deemed to have been paid on the
next succeeding Business Day.
(b) Whenever any payment to be made hereunder or under the
Note or other Loan Documents shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable at the applicable rate during such extension.
(c) All payments made by Borrower hereunder, under the Note and the
other Loan Documents, shall be made irrespective of, and without any deduction
for, any setoff or counterclaims.
Section 2.09 Interest Rate Unascertainable, Increased Costs,
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Illegality. (a) In the event that Lender has determined in its sole discretion
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(which determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto) that:
(i) on any date for determining the Eurodollar Rate
for any Interest Period, that by reason of any changes arising after
the date of this Agreement affecting the interbank Eurodollar market,
adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of the
Eurodollar Rate; or
(ii) at any time, that the relevant Eurodollar Rate
shall not represent the effective pricing to Lender for funding or
maintaining the Loan, or Lender shall incur increased costs or
reduction in the amounts received or receivable hereunder, in any such
case because of (y) any change since the date of this Agreement in any
applicable law or governmental rule, regulation, guideline, order,
request or directive or any interpretation thereof and including the
introduction of any new law or governmental rule, regulation,
guideline, order, request or directive (such as, for example, but not
limited to, a change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D of the Federal
Reserve Board to the extent included in the computation of the
Eurodollar Rate), whether or not having the force of law and whether or
not failure to comply therewith would be unlawful, and/or (z) other
circumstances affecting Lender or the interbank Eurodollar market or
the position of Lender in such market; or
(iii) at any time, that the making or continuance by
it of the Loan at the appropriate Eurodollar Rate has become unlawful
in order for Lender, in good faith, to comply with any law or
governmental rule, regulation, guideline, order, request or
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directive (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful), or any change therein,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or has become
impracticable as a result of a contingency occurring after the date of
this Agreement which materially and adversely affects the interbank
Eurodollar market;
then, in any such event, Lender shall, promptly after making such determination,
give notice to Borrower. Thereafter, (A) in the case of clause (ii) above,
Borrower shall pay to Lender, promptly upon Lender's written demand therefor,
such additional amounts (in the form of an increased rate of interest, or a
different method of calculating interest, or otherwise, as Lender shall
determine) as shall be required by Lender to compensate Lender for such
increased costs or reduction in amounts received or receivable hereunder (it
being understood and agreed by the parties hereto that Lender's failure to
notify Borrower after such determination shall not excuse Borrower from the
payment of any such additional amounts upon Lender's notification to Borrower),
and (B) in the case of clause (iii) above, Borrower shall take one of the
actions specified in clause (b) below as promptly as possible and, in any event,
within the time period required by law. The written demand provided for in
clause (A) shall demonstrate in reasonable detail the circumstances giving rise
to such demand and the calculation of the amounts demanded.
(b) In the case that the Loan is affected by the circumstances
described in clause (a)(i), (a)(ii) or (a)(iii) above, if any principal amount
under the Loan is then outstanding, such amount shall automatically convert into
a Base Rate Portion.
(c) The amount of any increased costs or reductions in amounts referred
to in Section 2.09(a)(ii) with respect to Lender shall be based on the
assumption that Lender funded the Loan in the interbank Eurodollar market,
although the parties hereto agree that Lender may fund all or any portion of the
Loan in any manner it independently determines. For purposes of any demand for
payment made by Lender under Sections 2.09(a)(ii) or 2.10, in attributing
Lender's general costs relating to eurocurrency operations or its commitments or
customers, or in averaging any costs over a period of time, Lender may use any
attribution and/or averaging method which it deems appropriate, reasonable and
practical. The agreements in this Section 2.09 shall survive the termination of
this Agreement and the payment of the Note and all other Obligations.
Section 2.10 Funding Losses. Borrower shall compensate Lender for all
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losses, expenses and liabilities (including, without limitation, any loss,
expense or liability incurred by Lender in connection with the liquidation or
reemployment of deposits or funds required by it to make or carry the Loan),
(collectively, "Funding Costs"), that Lender sustains: (a) if any prepayment
(whether voluntary or mandatory), repayment (including, without limitation,
payment after acceleration) occurs on a date which is not the last day of an
Interest Period, (b) if any prepayment is not made on any date specified in a
notice of prepayment given by Borrower, or (c) as a consequence of any default
by Borrower in repaying the Loan when required by the terms of this Agreement.
Borrower shall pay such Funding Costs on the date specified for the date of
prepayment or repayment of the Loan under clause (a) or (b) above, or
immediately upon
10
written demand therefor by Lender with respect to clause (c) above. Lender shall
provide Borrower with a statement detailing the basis for requesting such
amounts and the calculation thereof, and such statement shall, absent manifest
error, be final and conclusive and binding upon Borrower. The agreements in this
Section 2.10 shall survive the termination of this Agreement and the payment of
the Note and all other Obligations.
Section 2.11 Increased Capital. If Lender shall have determined that
-----------------
compliance with any applicable law, rule, regulation, guideline, request or
directive (whether or not having the force of law), other than increases in
rates of taxation or other matters not directly related to increased capital
costs, which shall be imposed, issued or amended from and after the date of this
Agreement by any governmental authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on the capital or assets
of Lender as a consequence of its obligations hereunder, then from time to time,
upon Lender's delivering a written demand therefor to Borrower, setting forth
its calculations, Borrower shall pay to Lender on demand such additional amount
or amounts ("Increased Capital Costs") as will compensate Lender for such
reduction. Such calculations may use any averaging and attribution methods
selected by Lender. The agreements in this Section 2.11 shall survive the
termination of this Agreement and the payment of the Note and all other
Obligations.
Section 2.12 Taxes. (a) All payments made by Borrower under this
-----
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any governmental
authority, excluding net income and franchise taxes imposed on Lender (all such
non-excluded taxes, levies, imposts, deductions, charges or withholdings being
hereinafter called "Taxes").
(b) Notwithstanding anything to the contrary herein, if at any time or
from time to time Taxes are required to be deducted or withheld from the
payments required to be made to Lender hereunder by reason of a Change in Law
after the date hereof, all payments required to be made by Borrower hereunder
(including any additional amounts that may be payable pursuant to this clause
(b)) shall be increased to the extent required so that the net amount received
by Lender after the deduction or withholding of Taxes imposed by reason of a
Change in Law after the date hereof will be not less than the full amount that
would otherwise have been receivable had no such deduction or withholding been
imposed by reason of such Change in Law. In the event that this clause (b) shall
be operative, Borrower shall promptly provide to Lender evidence of payment of
such Taxes to the appropriate taxing authority and shall promptly forward to
Lender any official tax receipts or other documentation with respect to the
payment of the Taxes as may be issued by the taxing authority. If Borrower fails
to pay any Taxes when due to the appropriate taxing authority or fails to remit
to Lender the required receipts or other required documentary evidence, Borrower
shall indemnify Lender for any incremental taxes, interest or penalties that may
become payable by Lender as a result of any such failure. The agreements in this
Section 2.12 shall survive the termination of this Agreement and the payment of
the Note and all other Obligations.
11
(c) For purposes of this Section 2.12 the term "Change in Law" shall
mean the following events: (i) the enactment of any legislation by the United
States, including the enactment, amendment or modification of a treaty; (ii) the
lapse, by its terms, of any law of the United States or any treaty to which the
United States is a party; or (iii) the promulgation of any temporary or final
regulation under the Code.
Section 2.13 Decision Making by Lender. Borrower acknowledges and
-------------------------
agrees that wherever pursuant to this Agreement (a) Lender exercises any right
given to it to approve or disapprove, (b) any arrangement or term is to be
satisfactory to Lender, or (c) any other decision or determination is to be made
by Lender, the decision of Lender to approve or disapprove, all decisions that
arrangements or terms are satisfactory or not satisfactory and all other
decisions and determinations made by Lender, shall be in the sole and absolute
discretion of Lender and shall be final and conclusive, except as may be
otherwise expressly and specifically provided herein.
SECTION 3. CONDITIONS PRECEDENT
Section 3.01 Conditions Precedent to Initial Advance of the Loan. The
---------------------------------------------------
obligation of Lender to make the Initial Advance under the Loan is subject to
the satisfaction on the Closing Date of the following conditions precedent, with
each document to be dated the Closing Date unless otherwise indicated:
(a) Organizational Documents. Lender shall have received (i) with
------------------------
respect to the Partnership, its agreement of partnership, as amended, modified
or supplemented, certified to be true, correct and complete by its corporate
general partner, together with a copy of the filed partnership certificate of
the Partnership, as amended, modified or supplemented, certified to be true,
correct and complete by the Secretary of State of the State of Delaware as of a
date not more than thirty (30) days prior to the Closing Date, together with a
good standing certificate from such Secretary of State to be dated not more than
thirty (30) days prior to the Closing Date; (ii) with respect to the
Corporation, its articles of incorporation, as amended, modified or
supplemented, certified to be true, correct and complete by the Maryland State
Department of Assessment and Taxation as of a date not more than thirty (30)
days prior to the Closing Date, together with a good standing certificate from
the Maryland State Department of Assessment and Taxation to be dated not more
than thirty (30) days prior to the Closing Date, and a copy of its by-laws
certified by an officer of the Corporation; (iii) with respect to the corporate
general partner of the Partnership, its certificate of incorporation, as
amended, modified or supplemented, certified to be true, correct and complete by
the Secretary of State of the State of Delaware as of a date not more than
thirty (30) days prior to the Closing Date, together with a good standing
certificate from such Secretary of State to be dated a date not more than thirty
(30) days prior to the Closing Date, and a copy of its by-laws certified by an
officer of such corporate general partner; and (iv) with respect to the
Corporation, a foreign qualification/good standing certificate from the District
of Columbia Department of Consumer and Regulatory Affairs, to be dated not more
than thirty (30) days prior to the Closing Date.
12
(b) Certified Resolutions, etc. Lender shall have received a
--------------------------
certificate, dated the Closing Date, of an officer of each of the Corporation
and the corporate general partner of the Partnership, certifying (i) the names
and true signatures of the incumbent officers of such Person authorized to sign
the applicable Loan Documents on behalf of the Corporation and the Partnership,
as applicable, (ii) the resolutions of such Person's board of directors (or a
committee of such Person authorized to take such action) approving and
authorizing the execution, delivery and performance of all Loan Documents
executed by such Person, and (iii) that there have been no changes in the
articles of incorporation, partnership certificate or certificate of
incorporation, as applicable, of the Corporation, the Partnership and the
corporate general partner of the Partnership since the date of the most recent
certification thereof by the appropriate Secretary of State.
(c) Loan Agreement. Borrower shall have executed and delivered this
--------------
Agreement to Lender.
(d) The Note. Borrower shall have delivered to Lender the Note.
--------
(e) Opinion of Counsel. Lender shall have received a legal opinion,
------------------
from counsel to Borrower, in form and substance reasonably satisfactory to
Lender and its counsel.
(f) No Injunction or Litigation. No law or regulation shall have been
---------------------------
adopted, no order, judgment or decree of any governmental authority shall have
been issued, and no litigation shall be pending or threatened, which in the
judgment of Lender would enjoin, prohibit or restrain, or impose or result in
the imposition of any material adverse condition upon, the making of the Initial
Advance or Borrower's obligation to pay (or Lender's rights to receive payment
of) the Loan and the other Obligations.
Section 3.02 Acceptance of Advance Proceeds. The acceptance by Borrower
------------------------------
of the proceeds of each Advance shall constitute a representation and warranty
by Borrower to Lender that all of the conditions required to be satisfied under
this Section 3 in connection with the making of such Advance and all of the
terms and provisions of this Agreement have been satisfied.
Section 3.03 Documents. All certificates, agreements, legal opinions
---------
and other documents and papers referred to in this Section 3, unless otherwise
specified, shall be delivered to Lender and shall be reasonably satisfactory in
form and substance to Lender in its sole discretion (unless the form thereof is
prescribed herein).
SECTION 4. REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties. All of the representations
------------------------------
and warranties contained in Article IV of the Credit Agreement that are
applicable to the Corporation and/or the Partnership, as applicable (the "Credit
Agreement Representations & Warranties"), are incorporated herein by this
reference to the fullest extent as if such Borrower had restated the Credit
Agreement Representations & Warranties in their entirety herein and all of the
Credit
13
Agreement Representations and Warranties are true and correct in all material
respects as of the date hereof (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be true and correct only on such specified date). Borrowers shall comply
with the Credit Agreement Representations & Warranties regardless of the
termination, repayment or cancellation of the Credit Agreement.
SECTION 5. COVENANTS
Section 5.01 Covenants. All of the covenants contained in Articles V
---------
and VI of the Credit Agreement that are applicable to the Corporation and/or the
Partnership, as applicable (the "Credit Agreement Covenants"), are incorporated
herein by this reference to the fullest extent as if such Borrower had restated
the Credit Agreement Covenants in their entirety herein and Borrowers are in
compliance with all of the Credit Agreement Covenants in all material respects
as of the date hereof. Borrowers shall comply with the Credit Agreement
Covenants regardless of the termination, repayment or cancellation of the Credit
Agreement.
SECTION 6. EVENTS OF DEFAULT
Section 6.01 Events of Default. Each of the following events, acts,
-----------------
occurrences or conditions shall constitute an Event of Default under this
Agreement, regardless of whether such event, act, occurrence or condition is
voluntary or involuntary or results from the operation of law or pursuant to or
as a result of compliance by any Person with any judgment, decree, order, rule
or regulation of any court or administrative or governmental body:
(a) Failure to Make Payments. Borrower shall default in the payment of
------------------------
any principal or any
interest or other sums due and owing under the Note.
(b) Default Under Other Agreements. (i) Borrower shall default beyond
------------------------------
the applicable grace period, if any, in the payment, performance or observance
of any obligation or condition with respect to any of the Loan Documents
(including, without limitation, Section 2, Section 4, Section 5 and Section 8.04
hereof) or (ii) Borrower shall default beyond the applicable grace period, if
any, in the payment, performance or observance of any obligation or condition
with respect to the Credit Agreement or any other documents executed in
connection with the Credit Agreement (collectively, the "Credit Agreement Loan
Documents") and/or performance pertaining to the transactions contemplated by
the Credit Agreement that are applicable to Borrower, regardless (in the case of
both (i) and (ii) above) of whether the Credit Agreement Loan Documents are then
in effect or a default has been declared thereunder.
SECTION 7. REMEDIES
Section 7.01 General Rights and Remedies. (a) Upon the occurrence of
---------------------------
any Event of Default, Lender may, by written notice to Borrower (i) declare that
the obligation of Lender to make any Advances hereunder shall immediately
terminate and (ii) declare the unpaid
14
principal amount of and any and all accrued and unpaid interest on the Note and
other Obligations to be, and the same shall thereupon be, immediately due and
payable with all additional interest thereon calculated at the Default Rate from
the occurrence of the Default until the Loan is paid in full and without
presentation, demand, or protest or other requirements of any kind (including,
without limitation, diligence, presentment, notice of intent to demand or
accelerate and notice of acceleration), all of which are hereby expressly waived
by Borrower.
(b) Lender may offset any indebtedness, obligations or liabilities owed
by Lender to Borrower against any indebtedness, obligations or liabilities of
Borrower to Lender.
(c) Upon the occurrence of an Event of Default, Lender may avail itself
of any remedies available to it under the Loan Documents or at law or equity.
SECTION 8. MISCELLANEOUS PROVISIONS
Section 8.01 Payment of Lender's Expenses, Indemnity, etc. Borrower
--------------------------------------------
shall:
(a) pay all reasonable costs and expenses of Lender (including, without
limitation, the fees and disbursements of counsel for Lender) in connection with
the negotiation, preparation, execution and delivery of the Loan Documents and
the documents and instruments referred to therein and any amendment, waiver or
consent relating to any of the Loan Documents, or in connection with the
preservation of rights under, and enforcement of, the Loan Documents and any
amendment thereto or in connection with any restructuring or rescheduling of the
Obligations; and
(b) indemnify Lender, its officers, directors, employees,
representatives and agents and any persons or entities owned or Controlled by,
owning or Controlling, or under common Control or Affiliated with Lender (each
an "Indemnitee") from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature whatsoever
(including, without limitation, the reasonable fees and disbursements of counsel
for such Indemnitee in connection with any investigative, administrative or
judicial proceeding commenced or threatened, whether or not such Indemnitee
shall be designated a party thereto) that may at any time (including, without
limitation, at any time following the payment of the Obligations) be imposed on,
asserted against or incurred by any Indemnitee as a result of, or arising in any
manner out of, or in any way related to or by reason of (i) the execution,
delivery or performance of any Loan Document and (ii) the breach of any of
Borrower's representations and warranties or of any of Borrower's Obligations.
Section 8.02 Notices. All notices or other written communications
-------
hereunder (other than a Notice of Borrowing, which shall be given pursuant to
the terms of Section 2.01(e)) shall be deemed to have been properly given (a)
upon delivery, if delivered in person or by facsimile transmission with receipt
acknowledged by the recipient thereof and confirmed by telephone by sender, (b)
one (1) Business Day after having been deposited for overnight delivery with any
reputable overnight courier service, or (c) three (3) Business Days after having
been
15
deposited in any post office or mail depository regularly maintained by the
U.S. Postal Service and sent by registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
If to Borrower: CarrAmerica Realty Corporation and
CarrAmerica Realty, L.P.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
With a copy to: Xxxxx & Xxxxxxx L.L.P.
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Lender: The Chase Manhattan Bank
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Facsimile No.: (000) 000-0000
and
The Chase Manhattan Bank
Legal Department
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Counsel
Facsimile No.: (000) 000-0000
or addressed as such party may from time to time designate by written notice to
the other parties. Each party by notice to the others may designate additional
or different addresses for subsequent notices or communications.
Section 8.03 Borrower's Assignment. Borrower may not assign its rights
---------------------
or obligations under the Loan Documents without the prior written consent of
Lender.
Section 8.04 Participations and Securitization. (a) Borrower
---------------------------------
acknowledges that Lender has notified Borrower that it may, after the date
hereof, sell and assign the Loan and/or interests in the Loan to such domestic
or foreign banks, insurance companies, pension funds, trusts, other
institutional lenders or governmental agencies or other persons, parties or
investors (including, without limitation, grantor trusts, owner trusts, special
purpose corporations,
16
REMICs, real estate investment trusts or other similar or comparable investment
vehicles) as may be selected by Lender in its sole and absolute discretion and
on terms and conditions satisfactory to Lender in its sole and absolute
discretion (any such bank, insurance company, pension fund, trust or other
institutional lender or other person, party or investor to whom the Loan or an
interest in the Loan is so sold and assigned is herein referred to as a
"Participant").
(b) Borrower shall cooperate, and shall cause each guarantor,
indemnitor and other person or party associated or connected with Borrower, the
Loan or the collateral therefor to cooperate, in all respects, with Lender in
connection with the sale of the Loan, or of interests in the Loan, in the manner
contemplated by this Section 8.04, and shall, in connection therewith, execute
and deliver such estoppels, certificates, instruments, documents and information
(including, without limitation, financial information concerning Borrower and
each guarantor, indemnitor and other person or party associated or connected
with the Loan or the collateral therefor) as may be reasonably requested by
Lender, any and all of which may be relied on by any Participant. Borrower
grants to Lender, and shall cause each guarantor, indemnitor and other person or
party associated or connected with Borrower, the Loan or the collateral therefor
to grant to Lender upon prior notice and consent, which shall not be
unreasonably withheld, the right to distribute on a confidential basis financial
and other information concerning Borrower, each such guarantor, indemnitor and
other person or party and the collateral therefor and other pertinent
information with respect to the Loan to any party who has purchased the Loan or
an interest in the Loan or who, in Lender's judgment, may have an interest in
purchasing the Loan or an interest in the Loan. Any person or party to whom any
such information is distributed and who declines to purchase the Loan or an
interest in the Loan shall be obligated to return to Lender all such information
distributed to it without retaining any copies thereof, and Lender shall use
reasonable efforts to effect the return of all such information from such person
or party, it being agreed, however, that Lender shall in no event or under any
circumstances have any liability as a result of such person's or party's failure
to return all or any portion of such information. Borrower, within a reasonable
period of time after request by Lender, shall execute and deliver, and shall
cause each guarantor, indemnitor and other person or party associated or
connected with Borrower, the Loan or the collateral therefor to execute and
deliver, such documents and instruments as may be necessary to split the Loan
into two or more loans evidenced by, and pursuant to, separate sets of notes and
other related loan documents to the full extent required by Lender to facilitate
the sale of the Loan or interests in the Loan in the manner contemplated by this
Section 8.04, it being agreed that:
(i) any such splitting of the Loan will not adversely
affect or diminish the rights of Borrower as currently set forth in the
Loan Documents and will not increase the respective obligations and
liabilities of Borrower or any such guarantor, indemnitor or other
person or party above those currently set forth in the Loan Documents,
and
(ii) the retained interest of Lender in the Loan as
so split shall be allocated to or among one or more of such separate
loans in a manner specified by Lender in its sole and absolute
discretion.
17
Borrower shall not incur or be responsible for any of the Participant's
additional costs, fees or expenses of any nature whatsoever as a result of
Lender's sale of interests in all or any portion of the Loan in the manner
contemplated by this Section 8.04, it being agreed, however, that nothing
contained in this sentence shall be deemed to modify, qualify, limit or affect
in any manner whatsoever any of the terms and provisions of the Loan Documents.
If Borrower shall fail to perform any of its obligations as set forth in this
Section 8.04, such failure shall be deemed an Event of Default hereunder if it
shall not be remedied by Borrower within ten (10) days after written notice by
Lender and Lender shall have the rights and remedies provided in Section 7 in
connection therewith.
(c) Lender also reserves the right at any time during the term
of the Loan, in its sole and absolute discretion, to effect a so-called
securitization of the Loan in such a manner and on such terms and conditions as
Lender shall deem to be appropriate in its sole and absolute discretion and with
such domestic or foreign banks, insurance companies, pension funds, trusts,
other institutional lenders or governmental agencies other persons, parties or
investors (including, without limitation, grantor trusts, owner trusts, special
purpose corporations, REMICs, real estate investment trusts or other similar or
comparable investment vehicles) as may be selected by Lender in its sole and
absolute discretion.
(d) Upon the transfer of the Loan Documents, the transferee
shall become vested with all the rights herein or under applicable law given to
Lender with respect thereto, and Lender shall thereafter forever be relieved and
fully discharged from any liability or responsibility in the matter; but Lender
shall retain all rights hereby given to it with respect to any of the
Obligations not so transferred. Lender shall provide notice to Borrower if such
transfer involves the sale and assignment of all of Lender's interests in the
Loan.
Section 8.05 Amendments. Neither this Agreement, the Note, any
----------
other Loan Document to which Borrower is a party nor any terms hereof or thereof
may be amended, supplemented, modified or waived other than in a writing
executed by Borrower and Lender.
Section 8.06 No Waiver; Remedies Cumulative. No failure or
------------------------------
delay on the part of Lender in exercising any right, power or privilege
hereunder or under any other Loan Document nor any course of dealing between
Borrower and Lender shall operate as a waiver thereof nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Loan Document preclude any other or further exercise thereof or the exercise of
any other right, power or privilege hereunder or thereunder. In particular, and
not by way of limitation, by accepting payment after the due date of any amount
payable under this Agreement, the Note or any other Loan Documents, Lender shall
not be deemed to have waived any right either to require prompt payment when due
of all other amounts due under this Agreement, the Note or such other Loan
Documents, or to declare a default for failure to effect prompt payment of any
such amount. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which Lender would otherwise have.
No notice to or demand on Borrower in any case shall entitle Borrower to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of Lender to any other or
18
further action in any circumstances without notice or demand unless expressly
stated in such notice or demand, as applicable.
Section 8.07 Governing Law. This Agreement shall be deemed to
-------------
be a contract entered into pursuant to the laws of the State of New York, and
shall in all respects be governed, construed, applied and enforced in accordance
with the laws of the State of New York (excluding the conflict of law provisions
thereof).
Section 8.08 Joint and Several. Borrowers are each jointly and
----------------
severally liable for the payment in full of the Loan and all other sums owing
under this Agreement, the Note and the other Loan Documents and the performance
of all of the Obligations.
Section 8.09 Successors and Assigns. This Agreement shall be
---------------------
binding upon and inure to the benefit of Borrower and permitted assignees of
Borrower, and to the benefit of Lender, all future holders of the Note and their
respective successors and assigns.
Section 8.10 Counterparts. This Agreement may be executed in
------------
any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
Section 8.11 Effectiveness. This Agreement shall become
-------------
effective on the date on which all of the parties hereto shall have signed a
counterpart hereof and shall have delivered the same to Lender.
Section 8.12 Headings Descriptive. The heading of the several
--------------------
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
Section 8.13 Severability. In case any provision in or
------------
obligation under this Agreement or the Note or the other Loan Documents shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
Section 8.14 Survival. Except as expressly provided to the
--------
contrary herein, all indemnities and rights and obligations set forth herein
shall survive the execution and delivery of this Agreement, the Note and the
other Loan Documents and the making and repayment of the Loan hereunder and
shall inure to the benefit of the respective legal representatives and
successors and assigns of the parties.
Section 8.15 Limitation of Liability. Except as otherwise
-----------------------
provided herein, no claim may be made by Borrower or any other Person against
Lender or the Affiliates, directors, officers, employees, attorneys or agent of
any of such Persons for any special, indirect, consequential or punitive damages
in respect of any claim for breach of contract or any other theory of liability
arising out of or related to the transactions contemplated by this Agreement, or
19
any act, omission or event occurring in connection therewith; and Borrower
hereby waives, releases and agrees not to xxx upon any claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
Section 8.16 WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED
-----------------------
BY APPLICABLE LAW, BORROWER AND LENDER EACH HEREBY IRREVOCABLY WAIVE ALL RIGHT
OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY MATTER ARISING
HEREUNDER OR THEREUNDER.
Section 8.17 No Joint Venture. Notwithstanding anything to the
----------------
contrary herein contained, Lender by entering into this Agreement or by taking
any action pursuant hereto, will not be deemed a partner or joint venturer with
Borrower and Borrower agrees to hold Lender harmless from any damages and
expenses resulting from such a construction of the relationship of the parties
hereto or any assertion thereof.
Section 8.18 No Other Agreements. The Loan Documents
-------------------
constitute the entire understanding of the parties with respect to the
transactions contemplated hereby, and all prior understandings with respect
thereto, whether written or oral, shall be of no force and effect.
20
Section 8.19 Controlling Document; Construction of Documents.
-----------------------------------------------
In the event of a conflict between the provisions of this Agreement and the
other Loan Documents, the provisions of this Agreement shall control and govern
the conflicting provisions of the other Loan Documents. The parties hereto
acknowledge that they were represented by counsel in connection with the
negotiation and drafting of the Loan Documents.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
CARRAMERICA REALTY CORPORATION,
a Maryland corporation
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
CARRAMERICA REALTY, L.P.,
a Delaware limited partnership
By: CarrAmerica Realty GP Holdings, Inc.,
a Delaware corporation, its General Partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
THE CHASE MANHATTAN BANK, a New York
banking corporation
By: /s/ Xxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
21
EXHIBIT A
NOTICE OF BORROWING
CARRAMERICA REALTY CORPORATION
CARRAMERICA REALTY, L.P.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
___________, 2000
[Via Facsimile (000) 000-0000]
The Chase Manhattan Bank
1 Chase Manhattan Plaza - 8th Floor
New York, New York 10081
Attention: Xxxxxxxxx X. Xxxxxxxx
Gentlemen:
We refer to that certain Loan Agreement dated as of April ___, 2000
among us and you (the "Loan Agreement"). This certificate is delivered to you
pursuant to the terms of the Loan Agreement as one of the inducements for an
Advance in the amount of $_____________. All capitalized terms used herein shall
have the same meanings herein as they have in the Loan Agreement.
In order to induce you to make this Advance, we hereby represent and
certify as follows:
1. No Default or Event of Default has occurred and is continuing under
the Loan Agreement, the Note, or any other Loan Documents or would result from
the proposed Advance or would result from the application of the proceeds
therefrom.
2. Each of the representations and warranties set forth in the Loan
Agreement, the Note, the Credit Agreement and all other Loan Documents is true
and correct as of the date hereof (other than such representations and
warranties that by their terms refer to a date other than the date hereof).
3. All conditions in the Loan Agreement and all other Loan Documents to
the Advance have been satisfied.
[Signatures Begin on Next Page]
A-1
The undersigned hereby notifies you that the date of the Advance shall
be _________, 2000.
CARRAMERICA REALTY CORPORATION,
a Maryland corporation
By:_____________________________
Name:
Title:
CARRAMERICA REALTY, L.P.,
a Delaware limited partnership
By: CarrAmerica Realty GP Holdings, Inc.,
a Delaware corporation, its
General Partner
By:_____________________________
Name:
Title:
cc: Xxxx X. Xxxxxxxxxx
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Xxxxx X. Xxxxxxxxx
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
A-2
