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EXHIBIT 10.3
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AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
dated as of August 8, 1997
among
AMB Current Income Fund, Inc.
The Banks Listed Herein
and
Xxxxxx Guaranty Trust Company of New York,
as Agent
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS....................................... 2
SECTION 1.1. Definitions........................................................... 2
SECTION 1.2. Accounting Terms and Determinations................................... 25
SECTION 1.3. Types of Borrowings................................................... 25
ARTICLE II
THE CREDITS...................................... 26
SECTION 2.1. Commitments to Lend................................................... 26
SECTION 2.2. Notice of Borrowing................................................... 26
SECTION 2.3. Notice to Banks; Funding of Loans..................................... 27
SECTION 2.4. Notes................................................................. 28
SECTION 2.5. Maturity of Loans..................................................... 28
SECTION 2.6. Interest Rates........................................................ 29
SECTION 2.7. Fees.................................................................. 30
SECTION 2.8. Mandatory Expiration.................................................. 30
SECTION 2.9. Mandatory Prepayment.................................................. 32
SECTION 2.10. Optional Prepayments.................................................. 33
SECTION 2.11. General Provisions as to Payments..................................... 34
SECTION 2.12. Funding Losses........................................................ 35
SECTION 2.13. Computation of Interest and Fees...................................... 35
SECTION 2.14. Use of Proceeds....................................................... 35
ARTICLE III
CONDITIONS....................................... 36
SECTION 3.1. Closing............................................................... 36
SECTION 3.2. Borrowings............................................................ 39
SECTION 3.3. Borrowing Base Properties............................................. 40
SECTION 3.4. Conditions Precedent to New Acquisitions
and Additional Real Property Assets................................... 41
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.............................. 43
SECTION 4.1. Existence and Power................................................... 43
SECTION 4.2. Power and Authority................................................... 43
SECTION 4.3. No Violation.......................................................... 43
SECTION 4.4. Financial Information................................................. 44
SECTION 4.5. Litigation............................................................ 44
SECTION 4.6. Compliance with ERISA................................................. 45
SECTION 4.7. Environmental Matters................................................. 45
SECTION 4.8. Taxes................................................................. 46
SECTION 4.9. Full Disclosure....................................................... 46
SECTION 4.10. Solvency.............................................................. 46
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SECTION 4.11. Use of Proceeds; Margin Regulations................................... 46
SECTION 4.12. Governmental Approvals................................................ 47
SECTION 4.13. Investment Company Act; Public Utility Holding Company Act............ 47
SECTION 4.14. Closing Date Transactions............................................. 47
SECTION 4.15. Representations and Warranties in Loan Documents...................... 47
SECTION 4.16. Patents, Trademarks, Etc.............................................. 47
SECTION 4.17. Ownership of Property................................................. 48
SECTION 4.18. No Default............................................................ 48
SECTION 4.19. Licenses, Etc......................................................... 48
SECTION 4.20. Compliance With Law................................................... 48
SECTION 4.21. No Burdensome Restrictions............................................ 48
SECTION 4.22. Brokers' Fees......................................................... 49
SECTION 4.23. Labor Matters......................................................... 49
SECTION 4.24. Insurance............................................................. 49
SECTION 4.25. Organizational Documents.............................................. 49
SECTION 4.26. Principal Offices..................................................... 49
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS............................ 49
SECTION 5.1. Information........................................................... 49
SECTION 5.2. Payment of Obligations................................................ 54
SECTION 5.3. Maintenance of Property; Insurance.................................... 54
SECTION 5.4. Conduct of Business and Maintenance of Existence...................... 54
SECTION 5.5. Compliance with Laws.................................................. 54
SECTION 5.6. Inspection of Property, Books and Records............................. 55
SECTION 5.7. Existence............................................................. 55
SECTION 5.8. Certain Requirements for the Borrowing Base Properties................ 55
SECTION 5.9. Financial Covenants................................................... 55
SECTION 5.10. Restriction on Fundamental Changes.................................... 57
SECTION 5.11. Liens; Release of Liens............................................... 58
SECTION 5.12. Sale of Borrowing Base Properties..................................... 58
SECTION 5.13. Changes in Business................................................... 58
SECTION 5.14. Fiscal Year; Fiscal Quarter........................................... 59
SECTION 5.15. Intentionally Omitted................................................. 59
SECTION 5.16. Margin Stock.......................................................... 59
SECTION 5.17. Annual Appraisal...................................................... 59
SECTION 5.18. Initial Valuation Date................................................ 59
SECTION 5.19. Restrictions on Recourse Debt......................................... 59
SECTION 5.20. Covenant Restrictions................................................. 59
ARTICLE VI
DEFAULTS......................................... 59
SECTION 6.1. Events of Default..................................................... 59
SECTION 6.2. Rights and Remedies................................................... 62
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SECTION 6.3. Notice of Default..................................................... 63
ARTICLE VII
THE AGENT........................................ 64
SECTION 7.1. Appointment and Authorization......................................... 64
SECTION 7.2. Agent and Affiliates.................................................. 64
SECTION 7.3. Action by Agent....................................................... 64
SECTION 7.4. Consultation with Experts............................................. 64
SECTION 7.5. Liability of Agent.................................................... 64
SECTION 7.6. Indemnification....................................................... 65
SECTION 7.7. Credit Decision....................................................... 65
SECTION 7.8. Successor Agent....................................................... 65
ARTICLE VIII
CHANGE IN CIRCUMSTANCES................................. 66
SECTION 8.1. Basis for Determining Interest Rate Inadequate or Unfair.............. 66
SECTION 8.2. Illegality............................................................ 67
SECTION 8.3. Increased Cost and Reduced Return..................................... 67
SECTION 8.4. Taxes................................................................. 69
SECTION 8.5. Base Rate Loans Substituted for Affected Euro-Dollar Loans............ 71
ARTICLE IX
THE AMB CONSOLIDATION TRANSACTIONS............................ 71
SECTION 9.1. The AMB Consolidation Transactions.................................... 71
SECTION 9.2. Consent of Banks; Assumption by New Borrower.......................... 72
SECTION 9.3. Effect of Merger and New Borrower Assumption.......................... 74
SECTION 9.4. Effect of IPO......................................................... 75
ARTICLE X
MISCELLANEOUS...................................... 76
SECTION 10.1. Notices.............................................................. 76
SECTION 10.2. No Waivers........................................................... 77
SECTION 10.3. Expenses; Indemnification............................................ 77
SECTION 10.4. Sharing of Set-Offs.................................................. 78
SECTION 10.5. Amendments and Waivers............................................... 79
SECTION 10.6. Successors and Assigns............................................... 80
SECTION 10.7. Collateral........................................................... 82
SECTION 10.8. Governing Law; Submission to Jurisdiction............................ 82
Section 10.9. Marshalling; Recapture............................................... 82
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SECTION 10.10. Counterparts; Integration; Effectiveness............................. 83
SECTION 10.11. WAIVER OF JURY TRIAL................................................. 83
SECTION 10.12. Survival............................................................. 83
SECTION 10.13. Domicile of Loans.................................................... 83
SECTION 10.14. Limitation of Liability.............................................. 83
SECTION 10.15. Recourse............................................................. 84
SECTION 10.16. Confidentiality...................................................... 84
EXHIBITS AND SCHEDULES
Exhibit A - Note
Exhibit B - Borrowing Base Properties
Exhibit C - Assignment and Assumption Agreement
Exhibit D - New Borrower Assumption Agreement
Exhibit E - New Borrower Note
Exhibit F - List of Assumption Documents
Exhibit G - Form of Borrowing Base Property Certificate
Exhibit H - Form of General Partner Guaranty
Schedule 4.17(a) - Real Property Assets
Schedule 4.17(b) - Liens
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AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as of August 8,
1997 by and among AMB CURRENT INCOME FUND, INC., a Maryland corporation (the
"Borrower"), the BANKS listed on the signature pages hereof and XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK, as Agent.
WHEREAS, certain of the Banks previously agreed to make available to the
Borrower a revolving credit facility upon the terms and conditions set forth in
that certain Revolving Credit Agreement, dated as of October 25, 1996, as
amended by that certain First Amendment to Revolving Credit Agreement, dated as
of January 17, 1997 (as so amended, the "Existing Credit Agreement"); and
WHEREAS, the Borrower and the Banks wish to amend and restate the
provisions of the Existing Credit Agreement in their entirety, as hereinafter
set forth.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties hereby amend and restate the Existing
Credit Agreement and agree as follows:
I. The Existing Credit Agreement is hereby amended, restated, replaced
and modified so that all of the terms and conditions of the aforesaid Existing
Credit Agreement shall be restated and replaced in their entirety as set forth
herein, and the Borrower agrees to comply with and be subject to all of the
terms, covenants and conditions of this Agreement.
II. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and assigns, and shall be deemed
to be effective as of the date hereof.
III. Any reference to the Existing Credit Agreement in the Guaranty or
any other instrument or document executed in connection with the Existing Credit
Agreement shall be deemed to refer to this Agreement.
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein, have the
following meanings:
"Acquisition Price" means (i) the purchase price of a Real Property Asset
as set forth in the applicable purchase and sale agreement, (ii) increases or
reductions to such purchase price as provided in such purchase and sale
agreement or the final closing statement, (iii) the acquisition advisory fee
paid to the Advisor, if applicable, and (iv) reasonable closing costs to the
extent incurred by Borrower, RIF or AIF or any Consolidated Subsidiary of RIF or
AIF in connection with such acquisition, including but not limited to, brokerage
fees, attorneys fees and expenses, due diligence expenses, appraisal fees,
engineering and environmental fees, title insurance premiums, survey preparation
costs, and recording fees.
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.6(b).
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Borrower) duly completed by such Bank.
"Advisor" means AMB Institutional Realty Advisors, Inc., a California
corporation.
"Agent" means Xxxxxx Guaranty Trust Company of New York in its capacity as
agent for the Banks hereunder, and its successors in such capacity.
"Agreement" means this Amended and Restated Revolving Credit Agreement, as
the same may from time to time hereafter be modified, supplemented or amended,
as permitted herein.
"AIF" means the AMB Industrial Income Fund, Inc., a Maryland corporation
and a wholly-owned direct Subsidiary of the Borrower.
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"AMB Consolidation Transactions" means the transactions, including the
Merger, which shall occur over time to effect the consolidation of the
businesses, operations, assets and liabilities of the Borrower, AIF and RIF and
their respective Subsidiaries, including, without limitation, any transfers and
contributions by such entities which may be made, directly or indirectly, to the
New Borrower to effect such consolidation.
"Annual Appraisal" means the MAI appraisal, prepared annually with respect
to each Real Property Asset in connection with each Valuation Date, by an
appraisal company selected in the manner customarily used by Borrower in the
selection of such appraisal companies.
"Applicable Interest Rate" means (i) with respect to any Fixed Rate
Indebtedness, the fixed interest rate applicable to such Fixed Rate Indebtedness
at the time in question, and (ii) with respect to any Floating Rate
Indebtedness, the lesser of (x) the rate at which the interest rate applicable
to such Floating Rate Indebtedness could be fixed, at the time of calculation,
by Borrower entering into an unsecured interest rate swap agreement (or, if such
rate is incapable of being fixed by entering into an unsecured interest rate
swap agreement at the time of calculation, a reasonably determined fixed rate
equivalent), or (y) the rate at which the interest rate applicable to such
Floating Rate Indebtedness is actually capped, at the time of calculation, if
Borrower has entered into an interest rate cap agreement with respect thereto.
"Applicable Lending Office" means, with respect to any Bank, (i) in the
case of its Domestic Loans, its Domestic Lending Office and (ii) in the case of
its Euro- Dollar Loans, its Euro-Dollar Lending Office.
"Applicable Margin" means, with respect to each Euro-Dollar Loan or Base
Rate Loan, the respective percentages per annum determined, at any time, based
on the range into which Borrower's Credit Rating (if any) then falls, in
accordance with the table set forth below. Any change in Borrower's Credit
Rating shall be effective immediately as of the date on which any of the Rating
Agencies announces a change in the Borrower's Credit Rating or the date on which
the Borrower has no Credit Rating, whichever is applicable. In the event that
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Borrower receives two (2) Credit Ratings that are not equivalent, the Applicable
Margin shall be determined by the lower of such two (2) Credit Ratings. In the
event that Borrower receives more than two (2) Credit Ratings, and such ratings
are not equivalent, the Applicable Margin shall be determined by the lower of
the two (2) highest ratings, provided that each of said two (2) highest ratings
shall be Investment Grade Ratings and at least one of which shall be an
Investment Grade Rating from S&P or Xxxxx'x. In the event that only one of the
Rating Agencies shall have set Borrower's Credit Rating, then the Applicable
Margin shall be based on such rating only.
Range of Applicable
Borrower's Margin for Applicable
Credit Rating Base Rate Margin for Euro
(S&P/Xxxxx'x Loans Dollar Loans
Ratings) (% per annum) (% per annum)
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BBB/Baa2 0.000 1.250
BBB-/Baa3 0.125 1.375
Non-Invest-
ment Grade or
no rating 0.250 1.500
"Appraised Value" shall mean, with respect to each applicable Valuation
Date, the fair market value of a Real Property Asset as set forth in the Annual
Appraisal of such Real Property Asset prepared on behalf of Borrower in
connection with such Valuation Date.
"Approved Bank" shall mean a bank which has (i)(a) a minimum net worth of
$500,000,000 and/or (b) total assets of $10,000,000,000, and (ii) a minimum long
term debt rating of (a) BBB+ or higher by S&P, and (b) Baa1 or higher by
Moody's.
"Approved Uses" has the meaning set forth in Section 2.14.
"Assignee" has the meaning set forth in Section 10.6(c).
"Assumption Agreement" means an Assumption Agreement in substantially the
form of Exhibit D attached hereto and made a part hereof (with blanks
appropriately completed)
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delivered to the Agent in connection with the assumption of this Agreement by
the New Borrower in accordance with the provisions of Section 9.2.
"Assumption Date" has the meaning set forth in Section 9.2.
"Bank" means each bank listed on the signature pages hereof, each Assignee
which becomes a Bank pursuant to Section 10.6(c), and their respective
successors.
"Bankruptcy Code" means Title 11 of the United States Code, entitled
"Bankruptcy", as amended from time to time, and any successor statute or
statutes.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day or (ii) the sum of 1/2 of 1% plus the Federal
Funds Rate for such day.
"Base Rate Loan" means a Loan to be made by a Bank as a Base Rate Loan in
accordance with the applicable Notice of Borrowing or pursuant to Article VIII.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" means AMB Current Income Fund, Inc., a Maryland corporation,
qualified as a real estate investment trust, and its permitted successors
(including, without limitation, the New Borrower).
"Borrower's Credit Rating" means the rating assigned by the Rating
Agencies to Borrower's senior unsecured long term indebtedness.
"Borrowing" means a borrowing hereunder consisting of Loans made to the
Borrower at the same time by the Banks pursuant to Article II. A Borrowing is
(i) a "Domestic Borrowing" if such Loans are Domestic Loans or (ii) a
"Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans.
"Borrowing Base Net Operating Cash Flow" means as of any date of
determination with respect to the Borrowing
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Base Properties, Property Income for the previous four consecutive quarters
including the quarter then ended, but less (x) Property Expenses with respect to
the Borrowing Base Properties for the previous four consecutive quarters
including the quarter then ended, and (y) appropriate reserves for replacements
of not less than $.50 per square foot per annum for each Borrowing Base Property
that is primarily a retail use property and not less than $.35 per square foot
per annum for each Borrowing Base Property that is primarily an industrial use
property. For purposes of Section 5.1(m) hereof, the calculation of Borrowing
Base Net Operating Cash Flow shall be made separately as to each Borrowing Base
Property.
"Borrowing Base Properties" has the meaning set forth in Section 3.3.
"Borrowing Base Properties Value" means the aggregate of the Gross Asset
Values of the Borrowing Base Properties.
"Capital Expenditures" means, for any period, the sum of all expenditures
(whether paid in cash or accrued as a liability) which are capitalized on the
balance sheet of the Borrower in accordance with GAAP, but exclusive, however,
with respect to any Real Property Asset acquired by the Borrower or a
Consolidated Subsidiary within the previous twelve months, of those expenditures
which the Borrower makes, or reasonably projects (as of the date of
determination) to make, within twelve months after the date of such acquisition
and excluding all expenditures made with respect to the acquisition of such Real
Property Asset by the Borrower or such Consolidated Subsidiary.
"Cash and Cash Equivalents" means (i) cash, (ii) direct obligations of the
United States Government, including, without limitation, treasury bills, notes
and bonds, (iii) interest bearing or discounted obligations of Federal agencies
and Government sponsored entities or pools of such instruments offered by
Approved Banks and dealers, including, without limitation, Federal Home Loan
Mortgage Corporation participation sale certificates, Government National
Mortgage Association modified pass-through certificates, Federal National
Mortgage Association bonds and notes, Federal Farm Credit System securities,
(iv) time deposits, domestic and Euro-dollar certificates of deposit, bankers
acceptances, commercial paper rated at least A-1 by S&P and
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P-1 by Xxxxx'x Investors Service, Inc., and/or guaranteed by an Aa rating by
Xxxxx'x Investors Service, Inc., an AA rating by S&P, or better rated credit,
floating rate notes, other money market instruments and letters of credit each
issued by Approved Banks, (v) obligations of domestic corporations, including,
without limitation, commercial paper, bonds, debentures, and loan
participations, each of which is rated at least AA by S&P, and/or Aa2 by Xxxxx'x
Investors Service, Inc., and/or unconditionally guaranteed by an AA rating by
S&P, an Aa2 rating by Xxxxx'x, or better rated credit, (vi) obligations issued
by states and local governments or their agencies, rated at least MIG-1 by
Xxxxx'x Investors Service, Inc. and/or SP-1 by S&P and/or guaranteed by an
irrevocable letter of credit of an Approved Bank, (vii) repurchase agreements
with major banks and primary government securities dealers fully secured by U.S.
Government or agency collateral equal to or exceeding the principal amount on a
daily basis and held in safekeeping, and (viii) real estate loan pool
participations, guaranteed by an AA rating given by S&P or an Aa2 rating given
by Xxxxx'x Investors Service, Inc., or better rated credit.
"Closing Date" means August 8, 1997.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor statute.
"Combined Gross Asset Value" shall be the aggregate Gross Asset Value of
all Real Property Assets owned, directly or indirectly, by the Borrower; with
respect to Real Property Assets held in Minority Holdings or Joint Ventures or
Subsidiaries which are not Consolidated, only the portion of such Real Property
Asset that is allocable, in accordance with GAAP, to Borrower's interest shall
be included in Combined Gross Asset Value.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof (and for each Bank
which is an Assignee, the amount set forth in the Assumption Agreement entered
into pursuant to Section 10.6(c) as the Assignee's Commitment), as such amount
may be reduced from time to time pursuant to Section 2.10(c) or in connection
with an assignment to an Assignee.
"Commitment Fee" has the meaning set forth in Section 2.7(a).
"Commitment Fee Percentage" means the applicable percentage per annum
determined, at any time, based on the range into which Borrower's Credit Rating
(if any) then falls, in accordance with the following table. Any change in the
Commitment Fee Percentage shall be effective immediately as of the date on which
any of the Rating Agencies announces a change in the Borrower's Credit Rating or
the date on which the Borrower has no Credit Rating, whichever
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is applicable. In the event that Borrower receives two (2) Credit Ratings that
are not equivalent, the Commitment Fee Percentage shall be determined by the
lower of such two (2) Credit Ratings. In the event that Borrower receives more
than two (2) Credit Ratings, and such ratings are not equivalent, the Commitment
Fee Percentage shall be determined by the lower of the two (2) highest ratings,
provided that each of said two (2) highest ratings shall be Investment Grade
Ratings and at least one of which shall be an Investment Grade Rating from S&P
or Xxxxx'x. In the event that only one of the Rating Agencies shall have set
Borrower's Credit Rating, then the Commitment Fee Percentage shall be based on
such rating only.
The Commitment Fee Percentage during the time, from time to time, that
Borrower's Credit Rating is BBB-/Baa3 or above, shall be 0.20%.
The Commitment Fee Percentage during the time, from time to time, that
Borrower's Credit Rating is below BBB-/Baa3 or that the Rating Agencies have not
rated Borrower's senior unsecured long term indebtedness, shall be as follows:
Unused Facility Unused Facility
greater equal to or less
than 50% of than 50% of
Leverage Ratio Maximum Loan Amount Maximum Loan Amount
-------------- ------------------- -------------------
Equal to or
greater than 30% 0.25% 0.20%
Less than 30% 0.20% 0.15%
"Confirmation of Guaranty" means that certain Confirmation of Guaranty,
dated as of the date hereof, by AIF and RIF.
"Consent" has the meaning set forth in Section 9.2.
"Consolidated" means "consolidated" in accordance with GAAP.
"Consolidated Subsidiary" means at any date any Subsidiary of the Borrower
that is Consolidated on the financial statements of the Borrower.
"Consolidated Tangible Net Worth" means at any date the consolidated
stockholders' or partners' equity of the Borrower and its Consolidated
Subsidiaries less their Consolidated Intangible Assets, all determined as of
such date. For purposes of this definition "Intangible Assets" means with
respect to any such intangible assets, the amount (to the extent reflected in
determining such consolidated stockholders' equity) of (i) all write-ups (other
than write-ups resulting from foreign currency translations and
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write-ups of assets of a going concern business made within twelve months after
the acquisition of such business and write-ups of Real Property Assets based
upon the fair market value ascribed to such Real Property Asset in an Annual
Appraisal on a Valuation Date) in the book value of any asset owned by the
Borrower or a Consolidated Subsidiary and (ii) all unamortized debt discount and
expense, unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, anticipated future benefit of tax loss carry-forwards,
copyrights, organization or developmental expenses and other intangible assets.
"Construction Asset Cost" shall mean, with respect to Development Projects
in which construction has begun (as evidenced by obtaining a permit to commence
such construction by the applicable governmental authority) but has not yet been
substantially completed (substantial completion shall be deemed to mean not less
than 90% completion, as such completion shall be evidenced by a certificate of
occupancy or its equivalent and the commencement of the payment of rent by
tenants of such Development Project), the aggregate, good faith estimated cost
of construction of such improvements (including land acquisition costs).
"Contingent Obligation" as to any Person means, without duplication, (i)
any contingent obligation of such Person required to be shown on such Person's
balance sheet in accordance with GAAP, and (ii) any obligation required to be
disclosed in the footnotes to such Person's financial statements in accordance
with GAAP, guaranteeing partially or in whole any non-recourse Debt, lease,
dividend or other obligation, exclusive of contractual indemnities (including,
without limitation, any indemnity or price-adjustment provision relating to the
purchase or sale of securities or other assets) and guarantees of non-monetary
obligations (other than guarantees of completion) which have not yet been called
on or quantified, of such Person or of any other Person. The amount of any
Contingent Obligation described in clause (ii) shall be deemed to be (a) with
respect to a guaranty of interest or interest and principal, or operating income
guaranty, the sum of all payments required to be made thereunder (which in the
case of an operating income guaranty shall be deemed to be equal to the debt
service for the note secured thereby), calculated at the Applicable Interest
Rate, through (i) in the case of an interest or interest and principal guaranty,
the stated date of maturity of the obligation (and commencing on the date
interest could first be payable thereunder), or (ii) in the case of an operating
income guaranty, the date through which such guaranty will remain in effect, and
(b) with respect to all guarantees not covered by the preceding clause (a), an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such guaranty is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as recorded on the balance sheet and
on
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the footnotes to the most recent financial statements of Borrower required to be
delivered pursuant to Section 4.4 hereof. Notwithstanding anything contained
herein to the contrary, guarantees of completion shall not be deemed to be
Contingent Obligations unless and until a claim for payment or performance has
been made thereunder by the person entitled to performance or payment
thereunder, at which time any such guaranty of completion shall be deemed to be
a Contingent Obligation in an amount equal to any such claim. Subject to the
preceding sentence, (i) in the case of a joint and several guaranty given by
such Person and another Person (but only to the extent such guaranty is directly
or indirectly recourse to such Person), the amount of the guaranty, to the
extent it is directly or indirectly recourse to such Person, shall be deemed to
be 100% thereof unless and only to the extent that such other Person has
delivered Cash or Cash Equivalents to secure all or any part of such Person's
guaranteed obligations, (ii) in the case of joint and several guarantees given
by a Person in whom Borrower owns an interest (which guarantees are non-recourse
to Borrower), to the extent the guarantees, in the aggregate, exceed 15% of
Combined Gross Asset Value, the amount which is the lesser of (x) the amount in
excess of 15% or (y) the amount of Borrower's interest therein shall be deemed
to be a Contingent Obligation of Borrower, and (iii) in the case of any other
guaranty, (whether or not joint and several) of an obligation otherwise
constituting Debt of such Person, the amount of such guaranty shall be deemed to
be only that amount in excess of the amount of the obligation constituting
Indebtedness of such Person. Notwithstanding anything contained herein to the
contrary, "Contingent Obligations" shall not be deemed to include guarantees of
Unused Commitments or of construction loans to the extent the same have not been
drawn.
"Debt" of any Person means, without duplication, (A) as shown on such
Person's balance sheet (i) all indebtedness of such Person for borrowed money or
for the deferred purchase price of property and, (ii) all indebtedness of such
Person evidenced by a note, bond, debenture or similar instrument (whether or
not disbursed in full in the case of a construction loan), (B) the face amount
of all letters of credit issued for the account of such Person and, without
duplication, all unreimbursed amounts drawn thereunder, (C) all Contingent
Obligations of such Person, (D) all payment obligations of such Person under any
interest rate protection agreement (including, without limitation, any interest
rate swaps, caps, floors, collars and similar agreements) and currency swaps and
similar agreements which were not entered into specifically in connection with
Debt set forth in clauses (A), (B) or (C) hereof. For purposes of this
Agreement, Debt (other than Contingent Obligations) of the Borrower shall be
deemed to include only Debt of the Borrower and its Consolidated Subsidiaries
plus the Borrower's pro rata share (such share being based upon the Borrower's
percentage ownership interest as shown on the Borrower's
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annual financial statements) of the Debt of any Person in which the Borrower,
directly or indirectly, owns an interest, provided that such Debt is
nonrecourse, both directly and indirectly, to the Borrower or any Consolidated
Subsidiary.
"Debt Service" shall mean, measured as of the last day of each calendar
quarter, an amount equal to the sum of (i) interest (whether accrued, paid or
capitalized) actually payable by the Borrower and its Consolidated Subsidiaries,
together with the Borrower's pro rata share of such interest actually payable by
Minority Holdings and Joint Ventures, on their Debt for the previous four
consecutive quarters including the quarter then ended, plus (ii) scheduled
payments of principal on Debt of the Borrower and its Consolidated Subsidiaries
(and the Borrower's pro rata share of such payments on Debt of Minority Holdings
and Joint Ventures), whether or not actually paid (excluding balloon payments)
for the previous four consecutive quarters including the quarter then ended.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Development Projects" shall have the meaning set forth in Section 5.1(l)
hereof.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City and/or San Francisco, California
are authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its office located at
its address set forth on the signature pages hereto or such other office as such
Bank may hereafter designate as its Domestic Lending Office by notice to the
Borrower and the Agent.
"Domestic Loans" means Base Rate Loans.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 10.10.
"Environmental Affiliate" means any partnership, or joint venture, trust
or corporation in which an equity interest is owned by the Borrower, either
directly or indirectly.
"Environmental Approvals" means any permit, license, approval, ruling,
variance, exemption or other authorization required under applicable
Environmental Laws by a court or governmental agency having jurisdiction.
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"Environmental Claim" means, with respect to any Person, any written
notice, claim, demand or similar communication by any other Person having
jurisdiction alleging potential liability for investigatory costs, cleanup
costs, governmental response costs, natural resources damage, property damages,
personal injuries, fines or penalties arising out of, based on or resulting from
(i) the presence, or release into the environment, of any Hazardous Substances
at any location, whether or not owned by such Person or (ii) circumstances
forming the basis of any violation, of any applicable Environmental Law, in each
case as to which there is a reasonable possibility of an adverse determination
with respect thereto and which, if adversely determined, would have a Material
Adverse Effect on the Borrower.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to the
environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office, branch or
affiliate located at its address set forth on the signature pages hereto, or
such other office, branch or affiliate of such Bank as it may hereafter
designate as its Euro-Dollar Lending Office by notice to the Borrower and the
Agent.
"Euro-Dollar Loan" means a Loan to be made by a Bank as a Euro-Dollar Loan
in accordance with the applicable Notice of Borrowing.
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"Event of Default" has the meaning set forth in Section 6.1.
"Existing Credit Agreement" has the meaning set forth in the recitals of
this Agreement.
"Extension Date" shall have the meaning set forth in Section 2.8.
"Extension Notice" shall have the meaning set forth in Section 2.8.
"Extension Option" shall have the meaning set forth in Section 2.8.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Xxxxxx Guaranty Trust Company of New
York on such day on such transactions as determined by the Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System as constituted from time to time.
"Fixed Charges" means with respect to any fiscal period, the sum of (a)
interest expense according to GAAP (including capitalized interest) payable
during such period, plus (b) the aggregate of all scheduled principal payments
on Debt according to GAAP payable during that fiscal period and for Debt
guaranteed under a Contingent Obligation (but excluding balloon payments of
principal due upon the stated maturity of a Debt), plus (c) the aggregate of all
dividends payable on the Borrower's or any Consolidated Subsidiary's preferred
stock, to the extent such charges are paid or incurred, as applicable, by
Borrower and its Consolidated Subsidiaries or, with respect to Minority Holdings
and Joint Ventures, in each case to the extent of Borrower's or the applicable
Consolidated Subsidiary's allocable share of such payments. For the purposes of
this definition, (i) interest on Fixed Rate Indebtedness shall be the actual
interest payable on such Debt and (ii) interest on Floating Rate Indebtedness
shall be assumed to be the greater of (A) the actual interest payable on such
Debt or (B) an assumed interest rate per annum to be approved by the Agent for
tax-
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exempt Debt and an assumed interest rate of nine percent (9%) per annum for
non-tax-exempt Debt, except that, if any of the foregoing in (A) or (B) above is
subject to an interest rate cap agreement purchased by the Borrower or a
Consolidated Subsidiary, the interest rate shall be assumed to be the lower of
the actual interest payable on such Debt or the capped rate of such interest
rate cap agreement. In no event shall any dividends payable on the Borrower's or
any Consolidated Subsidiary's common stock be included in Fixed Charges.
"Fixed Rate Indebtedness" means all Debt which accrues interest at a fixed
rate.
"Floating Rate Indebtedness" means all Debt which is not Fixed Rate
Indebtedness and which is not a Contingent Obligation or an Unused Commitment.
"Funds From Operations" means net income (computed in accordance with
GAAP) before extraordinary items, excluding gains (or losses) from debt
restructuring and sales of property, plus depreciation and amortization, and
after adjustments for unconsolidated partnerships and joint ventures.
Adjustments for unconsolidated partnerships and joint ventures will be
calculated to reflect funds from operations on the same basis.
"GAAP" means generally accepted accounting principles recognized as such
in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"General Partner Guaranty" means an Unconditional Guaranty Agreement in
substantially the form of Exhibit H attached hereto and made a part hereof (with
blanks appropriately completed) delivered to the Agent in connection with the
guaranty by the general partner of the New Borrower of the New Borrower's
obligations under this Agreement, in accordance with the provisions of Section
9.2.
"Gross Asset Value" shall mean (i) with respect to a Real Property Asset
that has not been subject to a Valuation Date (i.e., no Valuation Date has
occurred more than twelve (12) months after Borrower acquired, directly or
indirectly, the Real Property Asset), the Acquisition Price of such Real
Property Asset plus any Capital Expenditures actually incurred by the Borrower
or its Subsidiary in connection with such Real Property Asset (which, for the
purpose of this definition shall include any expenditures that would have been
considered Capital Expenditures except that they were made with respect to the
acquisition by the Borrower or its Consolidated Subsidiaries of any interest in
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a Real Property Asset within twelve months after the date such interest in asset
was acquired) and (ii) with respect to a Real Property Asset that has been
subject to a Valuation Date (i.e., a Valuation Date has occurred more than
twelve (12) months after Borrower acquired the Real Property Asset), the lower
of (x) the Appraised Value of such asset or (y) the "carrying value" of such
asset as determined by an internal review of the Borrower and (iii) with respect
to a Borrowing Base Property from which a Separate Parcel which originally
formed a part of such Borrowing Base Property is released or sold in accordance
with this Agreement, until a Valuation Date occurs with respect to such
remaining Borrowing Base Property (at which time the value shall be the lower of
the Appraised Value or the "carrying value" of such asset), a value ascribed to
such remaining Borrowing Base Property by the Agent in its sole discretion.
"Guarantor" has the meaning ascribed to it in the Guaranty.
"Guaranty" means that certain Unconditional Guaranty Agreement, dated as
of October 25, 1996, by AIF and RIF, jointly and severally, as the same may be
amended, supplemented, modified or restated from time to time.
"Hazardous Substances" means any toxic, radioactive, caustic or otherwise
hazardous substance, identified as such as a matter of Environmental Law,
including petroleum, its derivatives, by-products and other hydrocarbons, or any
substance having any constituent elements displaying any of the foregoing
characteristics.
"Improved Asset" means a Real Property Asset upon which material
construction of material improvements has commenced or upon which material
improvements have been constructed.
"Indemnitee" has the meaning set forth in Section 10.3(b).
"Information" has the meaning set forth in Section 9.2.
"Interest Period" means: (1) with respect to each Euro-Dollar Borrowing,
the period commencing on the date of such Borrowing and ending one, two, three
or six months thereafter, as the Borrower may elect in the applicable Notice of
Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
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(b) any Interest Period which begins on the last Euro-Dollar
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, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) if any Interest Period includes a date on which a payment of
principal of the Loans is required to be made under Section 2.9 but does
not end on such date, then (i) the principal amount (if any) of each
Euro-Dollar Loan required to be repaid on such date shall have an Interest
Period ending on such date and (ii) the remainder (if any) of each such
Euro-Dollar Loan shall have an Interest Period determined as set forth
above.
(2) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing and ending 30 days thereafter; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) if any Interest Period includes a date on which a payment of
principal of the Loans is required to be made under Section 2.9 but does
not end on such date, then (i) the principal amount (if any) of each Base
Rate Loan required to be repaid on such date shall have an Interest Period
ending on such date and (ii) the remainder (if any) of each such Base Rate
Loan shall have an Interest Period determined as set forth above.
"Investment Grade Rating" means a rating for a Person's senior long-term
unsecured debt of BBB- or better from S&P, and a rating of Baa3 or better from
Moody's, if ratings from both Rating Agencies are obtained.
"IPO" has the meaning set forth in Section 9.1.
"Joint Ventures" means partnerships, corporations or other entities held
or owned jointly by the Borrower or a Consolidated Subsidiary of Borrower and
one or more Persons which Persons are not Consolidated with Borrower.
"Leverage Ratio" has the meaning set forth in Section 5.9(a).
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"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, the
Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan" means a Domestic Loan or a Euro-Dollar Loan and "Loans" means
Domestic Loans or Euro-Dollar Loans or any combination of the foregoing.
"Loan Amount" shall mean the amount of Two Hundred Million Dollars
($200,000,000).
"Loan Documents" means this Agreement, the Notes and the Guaranty.
"London Interbank Offered Rate" has the meaning set forth in Section
2.6(b).
"Mandatory Prepayment Event" has the meaning set forth in Section 2.9(d).
"Margin Stock" shall have the meaning provided such term in Regulation U
and Regulation G of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse effect upon (i) the
business, operations, properties or assets of the Borrower and its Consolidated
Subsidiaries or (ii) the ability of the Borrower to pay debt service on the
Loans, as such debt service becomes due from time to time.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $5,000,000.
"Maturity Date" shall have the meaning set forth in Section 2.8.
"Maximum Loan Amount" means the Loan Amount, as the Loan Amount may be
reduced pursuant to Section 2.10(c).
"Merger" shall have the meaning set forth in Section 9.1.
"Minority Holdings" means partnerships and corporations held or owned by
the Borrower which are not Consolidated with Borrower on Borrower's financial
statements.
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"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Xxxxxx" means Xxxxxx Guaranty Trust Company of New York, in its
individual capacity.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Net Income" shall mean net income of the Borrower and its Consolidated
Subsidiaries determined in accordance with GAAP.
"Net Operating Cash Flow" means, as of any date of determination, with
respect to all Real Property Assets, Minority Holdings and Joint Ventures of
Borrower and its Consolidated Subsidiaries (with respect to Minority Holdings
and Joint Ventures, Borrower's or the applicable Consolidated Subsidiary's
allocable share only), Property Income for the previous four consecutive
quarters including the quarter then ended, but less (x) Property Expenses with
respect to all such Real Property Assets, Minority Holdings and Joint Ventures
(with respect to Minority Holdings and Joint Ventures, Borrower's or the
applicable Consolidated Subsidiary's allocable share only) for the previous four
consecutive quarters including the quarter then ended and (y) appropriate
reserves for replacements of not less than $.50 per square foot per annum for
each Real Property Asset that is primarily a retail use property and not less
than $.35 per square foot per annum for each Real Property Asset that is
primarily an industrial use property.
"New Acquisitions" has the meaning set forth in Section 2.14.
"New Borrower" has the meaning set forth in Section 9.1.
"New Borrower Assumption" has the meaning set forth in Section 9.2.
"New Borrower Notes" means promissory notes of the New Borrower,
substantially in the form of Exhibit E hereto, evidencing the obligation of the
New Borrower to repay the Loans, as the same may be amended, supplemented,
modified or restated from time to time, and "New Borrower Note" means any one of
such promissory notes issued hereunder.
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"Non-Recourse Debt" Debt of a Person for which the right of recovery of
the obligee thereof is limited to recourse against the Real Property Assets
securing such Debt (subject to such limited exceptions as fraud,
misappropriation, misapplication and environmental indemnities as are usual and
customary in similar transactions at the time such Debt is incurred).
"Notes" means promissory notes of the Borrower, substantially in the form
of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans, as the same may be amended, supplemented, modified or restated from time
to time, and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Borrowing (as defined in Section
2.2).
"Obligations" means all obligations, liabilities and indebtedness of every
nature of the Borrower, from time to time owing to any Bank under or in
connection with this Agreement or any other Loan Document.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 10.6(b).
"Permitted Liens" means (a) Liens to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds, completion bonds,
government contracts or other obligations of a like nature, including Liens in
connection with workers' compensation, unemployment insurance and other types of
statutory obligations or to secure the performance of tenders, bids, leases,
contracts (other than for the repayment of Debt) and other similar obligations
incurred in the ordinary course of business; (b) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded; provided, that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor; (c)
Liens on property of either Borrower or any Subsidiary thereof in favor of the
Federal or any state government to secure certain payments pursuant to any
contract, statute or regulation; (d) easements (including, without limitation,
reciprocal easement agreements and utility agreements),
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rights of way, covenants, consents, reservations, encroachments, variations and
zoning and other restrictions, charges or encumbrances (whether or not
recorded), which do not interfere materially with the ordinary conduct of the
business of the Borrower or any Subsidiary thereof and which do not materially
detract from the value of the property to which they attach or materially impair
the use thereof by the Borrower or Subsidiary; (e) statutory Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen or other Liens
imposed by law and arising in the ordinary course of business, for sums not then
due and payable (or which, if due and payable are being contested in good faith
and with respect to which adequate reserves are being maintained to the extent
required by GAAP); (f) Liens not otherwise permitted by this definition and
incurred in the ordinary course of business of the Borrower or any Subsidiary
with respect to obligations which do not exceed $100,000 in principal amount
with respect to any Separate Parcel and do not exceed $1,000,000 in principal
amount in the aggregate, in each case at any one time outstanding; and (g) the
interests of lessees and lessors under leases of real or personal property made
in the ordinary course of business which would not have a material adverse
effect on the Borrower and its Consolidated Subsidiaries taken as a whole.
"Person" means an individual, a corporation, a partnership, an
association, a trust, limited liability company or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Plan Asset Regulations" means the Department of Labor Regulation Section
2510.3-101, 29 C.F.R. Section 2510.3-101.
"Prime Rate" means the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Pro-Forma Debt Service" means as of any date of determination, an amount
equal to the greater of (x) the product of: (A) the average Unsecured Debt
outstanding at
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the end of each of the previous four quarters, including the quarter then ended,
as set forth on the Borrower's balance sheet, and (B) the Treasury Rate plus
1.75%, plus an amount equal to the principal that would be required to be repaid
by applying a 25 year mortgage style amortization schedule thereto; and (y) Debt
Service for Unsecured Debt for the previous four quarters including the quarter
then ended.
"Property Expenses" means, when used with respect to any Real Property
Asset, the costs of maintaining such Real Property Asset, including, without
limitation, taxes, insurance, repairs and maintenance, but excluding
depreciation, amortization and interest costs and Capital Expenditures.
"Property Income" means, when used with respect to any Real Property
Asset, revenues therefrom (including, without limitation, lease termination fees
appropriately amortized), less deferred rents receivable, calculated, in each
case, in accordance with GAAP.
"Rated Unsecured Debt" means, Investment Grade Debt which is Unsecured
Debt and which has an Investment Grade Rating.
"Rating Agencies" means, collectively, Standard & Poor's Ratings Group,
Xxxxx'x Investors' Services, Inc., Duff & Xxxxxx Credit Rating Co., and Fitch
Investor Services, L.P., or any successor to any of the foregoing.
"REOC" shall mean a "real estate operating company" within the meaning of
Section 2510.3-101(e) of the Plan Asset Regulations.
"Required Occupancy Level" means, with respect to any Borrowing Base
Property, that during any twelve (12) month period, no less than an average of
85% of the rentable square feet of such Borrowing Base Property is occupied by
tenants pursuant to written leases for which no default has occurred beyond
applicable notice and cure periods.
"RIF" shall mean AMB Retail Income Fund, Inc., a Maryland corporation and
a wholly-owned direct Subsidiary of the Borrower.
"Real Property Assets" means the real property assets or interests therein
(including interests in participating mortgages in which the Borrower's interest
therein is characterized as equity according to GAAP) currently owned directly
or indirectly by the Borrower or its Consolidated Subsidiaries (including the
form the real property asset is held, such as a partnership, limited liability
company or corporation) and listed on Schedule 4.17(a) annexed hereto,
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as such may be modified from time to time to reflect sales, transfers,
assignments, conveyances, acquisitions and purchases of real property assets.
"Recourse Debt" means Debt of a Person that is not Non-Recourse Debt.
"Reference Bank" means the principal London offices of Xxxxxx Guaranty
Trust Company of New York.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 66-2/3% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 66-2/3% of the aggregate unpaid
principal amount of the Loans.
"Secured Debt" means Debt of a Person that is secured by a Lien.
"Separate Parcel" means a Real Estate Asset that is a single, legally
subdivided, separately zoned parcel that can be legally transferred or conveyed
separate and distinct from any other Real Estate Asset without benefit of any
other Real Estate Asset.
"Solvent" as to any Person shall mean that such Person is not "insolvent"
within the meaning of Section 101(32) of the Bankruptcy Code or Section 271 of
the Debtor and Creditor Law of the State of New York.
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Borrower.
"Subsidiary Guaranties" shall have the meaning set forth in Section 9.2.
"S&P" means S&P Ratings Group and its successors.
"Term" has the meaning set forth in Section 2.8.
"Termination Event" shall mean (i) a "reportable event", as such term is
described in Section 4043 of ERISA (other than a "reportable event" not subject
to the provision for 30-day notice to the PBGC), or an event described in
Section 4062(e) of ERISA, (ii) the withdrawal by any member of the ERISA Group
from a Multiemployer Plan during a
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plan year in which it is a "substantial employer" (as defined in Section
4001(a)(2) of ERISA), or the incurrence of liability by any member of the ERISA
Group under Section 4064 of ERISA upon the termination of a Multiemployer Plan,
(iii) the filing of a notice of intent to terminate any Plan under Section 4041
of ERISA, other than in a standard termination within the meaning of Section
4041 of ERISA, or the treatment of a Plan amendment as a distress termination
under Section 4041 of ERISA, (iv) the institution by the PBGC of proceedings to
terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or cause a trustee to be appointed to administer, any Plan
or (v) any other event or condition that might reasonably constitute grounds for
the termination of, or the appointment of a trustee to administer, any Plan or
the imposition of any liability or encumbrance or Lien on the Real Property
Assets or any member of the ERISA Group under ERISA.
"Title Company" means, with respect to each Borrowing Base Property, a
title insurance company of recognized national standing.
"Title Commitment" means, for each Borrowing Base Property, an ALTA fee or
leasehold title commitment or title policy issued by the Title Company at the
time of acquisition by the Borrower or its Subsidiary.
"Total Liabilities" means, without duplication, all liabilities
(determined in accordance with GAAP) and all other Debt (to the extent such Debt
is not a "liability" as determined in accordance with GAAP) of the Borrower and
its Consolidated Subsidiaries and Borrower's pro rata share of liabilities
(including the pro rata share of Debt) of Minority Holdings and Joint Ventures,
based on Borrower's percentage ownership of such Minority Holdings and Joint
Ventures.
"Treasury Rate" means, as of any date, a rate equal to the annual yield to
maturity on the U.S. Treasury Constant Maturity Series with a ten year maturity,
as such yield is reported in Federal Reserve Statistical Release H.15 --
Selected Interest Rates, published most recently prior to the date the
applicable Treasury Rate is being determined. Such yield shall be determined by
straight line linear interpolation between the yields reported in Release H.15,
if necessary. In the event Release H.15 is no longer published, the Agent shall
select, in its reasonable discretion, an alternate basis for the determination
of Treasury yield for U.S. Treasury Constant Maturity Series with ten year
maturities.
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"UCC Searches" has the meaning set forth in Section 3.1(n).
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Unimproved Assets" means Real Property Assets (i) upon which no material
construction of material improvements has been commenced and (ii) which are
either not contiguous to an Improved Asset or, if contiguous to an Improved
Asset, were not acquired at the same time as the Improved Asset, or if
contiguous to an Improved Asset and acquired at the same time as an Improved
Asset, the net operating income (capitalized in accordance with industry
standard) of the Improved Asset was, at time of acquisition, insufficient to
support the acquisition price of such Improved Asset plus an 8% rate of return
on the investment; all Unimproved Assets will continue to be deemed Unimproved
Assets until such time as the chief financial officer or chief accounting
officer of Borrower shall certify to the Agent that material construction of
material improvements has commenced thereon.
"Unimproved Land Value" means the aggregate Gross Asset Value of
Unimproved Assets.
"United States" means the United States of America, including the states
and the District of Columbia, but excluding its territories and possessions.
"Unsecured Assets" means assets of a Person which are not subject to a
Lien (other than Permitted Liens).
"Unsecured Debt" means Debt of a Person which is not secured by a Lien.
"Unsecured Senior Debt" means the Obligations and other Unsecured Debt of
the Borrower.
"Unused Commitments" means an amount equal to all unadvanced funds (other
than unadvanced funds in connection with any construction loan) which any third
party is obligated to advance to the Borrower or otherwise, pursuant to any loan
document, written instrument or otherwise.
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"Unused Facility" shall mean the amount, calculated daily, by which the
Commitments exceed the sum of the outstanding principal amount of the Loans.
"Valuation Date" means September 30 of each year at which time the
Borrower shall determine the Gross Asset Value of each Real Property Asset
acquired directly or indirectly by Borrower or its Subsidiaries more than twelve
(12) months prior to the Valuation Date, or such other date(s) as determined by
Borrower's board of directors, such that all such Real Property Assets are
valued annually although such Valuation Date need not be the same date for all
Real Property Assets.
"VCOC" shall mean a "venture capital operating company" within the meaning
of Section 2510.2-101(d) of the Plan Asset Regulations.
SECTION 1.2. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP as
in effect from time to time, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants) with the most
recent audited Consolidated financial statements of the Borrower and its
Consolidated Subsidiaries delivered to the Banks; provided that, if the Borrower
notifies the Agent that the Borrower wishes to amend any covenant in Article V
to eliminate the effect of any change in GAAP on the operation of such covenant
(or if the Agent notifies the Borrower that the Required Banks wish to amend
Article V for such purpose), then the Borrower's compliance with such covenant
shall be determined on the basis of GAAP in effect immediately before the
relevant change in GAAP became effective, until either such notice is withdrawn
or such covenant is amended in a manner satisfactory to the Borrower and the
Required Banks. The Agent acknowledges that GAAP for the Borrower and its
Consolidated Subsidiaries is "current value reporting" as supplemented by
National Counsel of Real Estate Investment Fiduciaries standards.
SECTION 1.3. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article II on a single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement by reference to the pricing of Loans
comprising such Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing
comprised of Euro-Dollar Loans).
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ARTICLE II
THE CREDITS
SECTION 2.1. Commitments to Lend. During the Term, each Bank severally
agrees, on the terms and conditions set forth in this Agreement, to make loans
to the Borrower pursuant to this Section from time to time in amounts such that
the aggregate principal amount of Loans by such Bank at any one time outstanding
shall not exceed the amount of its Commitment. The aggregate amount of Loans to
be made hereunder shall not exceed the Maximum Loan Amount. At no time shall
there be more than ten (10) Euro-Dollar Loans outstanding. Each Borrowing under
this subsection (a) shall be in an aggregate principal amount of not less than
$5,000,000, or an integral multiple of $1,000,000 in excess thereof (except that
any such Borrowing may be in the aggregate amount available in accordance with
Section 3.2(c)) and shall be made from the several Banks ratably in proportion
to their respective Commitments. Upon the expiration of the Term, the Banks
shall have no further obligation to make loans to Borrower. Within the foregoing
limits, the Borrower may borrow under this Section, repay, or to the extent
required by Section 2.9 or permitted by Section 2.10, prepay Loans and reborrow
at any time during the Term.
SECTION 2.2. Notice of Borrowing. The Borrower shall give the Agent notice
(a "Notice of Borrowing") not later than 1:00 p.m. (New York City time) (y) one
(1) Domestic Business Day before each Base Rate Borrowing, or (z) three (3)
Euro-Dollar Business Days before each Euro-Dollar Borrowing, as applicable,
specifying:
(a) the date of such Borrowing, which shall be a Domestic Business Day
in the case of a Domestic Borrowing or a Euro-Dollar Business Day in the case of
a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing are to be Base Rate
Loans or Euro-Dollar Loans, and
(d) in the case of a Euro-Dollar Borrowing, the duration of the Interest
Period applicable thereto, subject to the provisions of the definition of
Interest Period, except that no Interest Period shall extend beyond the Maturity
Date, as such may be extended pursuant to Section 2.8 hereof.
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SECTION 2.3. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's share (if any) of
such Borrowing and such Notice of Borrowing shall thereafter only be revocable
by the Borrower no later than (y) with respect to a Base Rate Borrowing, 5:00
p.m. (New York City time) one Domestic Business Day before each Base Rate
Borrowing or (z) with respect to a Euro-Dollar Borrowing, 3:00 p.m. (New York
City time) three (3) Euro-Dollar Business Days before each Euro-Dollar
Borrowing. Upon the expiration of such applicable time periods, the Notice of
Borrowing shall not thereafter be revocable by Borrower.
(b) Not later than 2:00 p.m. (New York City time) on the date of each
Borrowing as indicated in the Notice of Borrowing, each Bank participating
therein shall (except as provided in subsection (c) of this Section) make
available its share of such Borrowing, in Federal or other funds immediately
available in New York City, to the Agent at its address referred to in Section
10.1. Unless the Agent determines that any applicable condition specified in
Article III has not been satisfied, the Agent will make the funds so received
from the Banks available to the Borrower at the Agent's aforesaid address.
(c) Unless the Agent shall have received notice from a Bank prior to the
date of any Borrowing that such Bank will not make available to the Agent such
Bank's share of such Borrowing, the Agent may assume that such Bank has made
such share available to the Agent on the date of such Borrowing in accordance
with subsection (b) of this Section 2.3 and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Bank shall not have so made such share available
to the Agent, such Bank and the Borrower severally agree to repay to the Agent
forthwith within ten (10) days after demand therefore such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the Agent, at
(i) in the case of the Borrower, a rate per annum equal to the higher of the
Federal Funds Rate and the interest rate applicable thereto pursuant to Section
2.6 and (ii) in the case of such Bank, the Federal Funds Rate. If such Bank
shall repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for purposes of this
Agreement. The failure of any Bank to make any Loan on a date of Borrowing
hereunder shall not relieve any other Bank of any obligation hereunder to make a
Loan on such date. Notwithstanding the foregoing and any other provision to the
contrary contained herein, if any
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Bank shall have failed to fund its share of a previously requested Loan on the
applicable date of Borrowing and Borrower provides a new Notice of Borrowing as
a result of such failure to fund, then, if necessary to make such Borrowing,
Borrower shall be permitted a single additional Loan (beyond that permitted by
Section 2.1, if a Euro-Dollar Loan) and the $5,000,000 minimum Borrowing limit
elsewhere referred to in the Credit Agreement shall not apply to such new
Borrowing.
SECTION 2.4. Notes.
(a) The Loans of each Bank shall be evidenced by a single Note payable
to the order of such Bank for the account of its Applicable Lending Office in an
amount equal to the aggregate unpaid principal amount of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and the Agent, request that
its Loans of a particular type be evidenced by a separate Note in an amount
equal to the aggregate unpaid principal amount of such Bank's Loans. Each such
Note shall be in substantially the form of Exhibit A hereto with appropriate
modifications to reflect the fact that it evidences solely Loans of the relevant
type for such Bank. Each reference in this Agreement to the "Note" of such Bank
shall be deemed to refer to and include any or all of such Notes, as the context
may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.1(a), the
Agent shall forward such Note to such Bank. Each Bank shall record the date,
amount, type and maturity of each Loan made by it and the date and amount of
each payment of principal made by the Borrower with respect thereto, and may, if
such Bank so elects in connection with any transfer or enforcement of its Note,
endorse on the schedule forming a part thereof appropriate notations to evidence
the foregoing information with respect to each such Loan then outstanding;
provided that the failure of any Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Notes. Each Bank is hereby irrevocably authorized by the Borrower so to
endorse its Note and to attach to and make a part of its Note a continuation of
any such schedule as and when required which continuation shall be deemed
correct absent manifest error.
SECTION 2.5. Maturity of Loans. Each Loan included in any Borrowing shall
mature, and the principal amount thereof shall be due and payable, on the last
day of the Interest Period applicable to such Borrowing.
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SECTION 2.6. Interest Rates.
(a) Each Base Rate Loan shall bear interest on the outstanding principal
amount thereof for each day from the date such Loan is made until the date it is
repaid at a rate per annum equal to the Base Rate plus the Applicable Margin for
Base Rate Loans for such day. Such interest shall be payable for each Interest
Period on the last day thereof.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin for Euro-
Dollar Loans for such day plus the Adjusted London Interbank Offered Rate
applicable to such Interest Period. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period is longer
than three months, at intervals of three months after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (i) the applicable London
Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
the Reference Bank in the London interbank market at approximately 11:00 a.m.
(London time) two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the principal amount of the
Euro-Dollar Loan of the Reference Bank to which such Interest Period is to apply
and for a period of time comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars
in respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank
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Offered Rate shall be adjusted automatically on and as of the effective date of
any change in the Euro-Dollar Reserve Percentage.
(c) 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 Loans,
and, to the extent permitted by applicable law, overdue interest in respect of
all Loans, shall bear interest at the annual rate of the sum of the Prime Rate
and four percent (4%).
(d) The Agent shall determine each interest rate applicable to the Loans
hereunder. The Agent shall give prompt notice to the Borrower and the
participating Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(e) The Reference Bank agrees to use its best efforts to furnish
quotations to the Agent as contemplated by this Section. If the Reference Bank
does not furnish a timely quotation, the provisions of Section 8.1 shall apply.
SECTION 2.7. Fees.
(a) Commitment Fee. During the Term, the Borrower shall pay Agent for
the account of the Banks ratably in proportion to their respective Commitments a
commitment fee (the "Commitment Fee") accruing at a per annum rate equal to the
then applicable Commitment Fee Percentage on the daily average undrawn
Commitments. The Commitment Fee shall be payable quarterly in arrears on each
October 31, January 31, April 30, and July 31 during the Term.
(b) Extension Fee. Within three (3) Domestic Business Days after the
Borrower shall have received notice from the Agent that the Extension Notice has
been approved, the Borrower shall pay to the Agent for the account of the Banks
ratably in proportion to their Commitments an extension fee of one quarter of
one percent (1/4%) of the aggregate Commitments.
(c) Fees Non-Refundable. All fees set forth in this Section 2.7 shall be
deemed to have been earned on the date payment is due in accordance with the
provisions of this Agreement and shall be non-refundable. The obligation of the
Borrower to pay such fees in accordance with the provisions of this Agreement
shall be binding upon the Borrower and shall inure to the benefit of the Agent
and the Banks regardless of whether any Loans are actually made.
SECTION 2.8. Mandatory Expiration. The term (the "Term") of the
Commitments shall terminate and expire on the
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date which is the second anniversary of the Closing Date (or, if such date is
not a Domestic Business Day, then the next succeeding Domestic Business Day)
(the "Maturity Date"); except that, subject to the following conditions, the
Borrower shall have the option (the "Extension Option") exercisable upon
delivery by the Borrower of written notice thereof to the Agent (the "Extension
Notice") on or before the date which is 60 days prior to the Maturity Date to
extend the Term of the Commitments and the Maturity Date for an additional one
year period, such that the Term shall expire on the third anniversary of the
Closing Date (which Extension Notice, the Agent shall promptly deliver to the
Banks). The Borrower's right to exercise the Extension Option shall be subject
to the following terms and conditions: (i) the Agent and the Banks holding no
less than 75% of the aggregate Commitments consent in writing to such extension
within thirty (30) days after the Agent's receipt of the Extension Notice, which
consent shall be in the sole discretion of the Agent and the Banks (if Banks
holding less than 100%, but not less than 75%, of the aggregate Commitments
shall have consented to the extension, the Agent shall promptly notify the
consenting Banks and the Borrower thereof, and the Borrower and the consenting
Banks shall have an additional ten Domestic Business Days to consent to the
extension of the Maturity Date without the participation of 100% of the Banks),
(ii) no Default or Event of Default shall have occurred and be continuing both
on the date Borrower delivers the Extension Notice to the Agent and on the
second anniversary of the Closing Date (the "Extension Date"), and (iii) the
Borrower shall pay to the Agent, for the account of the Banks, on the Extension
Date the Extension Fee. Borrower's delivery of the Extension Notice shall be
irrevocable. Upon the date of the termination of the Term, any Loans then
outstanding (together with accrued interest thereon) shall be due and payable.
In the event that Banks holding less than 100% but not less than 75% of the
aggregate Commitments consent to the extension of the term without the
participation of 100% of the Banks commencing on the Extension Date, the
aggregate Commitment shall be reduced by the Commitments of the Banks not
consenting to such extension and on the Extension Date, such non-consenting
Banks shall be released from any obligations to Borrower hereunder. On the
Extension Date, the non-consenting Banks shall receive from Borrower and
Borrower shall pay to such non-consenting Banks all amounts due to such
non-consenting Banks with respect to their respective Commitments as if such
date were the Maturity Date with respect to such Commitments and the failure of
the Borrower to repay such amounts on the Extension Date shall constitute an
Event of Default hereunder. Unless (i) Borrower shall have notified the Agent
prior to 11:00 a.m. (New York time) on the Domestic Business Day immediately
prior to the Extension Date that Borrower intends to pay the Agent any such
amounts due
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to such non-consenting Banks or (ii) there are insufficient undrawn and
uncancelled Commitments remaining in the facility, Borrower shall be deemed to
have timely given a Notice of Borrowing pursuant to Section 2.2. to the Agent,
requesting a Borrowing of Base Rate Loans on the Extension Date in an amount
equal to the amount due to such non-consenting Banks.
SECTION 2.9. Mandatory Prepayment.
(a) In the event that a Borrowing Base Property (or any Separate Parcel
that originally formed a part of a Borrowing Base Property) is sold, transferred
or released from the restrictions of Section 5.11 hereof, in accordance with
this Agreement, the Borrower shall simultaneously with such sale, transfer or
release, prepay an amount equal to in the event of a sale or transfer, 100% of
the net proceeds of such sale or transfer or in the event of a release, such
amount as shall be required for the Borrower to remain in compliance with this
Agreement. Notwithstanding the foregoing, a simultaneous like-kind exchange
under Section 1031 of the Internal Revenue Code will not be subject to the
provisions of this Section 2.9(a) provided that the exchanged property has
qualified as a New Acquisition and any "boot" associated therewith shall be
applied to prepayment of the Loans. Sale of a property in violation of this
Section 2.9 shall constitute an Event of Default.
(b) Intentionally Omitted.
(c) Any prepayment pursuant to this Section 2.9 shall be applied first
to any Base Rate Loans then outstanding, then to any Euro-Dollar Loans with the
shortest remaining Interest Periods. In connection with the prepayment of a
Euro-Dollar Loan prior to the maturity thereof, the Borrower shall also pay any
applicable expenses pursuant to Section 2.12. Each such prepayment shall be
applied to prepay ratably the Loans of the Banks. Notwithstanding the foregoing,
in the event any Mandatory Prepayment Event would result in the Borrower
incurring expenses pursuant to Section 2.12, at Borrower's written request to be
delivered on the date of any prepayment pursuant to this Section 2.9 (if
Borrower fails to deliver such a request, then such expenses pursuant to Section
2.12, if any, shall be immediately due and payable), the Agent shall create an
interest-bearing escrow account with Agent or Agent's designee to receive funds
that would have been applied to pre-pay Euro-Dollar Loans prior to the end of
the applicable Interest Periods, which funds will be held by Agent or Agent's
designee until the earlier of (x) an Event of Default hereunder (in which event
such funds shall be immediately applied without notice to the outstanding
Euro-Dollar Loans) or (y) such time as an Interest Period shall end whereupon
the Agent shall apply
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such funds to pay the Euro-Dollar Loan relating to such expiring Interest Period
or (z) Agent has received a Notice of Borrowing with respect to such escrowed
funds together with a certificate of the Borrower's chief financial officer or
chief accounting officer certifying that upon the distribution of such funds to
Borrower as new Loans, the Borrower will be in compliance with the requirements
of Section 5.9 and containing information required by Section 5.1(c)(i) and (ii)
hereof to establish such compliance.
(d) Any event referred to in Section 2.9(a) or (b) above that results in
a required prepayment of the Loans pursuant to this Section 2.9 shall be
referred to as a "Mandatory Prepayment Event".
SECTION 2.10. Optional Prepayments.
(a) The Borrower may, upon at least five (5) Domestic Business Days'
notice to the Agent, prepay any Base Rate Borrowing in whole at any time, or
from time to time in part in amounts aggregating not less than One Million
Dollars ($1,000,000) or any larger multiple of One Million Dollars ($1,000,000),
by paying the principal amount to be pre-paid together with accrued interest
thereon to the date of prepayment. Each such optional prepayment shall be
applied to prepay ratably the Loans of the several Banks included in such
Borrowing.
(b) Except as provided in Section 8.2, the Borrower may not prepay all
or any portion of the principal amount of any Euro-Dollar Loan prior to the
maturity thereof unless the Borrower shall also pay any applicable expenses
pursuant to Section 2.12. Notice of such prepayment shall be delivered to Agent
by Borrower, upon at least five (5) Domestic Business Days notice. Each such
optional prepayment shall be in the amounts set forth in Section 2.10(a) above
and shall be applied to prepay ratably the Loans of the Banks included.
(c) The Borrower may cancel all or any portion of the Commitments by the
delivery to Agent of a notice of cancellation within the applicable time periods
and minimum amounts set forth in Sections 2.10(a) and (b) above if there are
Loans then outstanding or, if there are no Loans outstanding at such time, upon
at least five (5) Domestic Business Days notice to Agent, whereupon, in either
event, such Commitments so designated by Borrower shall terminate on the date
set forth in such notice of cancellation, and, if there are any Loans then
outstanding in excess of the Commitments after giving effect to such
termination, Borrower shall prepay such Loans outstanding on such date in
accordance with the requirements of Section 2.10(a) and (b).
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(d) Upon receipt of a notice of prepayment or cancellation from Borrower
pursuant to this Section, the Agent shall promptly notify each Bank of the
contents thereof and of such Bank's ratable share (if any) of such prepayment or
cancellation and such notice shall thereafter be revocable by the Borrower no
later than 10:00 a.m. (New York City time) three (3) Domestic Business Days
before the date originally set forth by Borrower in the applicable notice of
prepayment or cancellation as the prepayment or cancellation date. Upon the
expiration of such time period, the notice of prepayment or cancellation shall
be irrevocable.
(e) Any amounts prepaid pursuant to Sections 2.10(a) or (b) may be
reborrowed. Any amounts cancelled pursuant to Section 2.10(c) may not be
reborrowed.
SECTION 2.11. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and interest
on, the Loans and of fees required hereunder, not later than 1:00 p.m. (New York
City time) on the date when due, in Federal or other funds immediately available
in New York City, to the Agent at its address referred to in Section 10.1. The
Agent will promptly distribute to each Bank its ratable share of each such
payment received by the Agent for the account of the Banks. Whenever any payment
of principal of, or interest on, the Base Rate Loans or of fees required
hereunder shall be due on a day which is not a Domestic Business Day, the date
for payment thereof shall be extended to the next succeeding Domestic Business
Day. Whenever any payment of principal of, or interest on, the Euro-Dollar Loans
shall be due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding Euro-Dollar
Business Day. If the date for any payment of principal is extended by operation
of law or otherwise, interest thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrower prior
to the date on which any payment is due to the Banks hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment, each Bank shall repay to the
Agent forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to such
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Bank until the date such Bank repays such amount to the Agent, at the Federal
Funds Rate.
SECTION 2.12. Funding Losses. If the Borrower makes any payment of
principal with respect to any Euro-Dollar Loan (pursuant to Article II, VI or
VIII or otherwise) on any day other than the last day of the Interest Period
applicable thereto, or the last day of an applicable period fixed pursuant to
Section 2.6(b), or if the Borrower fails to borrow any Euro-Dollar Loans, after
notice has been given to any Bank in accordance with Section 2.3(a) and not
revoked as permitted in this Agreement, then and only then shall Borrower
reimburse each Bank within 15 days after demand therefor for any resulting loss
or expense reasonably incurred by it (or by an existing or prospective
Participant in the related Loan), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties, but
excluding loss of margin for the period after any such payment or failure to
borrow, provided that such Bank shall have delivered to the Borrower a
certificate signed by an authorized officer of such Bank as to the amount of
such loss or expense reasonably incurred, which certificate shall be conclusive
in the absence of manifest error.
SECTION 2.13. Computation of Interest and Fees. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.14. Use of Proceeds. The Borrower shall use the proceeds of the
Loans solely for (i) the acquisition by either AIF or RIF (either directly or
indirectly through Subsidiaries) of real estate properties (or interests
therein) which are primarily industrial (including warehouse/distribution, light
industrial and light assembly) or retail (including neighborhood or community
shopping centers and similar sub-regional properties) with land adjacent or
incidental thereto (the "New Acquisitions"), (ii) such other costs and expenses
attendant with such acquisitions and improvements, including, without
limitation, closing costs, attorneys' fees and expenses and other professional
fees, architectural fees, advisory fees of the Advisor, due diligence expenses,
title insurance premiums, survey preparation costs, recording fees, appraisal
fees, engineering and environmental fees, licensing and regulatory filing fees,
brokerage commissions, leasing commissions, reasonable tenant improvement costs,
(iii) payoff of Loans
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under Section 2.8 hereof, if applicable, to non-consenting banks in the event
that Banks holding not less than 75% of the aggregate Commitments have consented
to the Borrower's exercise of the Extension Option, (iv) construction,
renovation, rehabilitation and alteration of Real Property Assets or other
Capital Expenditures, and (v) general working capital needs of Borrower, AIF or
RIF or Consolidated Subsidiaries of either AIF or RIF not to exceed a maximum
amount of $30,000,000 with respect to such working capital needs (collectively,
"Approved Uses").
ARTICLE III
CONDITIONS
SECTION 3.1. Closing. The closing hereunder shall occur on the date (the
"Closing Date") when each of the following conditions is satisfied (or waived by
the Agent), each document to be dated the Closing Date unless otherwise
indicated:
(a) the Borrower shall have executed and delivered to the Agent a Note
for the account of each Bank dated on or before the Closing Date complying with
the provisions of Section 2.4;
(b) the Borrower and Agent shall have executed and delivered to the
Agent a duly executed original of this Agreement;
(c) Each of AIF and RIF shall have executed and delivered the
Confirmation of Guaranty;
(d) Agent shall have received an enforceability opinion of Xxxxxx &
Xxxxxxx, New York and California counsel for the Borrower, reasonably acceptable
to the Agent, the Banks and their counsel;
(e) Agent shall have received an opinion of Xxxxxxxx & Xxxxxxxx LLP,
ERISA counsel for the Borrower (i) with respect to the REOC or VCOC status of
the Borrower, AIF and RIF and (ii) that this transaction will not constitute a
nonexempt prohibited transaction (as such term is defined in Section 4975 of the
Code or Section 406 of ERISA) that could subject the Agent and/or the Banks to
any tax or penalty on prohibited transactions imposed under Section 4975 of the
Code or Section 502(i) of ERISA, reasonably acceptable to the Agent, the Banks
and their counsel;
(f) Agent shall have received all documents Agent may reasonably request
relating to the existence of the Borrower, AIF and RIF, the authority for and
the validity of this
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Agreement and the other Loan Documents, and any other matters relevant hereto,
all in form and substance reasonably satisfactory to the Agent. Such
documentation shall include, without limitation, the articles of incorporation
of each of the Borrower, AIF and RIF, as amended, modified or supplemented to
the Closing Date, certified to be true, correct and complete by a senior officer
of the Borrower as of a date not more than twenty (20) days prior to the Closing
Date, together with a good standing certificate from the Secretary of State (or
the equivalent thereof) of the State or States in which Borrower, AIF and RIF
are incorporated and from the Secretary of State (or the equivalent thereof) of
each other State in which a Borrowing Base Property is located and in which any
of the Borrower, AIF and RIF is required to be qualified to transact business,
each to be dated not more than twenty (20) days prior to the Closing Date;
(g) Agent shall have received all certificates, agreements and other
documents referred to in this Section 3.1 and Section 3.2, unless otherwise
specified, in sufficient counterparts, satisfactory in form and substance to the
Agent in its sole discretion;
(h) Borrower, AIF and RIF shall have taken all actions required to
authorize the execution and delivery of this Agreement and the other Loan
Documents to which it is a party and the performance thereof by the Borrower,
AIF and RIF;
(i) Agent shall be satisfied that the Borrower is not subject to any
present or contingent Environmental Claim which could have a Material Adverse
Effect;
(j) Agent shall have received a Consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries for the period ended June 30, 1997;
(k) Agent shall have received wire transfer instructions in connection
with any Loans to be made on the Closing Date;
(l) Agent shall have received, for its and any other Bank's account, (i)
all fees due and payable pursuant to Section 2.7 hereof on or before the Closing
Date, and (ii) the reasonable fees and expenses accrued through the Closing Date
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP;
(m) Agent shall have received copies of all consents, licenses and
approvals, if any, required in connection with the execution, delivery and
performance by the Borrower, AIF and RIF, and the validity and enforceability,
of the Loan Documents, or in connection with any of the transactions
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contemplated thereby, and such consents, licenses and ap- provals shall be in
full force and effect in all material respects;
(n) Agent shall have received satisfactory reports of UCC (collectively,
the "UCC Searches"), tax lien, and judgment searches conducted by a search firm
reasonably acceptable to Agent with respect to the Borrowing Base Properties,
the Borrower, AIF and RIF, such searches to be conducted by Borrower's counsel
in each of the locations specified by the Agent;
(o) the Agent shall have received with respect to each Borrowing Base
Property, a copy of the engineer's inspection report obtained by the Borrower or
its Subsidiary in connection with the acquisition of such Borrowing Base
Property;
(p) the Agent shall have received with respect to each Borrowing Base
Property, (i) a description of the Borrowing Base Property, (ii) two years of
historical cash flow operating statements with respect to such Borrowing Base
Property, if available, (iii) five years of cash flow projections (including
capital expenditures), (iv) a map and site plan, (v) an investment memorandum
prepared by the Borrower in connection with the acquisition of the Borrowing
Base Property by Borrower or its Subsidiary (which memorandum shall include, but
not be limited to, an analysis prepared by the Borrower of the credit quality
and viability of each existing tenant of such Borrowing Base Property which
occupies more than 15% of such Borrowing Base Property or accounts for more than
15% of the base rentals of such Borrowing Base Property), and (vi) to the extent
obtained by the Borrower or, as applicable, the Subsidiary in connection with
such acquisition, evidence of zoning compliance (which evidence can include a
"lawyer's letter" from a local counsel engaged by Borrower at the time of
acquisition);
(q) the Agent shall have received certificates of insurance with respect
to each Borrowing Base Property demonstrating the coverage required under this
Agreement;
(r) the Agent shall have received with respect to each Borrowing Base
Property, a copy of the Title Commitment obtained by the Subsidiary that owns or
leases each such Borrowing Base Property in connection with the acquisition of
each such Borrowing Base Property;
(s) the Agent shall have received a compliance certificate from
Borrower's chief financial officer or chief accounting officer certifying
compliance with Section 5.9 hereof containing such information as is required by
Section 5.1(c)(i) and (ii);
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44
(t) the Agent shall have received with respect to each Borrowing Base
Property, a copy of the environmental report obtained by the Subsidiary that
owns or leases each such Borrowing Base Property in connection with the
acquisition of each such Borrowing Base Property; and
(u) the Agent shall have received with respect to each Borrowing Base
Property such additional information with respect to each Borrowing Base
Property, the Subsidiary that owns or leases such Borrowing Base Property, and
the tenants of such Borrowing Base Property as the Agent or any Bank shall
reasonably request.
Agent shall promptly notify Borrower and the Banks of the Closing Date.
SECTION 3.2. Borrowings. The obligation of any Bank to make a Loan on the
occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) the Closing Date shall have occurred on or prior to August 8, 1997;
(b) receipt by Agent of a Notice of Borrowing as required by Section
2.2;
(c) immediately after such Borrowing, the aggregate outstanding
principal amount of the Loans will not exceed the Maximum Loan Amount;
(d) immediately after such Borrowing, the aggregate outstanding
principal amount of the Loans will not exceed the aggregate amount of the
Commitments (as reduced pursuant to Section 2.10(c)) and with respect to each
Bank, such Bank's pro rata portion of the Loans will not exceed such Bank's
Commitment (as reduced pursuant to Section 2.10(c)).
(e) immediately before and after such Borrowing, no Default or Event of
Default shall have occurred and be continuing both before and after giving
effect to the making of such Loans;
(f) the representations and warranties of the Borrower contained in this
Agreement shall be true and correct in all material respects on and as of the
date of such Borrowing both before and after giving effect to the making of such
Loans;
(g) 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 does or, with respect to any threatened
litigation, seeks to enjoin, prohibit or restrain, the
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making or repayment of the Loans or the consummation of the transactions
contemplated by this Agreement;
(h) no event, act or condition shall have occurred after the Closing
Date which, in the reasonable judgment of the Agent or the Banks, as the case
may be, has had or is likely to have a Material Adverse Effect;
(i) with respect to any portion of the $30,000,000 of the proceeds of
the Loans solely available for the payment of working capital needs of the
Borrower, AIF, RIF and any Subsidiaries of AIF or RIF in accordance with Section
2.14, receipt by the Agent of a certificate of the chief financial officer or
the chief accounting officer of the Borrower certifying that the applicable
Borrower will use the proceeds of such Loan for working capital needs of the
Borrower, AIF, RIF and/or any Subsidiaries of AIF or RIF and briefly describing
such needs;
(j) receipt by the Agent of a certificate of the chief financial officer
or the chief accounting officer of the Borrower certifying that as of the date
of such Borrowing, the Borrower is in compliance Section 5.9 and containing such
information as is required by Section 5.1(c) (i) and (ii); and
(k) receipt by the Agent of a certificate of the chief financial officer
or the chief accounting officer of the Borrower certifying that, as applicable,
AIF or RIF shall receive the proceeds of the Loan and will use the proceeds of
such Loan for Approved Uses and briefly describing such Approved Uses.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(c), (d), (e), (f), and (g) of this Section.
SECTION 3.3. Borrowing Base Properties.
(a) For purposes of this Agreement, the term "Borrowing Base Properties"
shall mean (i) the Real Property Assets listed in Exhibit B attached hereto and
made a part hereof, each of which shall be 100% owned in fee (or lease-hold in
the case of assets listed as such on Exhibit B) by AIF or RIF or any
Consolidated Subsidiary of AIF or RIF and each of which is not subject to any
Lien (other than Permitted Liens), subject to adjustment as set forth herein,
together with (ii) all New Acquisitions or Real Property Assets each of which is
100% owned in fee or leasehold by AIF or RIF or any Consolidated Subsidiary of
AIF or RIF, each of which is not subject to a Lien (other than Permitted Liens),
none of which is an interest in a participating
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mortgage, all as certified by Borrower pursuant to a certificate in
substantially the form of Exhibit G attached hereto delivered to Agent at the
time that Borrower submits such New Acquisition or Real Property Asset for
inclusion as a Borrowing Base Property, and, if applicable, each of which have
become part of the Borrowing Base Properties as of such date in accordance with
Section 3.4 hereof.
(b) Except as set forth in clause (c) below, Real Property Assets (i)
which have been released from this Agreement and the other Loan Documents as of
such date in accordance with Sections 5.11 or Section 5.12 or any other
provision of this Agreement, or (ii) which have failed to maintain the Required
Occupancy Level for any twelve month period, shall be excluded as "Borrowing
Base Properties" for purposes of this Agreement.
(c) Notwithstanding the foregoing clause (b), Separate Parcels which,
for a period of no longer than twelve months, do not maintain the Required
Occupancy Level but which otherwise satisfy the requirements set forth in
Section 3.3(a) or Section 3.4 for inclusion as Borrowing Base Properties may be
included as Borrowing Base Properties provided that the aggregate Gross Asset
Value for such Separate Parcels shall not constitute more than ten percent (10%)
of the aggregate Gross Asset Value of the remaining Borrowing Base Properties,
as of any date of determination. In the event that the aggregate Gross Asset
Value of such Separate Parcels would, as of any date, constitute more than ten
percent of the Gross Asset Value of the remaining Borrowing Base Properties,
only those Separate Parcels for which the aggregate Gross Asset Value would
constitute 10% or less shall be deemed to be included as Borrowing Base
Properties hereunder.
SECTION 3.4. Conditions Precedent to New Acquisitions and Additional Real
Property Assets.
(a) Until such time as Borrower shall receive at least one (1)
Investment Grade Rating, from either S&P or Xxxxx'x, all New Acquisitions or
Real Property Assets to be added to the Borrowing Base Properties of Borrower
shall be approved by the Required Banks. The approval right set forth in this
clause (a) shall be of no further force or effect for so long as Borrower's
Credit Rating is an Investment Grade Rating. Notwithstanding the foregoing, if
Borrower receives a rating that is not Investment Grade from either S&P or
Xxxxx'x, until such time as Borrower has received an Investment Grade Rating
from each of S&P and Xxxxx'x, all New Acquisitions or Real Property Assets to be
added to the Borrowing Base Properties of Borrower shall be approved by the
Required Banks.
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(b) The Borrower shall submit to the Agent the materials set forth below
(the "Due Diligence Package") relating to each potential New Acquisition or Real
Property Assets that the Borrower desires to be added to the Borrowing Base
Properties. The Due Diligence Package shall include (i) a description of the
Real Property Asset or New Acquisition, (ii) two years of historical cash flow
operating statements, if available, (iii) five years of cash flow projections
(including capital expenditures), (iv) a map and site plan, (v) an investment
memorandum prepared by the Borrower in connection with the acquisition of the
Borrowing Base Property by Borrower or its Subsidiary (which memorandum shall
include, but not be limited to, an analysis prepared by the Borrower of the
credit quality and viability of each existing tenant of such Borrowing Base
Property which occupies more than 15% of such Borrowing Base Property or
accounts for more than 15% of the base rentals of such Borrowing Base Property),
(vi) to the extent obtained by the Borrower or, as applicable, the Subsidiary in
connection with such acquisition, evidence of zoning compliance (which evidence
can include a "lawyer's letter" from a local counsel engaged by Borrower at the
time of acquisition), (vi) a copy of the engineer's inspection report obtained
by the Borrower or its Subsidiary in connection with the acquisition of such New
Acquisition or Real Property Asset, (vii) a copy of the Title Commitment
obtained by the Subsidiary that owns or leases (or will own or lease) each such
New Acquisition or Real Property Asset, (viii) a copy of the environmental
report obtained by the Subsidiary that owns or leases (or will own or lease)
each such New Acquisition or Real Property Asset in connection with the
acquisition of each such Borrowing Base Property and (ix) such additional
information with respect to each New Acquisition or Real Property Asset, the
Subsidiary that owns or leases such New Acquisition or Real Property Asset, and
the tenants of such New Acquisition or Real Property Asset as the Agent or any
Bank shall reasonably request. The Borrower shall permit the Agent at all
reasonable times and upon reasonable prior notice to make an inspection of such
New Acquisition or Real Property Asset
(c) The Borrower shall distribute a copy of each item constituting the
Due Diligence Package by overnight mail to each of the Banks for their review
and approval. Failure to respond to the Agent in writing by any Bank within ten
(10) Domestic Business Days after receipt of the Due Diligence Package, shall be
deemed to be an approval by such Bank of such potential New Acquisition or Real
Property Asset.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and each of the other Banks which may become
a party to this Agreement to make the Loans, the Borrower makes the following
representations and warranties as of the Closing Date. Such representations and
warranties, shall survive the effectiveness of this Agreement, the execution and
delivery of the other Loan Documents and the making of the Loans.
SECTION 4.1. Existence and Power. The Borrower (or, if Borrower is a
partnership, Borrower's general partner) is a real estate investment trust, duly
formed, validly existing and in good standing as a corporation under the laws of
Maryland. Each of AIF and RIF is a corporation, duly formed, validly existing
and in good standing under the laws of Maryland. Each of the Borrower, AIF and
RIF has all powers and all material governmental licenses, authorizations,
consents and approvals required to own its property and assets and carry on its
business as now conducted or as it presently proposes to conduct and has been
duly qualified and is in good standing in every jurisdiction in which the
failure to be so qualified and/or in good standing is likely to have a Material
Adverse Effect.
SECTION 4.2. Power and Authority. Each of the Borrower, AIF and RIF has
the corporate power and authority to execute, deliver and carry out the terms
and provisions of each of the Loan Documents to which it is a party and has
taken all necessary corporate action to authorize the execution and delivery on
behalf of, as applicable, the Borrower, AIF and/or RIF and the performance by
the Borrower, AIF and RIF of such Loan Documents to which it is a party. Each of
the Borrower, AIF and RIF has duly executed and delivered each Loan Document to
which it is a party, and each such Loan Document constitutes the legal, valid
and binding obligation of such party, enforceable in accordance with its terms,
except as enforceability may be limited by applicable insolvency, bankruptcy or
other laws affecting creditors rights generally, or general principles of
equity, whether such enforceability is considered in a proceeding in equity or
at law.
SECTION 4.3. No Violation. Neither the execution, delivery or performance
by or on behalf of the Borrower, AIF or RIF of the Loan Documents to which it is
a party, nor compliance by the Borrower, AIF or RIF with the terms and
provisions thereof nor the consummation of the transactions contemplated by the
Loan Documents, (i) will contravene any applicable provision of any material
law, statute, rule, regulation, order, writ, injunction or decree of any court
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or governmental instrumentality or (ii) will conflict, in any material respect,
with or result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a material default under, or result in the creation
or imposition of (or the obligation to create or impose) any Lien upon any of
the property or assets of the Borrower, AIF or RIF or any of its Consolidated
Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust,
subscription agreement or other agreement or other instrument to which the
Borrower, AIF or RIF (or of any partnership of which the Borrower, AIF or RIF is
a partner) or any of their Consolidated Subsidiaries is a party or by which it
or any of its property or assets is bound or to which it is subject, or (iii)
will cause a default by the Borrower, AIF or RIF under any subscription
agreement or any other organizational document of any Person in which the
Borrower, AIF or RIF or any Consolidated Subsidiary has an interest, or cause a
default under the articles of incorporation or by laws or Borrower, AIF or RIF.
SECTION 4.4. Financial Information.
(a) The Consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries dated December 31, 1996 and the related Consolidated statements of
the Borrower's financial position for the fiscal year then ended, audited by
Xxxxxx Xxxxxxxx & Co., L.L.P., a copy of which has been delivered to the Agent
fairly present, in conformity with GAAP, the Consolidated financial position of
the Borrower and its Consolidated Subsidiaries of such date and their results of
operations and cash flows for such fiscal year.
(b) The Consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries for the period ending June 30, 1997, a copy of which has been
delivered to the Agent, fairly present, in conformity with GAAP, the
Consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their Consolidated results of operations and
cash flows for such period.
(c) Since June 30, 1997, (i) there has been no material adverse change
in the business, financial position or results of operations of the Borrower and
its Consolidated Subsidiaries and (ii) except as previously disclosed to the
Agent, none of the Borrower nor any of its Consolidated Subsidiaries has
incurred any material indebtedness or guaranty.
SECTION 4.5. Litigation. There is no material action, suit or proceeding
pending against, or to the actual knowledge of the Borrower, after due inquiry,
threatened against or adversely affecting, (i) the Borrower or any of its
Subsidiaries, (ii) the Loan Documents or any of the transac-
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50
tions contemplated by the Loan Documents or (iii) any of its assets, before any
court or arbitrator or any governmental body, agency or official in which there
is a reasonable possibility of an adverse decision which could, individually, or
in the aggregate materially adversely affect the business, Consolidated
financial position or Consolidated results of operations of the Borrower or its
Consolidated Subsidiaries or which in any manner draws into question the
validity of this Agreement or the other Loan Documents.
SECTION 4.6. Compliance with ERISA.
(a) Each Borrower, AIF or RIF is either a REOC or VCOC.
(b) The transactions contemplated by the Loan Documents will not
constitute a nonexempt prohibited transaction (as such term is defined in
Section 4975 of the Code or Section 406 of ERISA) that could subject the Agent
or the Banks to any tax or penalty or prohibited transactions imposed under
Section 4975 of the Code or Section 502(i) of ERISA.
(c) Each member of the ERISA Group has fulfilled its obligations under
the minimum funding standards of ERISA and the Internal Revenue Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Internal Revenue Code with
respect to each Plan. No member of the ERISA Group has (i) sought a waiver of
the minimum funding standard under Section 412 of the Internal Revenue Code in
respect of any Plan, (ii) failed to make any contribution or payment to any Plan
or Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security under
ERISA or the Internal Revenue Code or (iii) incurred any liability under Title
IV of ERISA other than a liability to the PBGC for premiums under Section 4007
of ERISA.
SECTION 4.7. Environmental Matters. In the ordinary course of its
business, the Borrower conducts a periodic review of the effect of Environmental
Laws on the business, operations and properties of the Borrower and its
Subsidiaries, including, without limitation, the Real Property Assets, in the
course of which it seeks to identify and evaluate applicable liabilities and
costs (including, without limitation, any capital or operating expenditures
required as a matter of Environmental Law for clean-up or closure of properties
presently or previously owned, any capital or operating expenditures required as
a matter of Environmental Law to achieve or maintain compliance with Envi-
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ronmental Law or as a condition of any license, permit or contract to which
Borrower is a party or a beneficiary, any related constraints on operating
activities, including any periodic or permanent shutdown of any facility or
reduction in the level of or change in the nature of operations conducted
thereat, any costs or liabilities in connection with off-site disposal of wastes
or Hazardous Substances, and any actual or potential liabilities to third
parties, including employees, and any related costs and expenses). On the basis
of this review, the Borrower has reasonably concluded that such associated
potential liabilities and costs, including the costs of compliance with
Environmental Laws, are unlikely to have a Material Adverse Effect.
SECTION 4.8. Taxes. The Borrower and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due and payable
pursuant to such returns or pursuant to any assessment received by the Borrower
or any Subsidiary. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of taxes or other governmental charges
are, in the reasonable judgment of the Borrower, adequate.
SECTION 4.9. Full Disclosure. All information heretofore furnished by or
on behalf of the Borrower and its Subsidiaries to the Agent or any Bank for
purposes of or in connection with this Agreement or any transaction contemplated
hereby is, and all such information hereafter furnished by the Borrower to the
Agent or any Bank will be, true and accurate in all material respects on the
date as of which such information is stated. The Borrower has disclosed to the
Banks in writing any and all facts which, in Borrower's reasonable judgment,
materially and adversely affect or may affect (to the extent the Borrower can
now reasonably foresee), the business, operations or financial condition of the
Borrower and its Consolidated Subsidiaries, taken as a whole, or the ability of
the Borrower to perform its obligations under this Agreement or the other Loan
Documents in any material respect.
SECTION 4.10. Solvency. On the Closing Date and after and giving effect to
the transactions contemplated by the Loan Documents occurring on the Closing
Date, each of Borrower, AIF and RIF will be Solvent.
SECTION 4.11. Use of Proceeds; Margin Regulations. All proceeds of the
Loans will be used by the Borrower only in accordance with the provisions of
this Agreement. No part of the proceeds of any Loan will be used by the Borrower
to purchase or carry any Margin Stock or to extend credit to others for the
expressed purpose of purchasing or carrying any Margin Stock. Neither the making
of any Loan nor
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the use of the proceeds thereof will violate or be inconsistent with the
provisions of Regulations G, T, U or X of the Federal Reserve Board.
SECTION 4.12. Governmental Approvals. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection with
the execution, delivery and performance of any Loan Document or the consummation
of any of the transactions contemplated thereby other than those that have
already been duly made or obtained and remain in full force and effect.
SECTION 4.13. Investment Company Act; Public Utility Holding Company Act.
The Borrower is not (x) an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended, (y) a "holding company" or a "subsidiary company" of a "holding
company" or an "affiliate" of either a "holding company" or a "subsidiary
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended, or (z) subject to any other federal or state law or regulation which
purports to restrict or regulate its ability to borrow money.
SECTION 4.14. Closing Date Transactions. On the Closing Date and
immediately prior to the making of the Loans, the transactions (other than the
making of the Loans) intended to be consummated on the Closing Date will have
been consummated in accordance with all applicable laws. All material consents
and approvals of, and all material filings and registrations with, and all other
material actions by, any Person required in order to make or consummate such
transactions have been obtained, given, filed or taken and are in full force and
effect.
SECTION 4.15. Representations and Warranties in Loan Documents. All
representations and warranties made by the Borrower in the Loan Documents are
true and correct in all material respects as of the date of this Agreement and
as of any date that Borrower is expressly obligated to confirm the same under
this Agreement.
SECTION 4.16. Patents, Trademarks, Etc. The Borrower and its Consolidated
Subsidiaries have obtained and hold in full force and effect all patents,
trademarks, service marks, trade names, copyrights and other such rights, free
from burdensome restrictions, which are necessary for the operation of their
business as presently conducted, the impairment of which is likely to have a
Material Adverse Effect. To the Borrower's knowledge, no material product,
process, method, substance, part or other material presently
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sold by or employed by the Borrower or its Consolidated Subsidiaries in
connection with such business infringes any patent, trademark, service xxxx,
trade name, copyright, license or other such right owned by any other Person.
There is not pending or, to the Borrower's knowledge, threatened any claim or
litigation against or affecting Borrower or its Consolidated Subsidiaries
contesting its right to sell or use any such product, process, method,
substance, part or other material.
SECTION 4.17. Ownership of Property. Schedule 4.17(a) attached hereto and
made a part hereof sets forth all the real property owned or leased by the
Borrower and Persons in which the Borrower, directly or indirectly, owns an
interest as of the Closing Date. As of the Closing Date, the Borrower and such
Persons have good and insurable fee simple title (or leasehold title if so
designated on Schedule 4.17(a) to all of such real property, subject to
customary encumbrances and liens as of the date of this Agreement. As of the
date of this Agreement, there are no mortgages, deeds of trust, indentures, debt
instruments or other agreements creating a Lien against any of the Real Property
Assets except as disclosed on Schedule 4.17(b).
SECTION 4.18. No Default. No Default or Event of Default exists under or
with respect to any Loan Document. The Borrower (nor any Consolidated
Subsidiary) is not in default in any material respect beyond any applicable
grace period under or with respect to any other material agreement, instrument
or undertaking to which it is a party or by which it or any of its property is
bound in any respect, the existence of which default is likely to result in a
Material Adverse Effect.
SECTION 4.19. Licenses, Etc. The Borrower (and each of its Consolidated
Subsidiaries) has obtained and holds in full force and effect, all material
franchises, licenses, permits, certificates, authorizations, qualifications,
accreditations, easements, rights of way and other consents and approvals which
are necessary for the operation of its business as presently conducted, the
absence of which is likely to have a Material Adverse Effect.
SECTION 4.20. Compliance With Law. The Borrower (and each of its
Consolidated Subsidiaries) and each of the Real Property Assets is in compliance
with all material laws, rules, regulations, orders, judgments, writs and
decrees, including, without limitation, all building and zoning ordinances and
codes, the failure to comply with which is likely to have a Material Adverse
Effect.
SECTION 4.21. No Burdensome Restrictions. The Borrower (and each of its
Consolidated Subsidiaries) is not a
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party to any agreement or instrument or subject to any other obligation or any
charter or corporate or partnership restriction, as the case may be, which,
individually or in the aggregate, is likely to have a Material Adverse Effect
except in the event of a default thereunder.
SECTION 4.22. Brokers' Fees. The Borrower has not dealt with any broker or
finder with respect to the transactions contemplated by the Loan Documents or
otherwise in connection with this Agreement.
SECTION 4.23. Labor Matters. There are no collective bargaining agreements
or Multiemployer Plans covering any employees of the Borrower (or any of its
Consolidated Subsidiaries).
SECTION 4.24. Insurance. The Borrower (and each of its Consolidated
Subsidiaries) currently maintains all insurance which is required to be
maintained by Section 5.3 hereof.
SECTION 4.25. Organizational Documents. The documents delivered pursuant
to Section 3.1(f) constitute, as of the Closing Date, all of the organizational
documents (together with all amendments and modifications thereof) of the
Borrower. The Borrower represents that it has delivered to the Agent true,
correct and complete copies of each of the documents set forth in this Section
3.1(f).
SECTION 4.26. Principal Offices. The principal office, chief executive
office and principal place of business of each of the Borrower, AIF and RIF is
000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx.
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Bank has any
Commitment hereunder or any Obligations remain unpaid:
SECTION 5.1. Information. The Borrower will deliver to each of the Banks:
(a) as soon as reasonably available and in any event within 95 days
after the end of each fiscal year of the Borrower, a Consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries as of the end of such fiscal
year and the related Consolidated statements of operations for such fiscal year
prepared by Xxxxxx Xxxxxxxx & Co.,
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L.L.P. or other independent public accountants of nationally recognized
standing;
(b) as soon as available and in any event within 50 days after the end
of each of the first three quarters of each fiscal year of the Borrower, (i) a
Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
of the end of such quarter and the related Consolidated statements of operations
for such quarter and for the portion of the Borrower's fiscal year ended at the
end of such quarter, all certified (subject to normal year-end adjustments) as
to fairness of presentation, GAAP and consistency by the chief financial officer
or the chief accounting officer of the Borrower; (ii) an acquisition status
report, with respect to each Real Property Asset acquired during such quarter,
in form reasonably satisfactory to the Agent, setting forth all acquisition
activity during such quarterly period, including a description of such Real
Property Asset and the Acquisition Price thereof and (iii) such other
information reasonably requested by the Agent or any Bank;
(c) simultaneously with the delivery of each set of financial statements
referred to in clauses (a) and (b) above, a certificate of the chief financial
officer or the chief accounting officer of the Borrower (i) setting forth in
reasonable detail the calculations required to establish whether the Borrower
was in compliance with the requirements of Section 5.9 on the date of such
financial statements; (ii) stating whether any Default, Event of Default or
Mandatory Prepayment Event exists on the date of such certificate and with
respect to a Mandatory Prepayment Event, whether it existed at any time during
the period covered by such financial statements, and, if any Default, Event of
Default or Mandatory Prepayment Event then exists, setting forth the details
thereof and the action which the Borrower is taking or proposes to take with
respect thereto; and (iii) certifying (x) that such financial statements fairly
present the financial condition and the results of operations of the Borrower on
the dates and for the periods indicated, on the basis of GAAP, with respect to
the Borrower subject, in the case of interim financial statements, to normally
recurring year-end adjustments, and (y) that such officer has reviewed the terms
of the Loan Documents and has made, or caused to be made under his or her
supervision, a review in reasonable detail of the business and condition of the
Borrower during the period beginning on the date through which the last such
review was made pursuant to this Section 5.1(c) (or, in the case of the first
certification pursuant to this Section 5.1(c), the Closing Date) and ending on a
date not more than ten (10) Domestic Business Days prior to the date of such
delivery and that (1) on the basis of such financial statements and such review
of the Loan Documents, no Event of Default existed under Section 6.1(b) with
respect to Section
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5.9 at or as of the date of said financial statements, and (2) on the basis of
such review of the Loan Documents and the business and condition of the
Borrower, to the actual knowledge of such officer, no Default or Event of
Default under any other provision of Section 6.1 occurred or, if any such
Default or Event of Default has occurred and is then continuing, specifying the
nature and extent thereof and, if continuing, the action the Borrower proposes
to take in respect thereof and (3) on the basis of such review of the Loan
Documents and the business and condition of the Borrower, no Mandatory
Prepayment Event then exists or has existed during the period since the last
review pursuant to this Section 5.1(c). Such certificate shall set forth the
calculations required to establish the matters described in clause (i) above;
(d) (i) within seven (7) days after the chief financial officer or chief
accounting officer of Borrower, AIF or RIF or any Consolidated Subsidiary of any
of the foregoing obtains knowledge of any Default or a Mandatory Prepayment
Event, if such Default or Mandatory Prepayment Event is then continuing, a
certificate of such officer setting forth the details thereof and the action
which the Borrower is taking or proposes to take with respect thereto; (ii)
promptly and in any event within ten (10) days after the chief financial officer
or chief accounting officer of Borrower, AIF or RIF or any Consolidated
Subsidiary of any of the foregoing obtains knowledge thereof, notice of (x) any
litigation or governmental proceeding pending or actions threatened against the
Borrower or the Real Property Assets as to which there is a reasonable
possibility of an adverse determination and which, if adversely determined, is
likely to individually or in the aggregate, result in a Material Adverse Effect,
and (y) any other event, act or condition which is likely to result in a
Material Adverse Effect;
(e) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statement so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Borrower shall have filed with the Securities and
Exchange Commission;
(g) promptly and in any event within ten (10) Domestic Business Days
after the Borrower obtains actual knowledge of any of the following events, a
certificate of the Borrower, executed by an officer of the Borrower, specifying
the nature of such condition and the Borrower's or, if the Borrower has actual
knowledge thereof, the Environmental Affil-
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iate's proposed initial response thereto: (i) the receipt by the Borrower, or,
if the Borrower has actual knowledge thereof, any of the Environmental
Affiliates of any written communication, whether from a governmental authority,
citizens group, employee or otherwise, that alleges that the Borrower, or, if
the Borrower has actual knowledge thereof, any of the Environmental Affiliates,
is not in compliance with applicable Environmental Laws, and such noncompliance
is likely to have a Material Adverse Effect, (ii) the Borrower shall obtain
actual knowledge that there exists any Environmental Claim pending or threatened
against the Borrower or any Environmental Affiliate or (iii) the Borrower
obtains actual knowledge of any release, emission, discharge or disposal of any
Hazardous Substances that is likely to form the basis of any Environmental Claim
against the Borrower or any Environmental Affiliate;
(h) within ten (10) Domestic Business Days after receipt of any material
notices or correspondence from any company or agent for any company providing
insurance coverage to the Borrower relating to any material loss of the
Borrower, copies of such notices and correspondence;
(i) within ten (10) Domestic Business Days after receipt of any Annual
Appraisal prepared in connection with any Valuation Date, the Borrower shall
deliver a copy of such Annual Appraisal to Agent together with the certificate
of the chief financial officer or chief accounting officer certifying as to the
"carrying value" of such Real Property Asset as determined by an internal review
conducted by the Borrower;
(j) no less than ten (10) Domestic Business Days prior to a sale,
transfer or conveyance of any Borrowing Base Property, Borrower shall deliver a
certificate of the chief financial officer or the chief accounting officer of
the Borrower certifying that such officer has reviewed the terms of the Loan
Documents and has made, or caused to be made under his or her supervision, a
review in reasonable detail of the business and condition of the Borrower during
the period beginning on the date through which the last such review was made
pursuant to Section 5.1(c) hereof and ending on a date not more than twenty (20)
Domestic Business Days prior to the date of such delivery and that (1) on the
basis of such review of the Loan Documents and assuming such sale, transfer or
conveyance is actually consummated, no Mandatory Prepayment Event exists and no
Event of Default exists under Section 6.1(b) with respect to Section 5.9 at or
as of the date of said sale, transfer or conveyance and (2) on the basis of such
review of the Loan Documents and the business and condition of the Borrower and
assuming the Transfer is actually consummated, to the actual knowledge of such
officer, no Default or Event of Default under any
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other provision of Section 6.1 occurred or, if any such Default or Event of
Default has occurred and is then continuing, specifying the nature and extent
thereof and, if continuing, the action the Borrower proposes to take in respect
thereof.
(k) within 50 days after the end of each quarter of each fiscal year of
Borrower, an updated Schedule 4.17(a) and 4.17(b), certified by the chief
financial officer or chief accounting officer of the Borrower as true, correct
and complete as of the date such updated schedules are delivered;
(l) within 50 days after June 30 and December 31, a statement containing
(i) a listing of all new construction projects and Real Property Assets then
undergoing significant rehabilitation (collectively, "Development Projects"),
(ii) a list of overall cash payments and disbursements for each such Development
Project, and (iii) a reasonable good faith estimate of the cost to complete each
such Development Project, such that such Development Project is open to the
public and available for rental, together with a certification of the chief
financial officer or chief accounting officer of the Borrower certifying that,
as of the date of such certification, such statement is true and correct and
fairly represents the scope, expenses, costs of completion of such Development
Projects.
(m) within 30 days after filing of the annual income tax return with the
Internal Revenue Service, a certificate of the chief financial officer or chief
accounting officer of the Borrower certifying that Borrower is properly
classified and continues to qualify as a real estate investment trust under the
Internal Revenue Code and has taken all actions consistent with maintaining such
status;
(n) simultaneously with delivery of the information required by Sections
5.1(a) and (b), a statement of Borrowing Base Net Operating Cash Flow with
respect to each Borrowing Base Property and a list of all Borrowing Base
Properties;
(o) promptly upon receipt thereof, any notice or communication from any
Rating Agency regarding any change in Borrower's Credit Rating;
(p) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably request in writing; and
(q) within 50 days after the end of each quarter of each fiscal year of
Borrower, a certificate of the chief
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financial officer or chief accounting officer of Borrower certifying whether or
not each Borrowing Base Property has maintained the Required Occupancy Level for
the previous twelve month period (as of the end of such quarter).
SECTION 5.2. Payment of Obligations. The Borrower (and each of its
Consolidated Subsidiaries) will pay and discharge, at or before maturity, all
its respective material obligations and liabilities, including, without
limitation, any obligation pursuant to any agreement by which it or any of its
properties is bound and any tax liabilities, except where such tax liabilities
may be contested in good faith by appropriate proceedings, and will maintain in
accordance with GAAP, appropriate reserves for the accrual of any of the same.
SECTION 5.3. Maintenance of Property; Insurance.
(a) The Borrower will keep (or cause to be kept through its leases at
the respective Real Property Assets), and will cause each Subsidiary to keep,
all property useful and necessary in its business, including without limitation
the Real Property Assets, in good repair, working order and condition, ordinary
wear and tear excepted.
(b) The Borrower currently maintains, or causes its tenants to maintain,
insurance at 100% replacement cost insurance coverage (subject to customary
deductibles) in respect of each of the Real Property Assets, as well as
commercial general liability insurance (including "builders' risk") against
claims for personal, and bodily injury and/or death, to one or more persons, or
property damage, as well as workers' compensation insurance, in each case with
respect to the Real Property Assets with insurers having an A.M. Best
policyholders' rating of not less than A-IX in amounts that prudent owner of
assets such as the Real Property Assets would maintain.
SECTION 5.4. Conduct of Business and Maintenance of Existence. The
Borrower will continue to engage in, and will cause AIF and RIF to continue to
engage in, business of the same general type as now conducted by the Borrower,
AIF or RIF, as applicable, and will preserve, renew and keep in full force and
effect, its corporate existence and its respective rights, privileges and
franchises necessary or desirable in the normal conduct of business.
SECTION 5.5. Compliance with Laws. The Borrower will comply (and will
cause each of its Subsidiaries to comply) in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws, and
all zoning and building codes with respect to the
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Real Property Assets, all laws, rules and regulations with respect to its status
as a real estate investment trust under the Code and ERISA and the rules and
regulations thereunder) except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings.
SECTION 5.6. Inspection of Property, Books and Records. The Borrower will
keep (and will cause each of its Subsidiaries to keep) proper books of record
and account in which full, true and correct entries shall be made of all
material financial matters and transactions in relation to its business and
activities; and will permit representatives of any Bank at such Bank's expense
to visit and inspect any of its properties (subject to the terms of the
applicable leases), including without limitation the Real Property Assets, to
examine and make abstracts from any of its books and records and to discuss its
affairs, finances and accounts with its officers, employees and independent
public accountants, all at such reasonable times and as often as may reasonably
be desired.
SECTION 5.7. Existence. Borrower shall do or cause to be done, all things
reasonably necessary to preserve and keep in full force and effect its existence
and its tradenames, licenses, permits, certificates, authorizations,
qualifications, accreditations, easements, rights of way and other rights,
consents and approvals the nonexistence of which is likely to have a Material
Adverse Effect.
SECTION 5.8. Certain Requirements for the Borrowing Base Properties. At
all times (based upon the average occupancy level for the prior twelve month
period) (i) no single tenant shall account for more than 5% of the aggregate
base rents from the Borrowing Base Properties and (ii) no single Separate Parcel
shall account for more than 15% of the aggregate base rents from the Borrowing
Base Properties, taken as a whole. Notwithstanding the foregoing, (a) the
government of the United States of America and its agencies (including, without
limitation, the General Services Administration) shall be excluded from the
restriction set forth in the first sentence of this Section 5.8 and (b) single
tenants that hold Investment Grade Ratings and are approved by the Agent, in its
sole discretion, may account for up to 10% of the aggregate base rents from the
Borrowing Base Properties.
SECTION 5.9. Financial Covenants.
(a) Total Liabilities. Total Liabilities will at no time exceed fifty
percent (50%) of the Combined Gross Asset Value, plus the sum of Cash and Cash
Equivalents held by the Borrower or any Consolidated Subsidiary plus accounts
receivable of the Borrower or any Consolidated Subsidiary,
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less Intangible Assets (as defined in the definition of Consolidated Tangible
Net Worth) and deferred rents (the percentage calculated in accordance with this
Section 5.9(a) is referred to herein as the "Leverage Ratio").
(b) Dividends. Neither the Borrower nor any Consolidated Subsidiary will
declare any dividends in excess of 95% of its Funds From Operations, except that
Borrower may declare dividends in excess thereof (i) to maintain its status as a
real estate investment trust under the Code or (ii) to distribute 100% of its
taxable income (computed in accordance with the Code).
(c) Limits on Negative Pledge. Neither the Borrower nor any Subsidiary
will agree to limits on Liens on Unsecured Assets of Borrower or such
Subsidiary, except as may otherwise be required pursuant to the terms of this
Agreement.
(d) Fixed Rate Indebtedness. All Non-Recourse Debt of the Borrower and
any Subsidiaries incurred after the date hereof shall be Fixed Rate
Indebtedness.
(e) Debt Maturity Dates. The stated maturity or termination dates of any
Debt of the Borrower or any Subsidiary shall not be prior to August 9, 1999 (or
if the Extension Option is exercised, August 8, 2000); except that Borrower and
its Subsidiaries may incur Debt with earlier maturity or termination dates
provided that the aggregate outstanding amount of such Debt at any one time
shall not exceed five percent (5%) of Combined Gross Asset Value.
(f) Limitation on Secured Debt. Secured Debt of the Borrower shall at no
time exceed thirty-five percent (35%) of Combined Gross Asset Value.
(g) Limitation on Unimproved Land Investment. Unimproved Land Value of
the Borrower, its Consolidated Subsidiaries, together with the Borrower's pro
rata share with respect to Minority Holdings and Joint Ventures, shall at no
time exceed five percent (5%) of Combined Gross Asset Value.
(h) Minimum Consolidated Tangible Net Worth. Consolidated Tangible Net
Worth of the Borrower and its Consolidated Subsidiaries shall at no time be less
than $325,000,000, which amount shall be increased by an amount equal to ninety
percent (90%) of the net proceeds of any public or private sale by the Borrower
of common or preferred stock.
(i) Limitation on Construction Asset Costs. Construction Asset Costs of
the Borrower and its Subsidiaries shall at no time exceed five percent (5%) of
Combined Gross Asset Value.
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(j) Limitation on Joint Ventures. The aggregate Gross Asset Value of
Real Property Assets held in Joint Ventures shall at no time exceed thirty-five
percent (35%) of Combined Gross Asset Value.
(k) Fixed Charge Coverage. The ratio of Net Operating Cash Flow of the
Borrower to Fixed Charges (for any period of four consecutive fiscal quarters),
as of the last day of any quarter, shall be equal to or greater than 2.00:1.
(l) Borrowing Base Properties Minimum Debt Service Coverage. As of the
last day of each calendar quarter, the ratio of Borrowing Base Net Operating
Cash Flow to Pro-Forma Debt Service shall be equal to or greater than 2:1.
(m) Borrowing Base Properties Value Unsecured Debt Ratio. The ratio of
Borrowing Base Properties Value to Unsecured Senior Debt shall at no time be
less than 2:1.
SECTION 5.10. Restriction on Fundamental Changes. (a) The Borrower shall
not enter into any merger or consolidation, unless the Borrower is the surviving
entity, or liquidate, wind-up or dissolve (or suffer any liquidation or
dissolution), discontinue its business or convey, lease, sell, transfer or
otherwise dispose of, in one transaction or series of transactions, all or any
substantial part of its business or property, whether now or hereafter acquired.
Subject to other provisions of this Agreement, nothing in this Section 5.10
shall be deemed to prohibit (i) the leasing of portions of the Real Property
Assets or an entire Real Property Asset in the ordinary course of business for
occupancy by the tenants thereunder or (ii) the sale of such Real Property
Assets in the ordinary course of Borrower's business or (iii) the sale of
additional equity interests in the Borrower pursuant to a public or privately
placed equity offering of common or preferred stock, or (iv) subject to the
terms and conditions of Article IX, the AMB Consolidation Transactions,
including, without limitation, the IPO.
(b) Except as provided pursuant to Article IX hereof, the Borrower shall
not amend its articles of incorporation, by-laws, or other organizational
documents without the Agent's consent, which shall not be unreasonably withheld
or delayed.
(c) During the Term and prior to the Merger, the Borrower shall continue
to own no less than fifty-one percent (51%) of the common and preferred stock of
each Guarantor and shall maintain voting control of each Guarantor.
SECTION 5.11. Liens; Release of Liens. Neither Borrower nor any of its
Subsidiaries shall at any time during the Term directly or indirectly create,
incur, assume or
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permit to exist any Lien for borrowed monies or any other Lien (except for
Permitted Liens) unless the same is being contested in good faith or the same is
discharged, bonded off or paid within thirty (30) days of filing of such Lien,
on or with respect to any Borrowing Base Property. Notwithstanding the
foregoing, the Borrower may obtain a release from the terms of this Agreement of
any Borrowing Base Property provided that such Borrower has complied with
Section 2.9(a) and prior to or simultaneously with such release (i) such
Borrower shall pay to the Agent any amounts due pursuant to Section 2.9(a), and
(ii) Borrower delivers to the Agent a certificate from its chief financial
officer or chief accounting officer certifying that at the time of the release
all of the covenants contained in Sections 5.8 through 5.12, 5.19 through 5.20
are and after giving effect to the transaction shall continue to be true and
accurate in all respects. In the event that Borrower notifies the Agent that a
Separate Parcel that originally formed a part of a Borrowing Base Property be
released from the terms of this Agreement and Borrower otherwise complies with
the provisions hereof with respect thereto, the value of such Separate Parcel
(and the remaining portion of the Borrowing Base Property) will be determined by
Agent at the time of the release in its sole discretion.
SECTION 5.12. Sale of Borrowing Base Properties. Prior to the sale or
transfer of any Borrowing Base Property, the Borrower shall (i) deliver prior
written notice to the Agent, (ii) deliver to the Agent a certificate from its
chief financial officer or chief accounting officer certifying that at the time
of such sale or other disposal (based on pro-forma calculations for the previous
period assuming that such Borrowing Base Property was not a Borrowing Base
Property for the relevant period) all of the covenants contained in Sections 5.8
through 5.12, 5.19 through 5.21 are and after giving effect to the transaction
shall continue to be true and accurate in all respects, and (iii) pay to the
Agent an amount equal to that required pursuant to Section 2.9(a). In the event
that Borrower notifies the Agent that a Separate Parcel that originally formed a
part of a Borrowing Base Property is to be sold or transferred, the value of the
remaining portion of the Borrowing Base Property will be determined by Agent at
the time of sale or transfer in its sole discretion.
SECTION 5.13. Changes in Business. The Borrower shall not enter into any
business which is substantially different from that conducted by the Borrower on
the Closing Date after giving effect to the transactions contemplated by the
Loan Documents.
SECTION 5.14. Fiscal Year; Fiscal Quarter. The Borrower shall not change
its fiscal year or any of its fiscal
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quarters, without Agent's prior written consent, which consent shall not be
unreasonably withheld or delayed.
SECTION 5.15. Intentionally Omitted.
SECTION 5.16. Margin Stock. None of the proceeds of the Loan will be used
by Borrower, directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of buying or carrying any Margin Stock.
SECTION 5.17. Annual Appraisal. With respect to each calendar year,
Borrower shall obtain an Annual Appraisal of each Real Property Asset which is
to be valued on such Valuation Date (i.e., all Real Property Assets acquired
more than twelve months prior to such Valuation Date) on or before the Valuation
Date for such year.
SECTION 5.18. Initial Valuation Date. Borrower shall notify Agent of any
change in the Valuation Date.
SECTION 5.19. Restrictions on Recourse Debt. Until such time as Borrower
shall receive at least one (1) Investment Grade Rating, from either S&P or
Xxxxx'x, neither Borrower nor any Consolidated Subsidiary shall create, incur or
guaranty any Recourse Debt unless such Recourse Debt is Unsecured Debt which has
an Investment Grade Rating. Notwithstanding the foregoing, if Borrower receives
a rating that is not Investment Grade from either S&P or Xxxxx'x, until such
time as Borrower has received an Investment Grade Rating from each of S&P and
Xxxxx'x, neither Borrower nor any Consolidated Subsidiary shall create, incur or
guaranty any Recourse Debt unless such Recourse Debt is Unsecured Debt which has
an Investment Grade Rating.
SECTION 5.20. Covenant Restrictions. No Debt of Borrower or any
Consolidated Subsidiary incurred after the date hereof shall contain any
covenant or restriction which is more restrictive than any covenant or
restriction contained in this Agreement or any other Loan Documents.
ARTICLE VI
DEFAULTS
SECTION 6.1. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to (i) pay when due any principal on any
Loan, or (ii) pay when due any interest on any Loan or any fees or any other
amount payable hereunder
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and such failure shall continue for three (3) Domestic Business Days;
(b) the Borrower shall fail to observe or perform any covenant contained
in (i) Section 5.3, Sections 5.8 to 5.16 inclusive, Section 5.19 and Section
5.20 or (ii) Section 5.17 or 5.18 and such failure continues for five (5)
Domestic Business Days;
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a) or
(b) above) for 30 days after written notice thereof has been given to the
Borrower by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by the
Borrower in this Agreement or in any certificate, financial statement or other
document delivered pursuant to this Agreement shall prove to have been incorrect
in any material respect when made (or deemed made);
(e) The Borrower or any Consolidated Subsidiary shall default in the
payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) of any amount owing in respect of any Debt
(other than the Obligations) and such default shall continue beyond the giving
of any required notice and the expiration of any applicable grace period; or the
Borrower shall default in the performance or observance of any material
obligation or material conditions with respect to any such Debt or any other
event shall occur or condition exist beyond the giving of any required notice
and the expiration of any applicable grace period, if the effect of such
default, event or condition is to accelerate the maturity of any such
indebtedness or to permit (without any further requirement of notice or lapse of
time) the holder or holders thereof, or any trustee or agent for such holders,
to accelerate the maturity of any such indebtedness, or any such indebtedness
shall become or be declared to be due and payable prior to its stated maturity
other than as a result of a regularly scheduled payment.
(f) the Borrower shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general
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assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due;
(g) an involuntary case or other proceeding shall be commenced against
the Borrower seeking liquidation, reorganization or other relief with respect to
it or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for relief shall
be entered against the Borrower under the federal bankruptcy laws as now or
hereafter in effect;
(h) one or more judgments or decrees in an aggregate amount of Five
Million Dollars ($5,000,000) or more shall be entered by a court or courts of
competent jurisdiction against the Borrower or its Consolidated Subsidiaries
(other than any judgment as to which, and only to the extent, a reputable
insurance company has acknowledged coverage of such claim in writing or has
acknowledged in writing its willingness to defend any such claim under a
reservation of rights) and (i) any such judgments or decrees shall not be
stayed, discharged, paid, bonded or vacated within twenty (20) days or (ii)
enforcement proceedings shall be commenced by any creditor on any such judgments
or decrees;
(i) (i) a judgment or decree with respect to any Environmental Claim
shall have been entered against the Borrower or any Environmental Affiliate or
any Real Property Asset by a court of competent jurisdiction, (ii) any release,
emission, discharge or disposal of any Hazardous Substances shall have occurred,
and such event is reasonably likely to form the basis of an Environmental Claim
by a government agency with jurisdiction against the Borrower or any
Environmental Affiliate or any Real Property Asset thereof, or (iii) the
Borrower or the Environmental Affiliates shall have failed to obtain any
Environmental Approval necessary for the ownership, or operation of its
business, property or assets or any such Environmental Approval shall be
revoked, terminated, or otherwise cease to be in full force and effect, in each
case, if the existence of such condition has had or is reasonably likely to have
a Material Adverse Effect;
(j) the Borrower shall cease to qualify as a real estate investment
trust under the Code;
(k) the Borrower shall cease to be managed by either the Advisor or the
New Borrower, as the case may be, or an Affiliate of either. As used in this
Section 6.1(k), the term 'Affiliate' shall mean any Person that controls, is
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controlled by, or is under common control with the Advisor or the New Borrower,
as the case may be;
(l) prior to the IPO, the Borrower shall cease to be a REOC or a VCOC;
(m) there shall be a change in the majority of the Board of Directors of
Borrower during any twelve month period; provided, however, that changes in the
majority of the Board of Directors of Borrower which are made in connection with
the AMB Consolidation Transactions, and which could not reasonably be expected
to materially adversely affect the rights of the Agent and the Banks hereunder,
shall be permitted;
(n) any Person (including affiliates of such Person) shall acquire more
than twenty percent (20%) of the common shares of the Borrower;
(o) if, any Termination Event with respect to a Plan shall occur as a
result of which Termination Event or Events any member of the ERISA Group has
incurred or may incur any liability to the PBGC or any other Person and the sum
(determined as of the date of occurrence of such Termination Event) of the
insufficiency of such Plan and the insufficiency of any and all other Plans with
respect to which such a Termination Event shall occur and be continuing (or, in
the case of a Multi-Employer Plan with respect to which a Termination Event
described in clause (ii) of the definition of Termination Event shall occur and
be continuing, the liability of the Borrower and the ERISA Affiliates related
thereto) is equal to or greater than $1,000,000 and in the case of a Termination
Event with respect to a Plan of any ERISA Affiliate other than any Borrower, the
liability therefor could reasonably be asserted against any member of the ERISA
Group;
(p) if any member of the ERISA Group shall commit a failure described in
Section 402(f)(1) of ERISA or Section 412(n)(1) of the Code and the amount of
the lien determined under Section 402(f)(3) of ERISA or Section 412(n)(3) of the
Code that could reasonably be expected to be imposed on any member of the ERISA
Group or their assets in respect of such failure shall be equal to or greater
than $1,000,000; or
(q) if the Borrower or the New Borrower shall breach the provisions of
Article IX, whether by failure to satisfy the conditions set forth in Section
9.2, or otherwise.
SECTION 6.2. Rights and Remedies. (a) Upon the occurrence of any Event of
Default described in Sections 6.1(f) or (g), the unpaid principal amount of, and
any and all accrued interest on, the Loans and any and all accrued
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fees and other Obligations hereunder shall automatically become immediately due
and payable, with all additional interest from time to time accrued thereon and
without presentation, demand, or protest or other requirements of any kind
(including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and notice of
acceleration), all of which are hereby expressly waived by the Borrower; and
upon the occurrence and during the continuance of any other Event of Default,
the Agent may and at the direction of the Required Banks shall (until the Agent
receives such written direction, it may, but shall not be obligated to, take
such action, or refrain from taking such action with respect to such Event of
Default as it shall deem advisable in its sole discretion), by written notice to
the Borrower, terminate the Commitments, and may, and at the direction of the
Required Banks shall (until the Agent receives such written direction, it may,
but shall not be obligated to, take such action, or refrain from taking such
action with respect to such Event of Default as it shall deem advisable in its
sole discretion), in addition to the exercise of all rights and remedies
permitted Agent and the Banks at law or equity, declare the unpaid principal
amount of and any and all accrued and unpaid interest on the Loans and any and
all accrued fees and other Obligations hereunder to be, and the same shall
thereupon be, immediately due and payable with all additional interest from time
to time accrued thereon and without presentation, demand, or protest or other
requirements of any kind other than as provided in the Loan Documents
(including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and notice of
acceleration), all of which are hereby expressly waived by the Borrower to the
extent permitted by law.
(b) Notwithstanding anything to the contrary contained in this Agreement
or in any other Loan Document, the Agent and the Banks each agree that any
exercise or enforcement of the rights and remedies granted the Agent or the
Banks under this Agreement or at law or in equity with respect to this Agreement
or any other Loan Documents shall be commenced and maintained by the Agent on
behalf of the Banks.
SECTION 6.3. Notice of Default. The Agent shall give notice to the
Borrower under Section 6.1(c) promptly upon being requested to do so by any Bank
and shall thereupon notify all the Banks thereof.
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ARTICLE VII
THE AGENT
SECTION 7.1. Appointment and Authorization. Each Bank irrevocably appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto. Only Agent (and not one or more of
the Banks) shall have the authority to deal directly with the Borrower under
this Agreement and each Bank acknowledges that all notices, demands or requests
from such Bank to Borrower must be forwarded to Agent for delivery to the
Borrower. Each Bank acknowledges that Borrower has no obligation to act or
refrain from acting on instructions or demands of one or more Banks absent
written instructions from Agent in accordance with its rights and authority
hereunder.
SECTION 7.2. Agent and Affiliates. Xxxxxx shall have the same rights and
powers under this Agreement as any other Bank and may exercise or refrain from
exercising the same as though it were not the Agent, and Xxxxxx and its
affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or affiliate of the
Borrower as if it were not the Agent hereunder, and the term "Bank" and "Banks"
shall include Xxxxxx in its individual capacity.
SECTION 7.3. Action by Agent. The obligations of the Agent hereunder are
only those expressly set forth herein. Without limiting the generality of the
foregoing, the Agent shall not be required to take any action with respect to
any Default, except as expressly provided in Article VI.
SECTION 7.4. Consultation with Experts. The Agent may consult with legal
counsel (who may be counsel for the Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
SECTION 7.5. Liability of Agent. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into or verify (i) any statement, warranty
or representation made in connection
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with this Agreement or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of the Borrower; (iii) the
satisfaction of any condition specified in Article III, except receipt of items
required to be delivered to the Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the other Loan Documents or any other instrument
or writing furnished in connection herewith. The Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.
SECTION 7.6. Indemnification. Each Bank shall, ratably in accordance with
its Commitment, indemnify the Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Borrower as may be required under this Agreement) against any cost, expense
(including counsel fees and disbursements), claim, demand, action, loss or
liability (except such as result from such indemnitees' gross negligence or
willful misconduct) that such indemnitees may suffer or incur in connection with
this Agreement, the other Loan Documents or any action taken or omitted by such
indemnitees hereunder.
SECTION 7.7. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.8. Successor Agent. The Agent may resign at any time by giving
notice thereof to the Banks and the Borrower. Upon any such resignation, the
Required Banks shall have the right to appoint a successor Agent with the
consent of Borrower which shall not be unreasonably withheld or delayed provided
that any such successor agent is then a Bank hereunder. Furthermore, in the
event that at any time Xxxxxx is the Agent and Xxxxxx assigns its entire
interest as a Bank hereunder to an Assignee as permitted by Section 10.6(c)
hereof, which Assignee is not an affiliate of Xxxxxx, then Xxxxxx shall offer
to resign as Agent, which resignation shall only become effective if the
Required Banks accept such resignation in writing within twenty (20) Domestic
Business Days after it has been tendered by Xxxxxx. If the Required Banks do not
timely accept such resignation, then the resignation shall be deemed to be
withdrawn and Xxxxxx shall continue as Agent pursuant to the terms hereof.
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In addition, upon the affirmative vote of the Required Banks that Agent has
acted (or failed to act) with gross negligence or committed an act of willful
misconduct in its capacity as agent for the Banks hereunder, the Agent shall
immediately tender its resignation. If no successor Agent shall have been so
appointed by the Required Banks, and shall have accepted such appointment,
within 30 days after the retiring Agent gives notice of resignation, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent, which
shall be a commercial bank organized or licensed under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $50,000,000. Upon the acceptance of its appointment as the
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period for any Euro-Dollar
Borrowing:
(a) the Agent is advised by the Reference Bank that deposits in dollars
(in the applicable amounts) are not being offered to the Reference Bank in the
relevant market for such Interest Period, or
(b) Banks having 50% or more of the aggregate amount of the Commitments
advise the Agent that the Adjusted London Interbank Offered Rate as determined
by the Agent will not adequately and fairly reflect the cost to such Banks of
funding their Euro-Dollar Loans for such Interest Period, the Agent shall
forthwith give notice thereof to the Borrower and the Banks, whereupon until the
Agent notifies the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligations of the Banks to make Euro-Dollar
Loans shall be suspended. Unless the Borrower notifies the Agent at least two
Domestic Business Days before the date of any Euro-Dollar Borrowing for which a
Notice of Borrowing has previously been given that it elects not to borrow on
such date, such Borrowing shall instead be made as a Base Rate Borrowing.
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SECTION 8.2. Illegality. If, on or after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, 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 compliance
by any Bank (or its Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Bank (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans and
such Bank shall so notify the Agent, the Agent shall forthwith give notice
thereof to the other Banks and the Borrower, whereupon until such Bank notifies
the Borrower and the Agent that the circumstances giving rise to such suspension
no longer exist, the obligation of such Bank to make Euro-Dollar Loans shall be
suspended. Before giving any notice to the Agent pursuant to this Section, such
Bank shall designate a different Euro-Dollar Lending Office if such designation
will avoid the need for giving such notice and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. If such Bank shall determine
that it may not lawfully continue to maintain and fund any of its outstanding
Euro-Dollar Loans to maturity and shall so specify in such notice, the Borrower
shall immediately prepay in full the then outstanding principal amount of each
such Euro-Dollar Loan, together with accrued interest thereon. Concurrently with
prepaying each such Euro-Dollar Loan, the Borrower shall borrow a Base Rate Loan
in an equal principal amount from such Bank (on which interest and principal
shall be payable contemporaneously with the related Euro-Dollar Loans of the
other Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.3. Increased Cost and Reduced Return.
(a) If, on or after the date hereof, the adoption of any applicable law,
rule or regulation, or any change in any applicable law, rule or regulation, 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 compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall impose, modify or
deem applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System (but excluding
with respect to any Euro-Dollar Loan any such requirement reflected in an
applicable Euro-Dollar Reserve Percentage)), special deposit, insurance
assessment or similar requirement against assets of, deposits with or for
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the account of, or credit extended by, any Bank (or its Applicable Lending
Office) or shall impose on any Bank (or its Applicable Lending Office) or on the
London interbank market any other condition affecting its Euro-Dollar Loans, its
Note, or its obligation to make Euro-Dollar Loans, and the result of any of the
foregoing is to increase the cost to such Bank (or its Applicable Lending
Office) of making or maintaining any Euro-Dollar Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Applicable Lending
Office) under this Agreement or under its Note with respect thereto, by an
amount deemed by such Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Agent), the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction; provided, however, that such amounts shall be no greater than
that which such Bank is generally charging other borrowers similarly situated to
Borrower.
(b) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, 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 any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 15 days after demand
by such Bank (with a copy to the Agent), the Borrower shall pay to such Bank
such additional amount or amounts as will compensate such Bank (or its Parent)
for such reduction; provided, however, that such amount shall be no greater than
that which such Bank is generally charging other borrowers similarly situated to
Borrower.
(c) Each Bank will promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it
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hereunder shall be conclusive in the absence of manifest error. In determining
such amount, such Bank may use any reasonable averaging and attribution methods.
(d) Notwithstanding anything to the contrary contained herein, no Bank
shall demand compensation for any increased cost, reduction or capital referred
to above in Section 8.3(a) or (b) if it shall not at the time be the general
policy and practice of such Bank to demand such compensation in similar
circumstances from similarly situated borrowers.
SECTION 8.4. Taxes.
(a) Any and all payments by the Borrower to or for the account of any
Bank or the Agent hereunder or under any other Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Bank and the
Agent, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Bank or the Agent (as the case may be)
is organized or any political subdivision thereof and, in the case of each Bank,
taxes imposed on its income, and franchise or similar taxes imposed on it, by
the jurisdiction of such Bank's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note to any Bank or the
Agent, (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 8.4) such Bank or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Agent, at its address referred to in Section 10.1, the original
or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any present or future stamp
or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
from the execution or delivery of, or otherwise with respect to, this Agreement
or any Note (hereinafter referred to as "Other Taxes").
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(c) The Borrower agrees to indemnify each Bank and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.4) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 15 days from the date
such Bank or the Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Borrower (but
only so long as such Bank remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from "Taxes" as defined in Section 8.4(a).
(e) For any period with respect to which a Bank has failed to provide
the Borrower with the appropriate form pursuant to Section 8.4(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which a form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section 8.4(a) with respect to
Taxes imposed by the United States; provided, however, that should a Bank, which
is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Bank pursuant to this Section 8.4, then such Bank will change the
jurisdiction of its Applicable Lending Office so as to eliminate or reduce any
such additional payment which may thereafter accrue if
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such change, in the judgment of such Bank, is not otherwise disadvantageous to
such Bank.
(g) If circumstances subsequently change so that it is no longer
unlawful for an affected Bank to make or maintain Euro-Dollar Loans as
contemplated hereunder, such Bank will, as soon as reasonably practicable after
such Bank becomes aware of such change in circumstances, notify the Borrower and
the Agent and upon receipt of such notice, the obligations of such Bank to make
or continue Euro-Dollar Loans or to convert Base Rate Loans into Euro-Dollar
Loans shall be reinstated.
SECTION 8.5. Base Rate Loans Substituted for Affected Euro-Dollar Loans.
If (i) the obligation of any Bank to make Euro-Dollar Loans has been suspended
pursuant to Section 8.2 or (ii) any Bank has demanded compensation under Section
8.3 or 8.4 with respect to its Euro-Dollar Loans and the Borrower shall, by at
least five Euro-Dollar Business Days' prior notice to such Bank through the
Agent, have elected that the provisions of this Section shall apply to such
Bank, then, unless and until such Bank notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer exist:
(a) all Loans which would otherwise be made by such Bank as Euro-Dollar
Loans shall be made instead as Base Rate Loans (on which interest and principal
shall be payable contemporaneously with the related Euro-Dollar Loans of the
other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all payments of
principal which would otherwise be applied to repay such Euro-Dollar Loans shall
be applied to repay its Base Rate Loans instead.
ARTICLE IX
THE AMB CONSOLIDATION TRANSACTIONS
SECTION 9.1. The AMB Consolidation Transactions. The Advisor has informed
the Banks that it contemplates the consolidation of the ownership of various
entities, including, without limitation, the Borrower, AIF and RIF, through one
or more merger, transfer and/or contribution transactions (collectively, the
"Merger"). Pursuant to the AMB Consolidation Transactions, future business of
the combined companies will be conducted by an entity which will elect to be
taxed as a real estate investment trust ("REIT") or an entity such as a
partnership which is controlled at least fifty percent (50%) by a REIT and such
entity will receive the assets and liabilities of Borrower, AIF and RIF (among
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others) and will continue to conduct the operations of the combined businesses
(such entity being referred to herein as the "New Borrower"). The Advisor has
further informed the Banks that it contemplates an initial public offering (the
"IPO") of the equity interests in the New Borrower (or the REIT, if the New
Borrower is a partnership) concurrently with or subsequent to the other AMB
Consolidation Transactions. The Advisor, the Borrower, AIF and RIF have
requested that the Banks consent to the Merger and to the other AMB
Consolidation Transactions.
SECTION 9.2. Consent of Banks; Assumption by New Borrower. The Banks
hereby consent to the Merger and the other AMB Consolidation Transactions and to
amendments, supplements, restatements and/or other modifications to the
organizational documents of the Borrower which may be made in connection
therewith (the "Consent"), upon the following terms and conditions:
(a) Conditions to Consent. The effectiveness of the Consent shall be
subject to the satisfaction of each of the following conditions:
(i) Information. The Agent shall have received, on behalf of the
Banks, all non-confidential agreements and instruments, and all financial
materials and public filings, reasonably required by the Agent to assess the
terms of the AMB Consolidation Transactions and the assets and liabilities of
the New Borrower (collectively, the "Information").
(ii) Consent of Required Banks. Banks constituting Required Banks
shall have informed the Agent that they have received and reviewed the
Information and have affirmed and ratified the consent of the Banks to the
Merger and the other AMB Consolidation Transactions, such affirmation and
ratification to be granted or withheld in the sole and absolute discretion of
the Required Banks.
(iii) Officer's Certificate. The Agent shall have received on behalf
of the Banks, a certificate of the chief executive officer, chief financial
officer or chief accounting officer of the New Borrower, representing and
certifying (A) that the officer signatory thereto has reviewed the terms of the
Loan Documents, and has made, or caused to be made under his/her supervision, a
review in reasonable detail of the transactions and Consolidated and
consolidating pro forma financial condition of the New Borrower and its
Subsidiaries, during the period covered by such reports, that such review has
not disclosed the existence during or at the end of such period, and that such
officer does not have knowledge of the existence as at the date of such
certificate, of any condition or event which
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constitutes an Event of Default or Default or mandatory prepayment event; (B)
pro forma calculations evidencing compliance with each of the financial
covenants set forth in Section 5.9 hereof for the New Borrower, and (C) except
as may be disclosed in writing to the Banks and consented to by the Required
Banks with respect to RIF or AIF, that each of AIF, RIF and AMB Current Income
Fund, Inc. is conducting all of its business and operations through the New
Borrower and its Subsidiaries and that each of AMB Current Income Fund, Inc.,
AIF or RIF is no longer conducting any business or operations and has no
remaining assets or Subsidiaries or interests in Joint Ventures or Minority
Holdings, all such business, operations and holdings having been assigned,
contributed, assumed or otherwise transferred to the New Borrower.
(iv) New Borrower Assumption; Documents. In the event that,
following the consummation of the Merger, the New Borrower is intended to be
other than AMB Current Income Fund, Inc., then simultaneously with the
consummation of the Merger, (A) the New Borrower shall assume the rights,
duties, liabilities and obligations of the Borrower hereunder (the "New Borrower
Assumption") and (B) the general partner (if any) of the New Borrower shall
guaranty the obligations of the New Borrower hereunder and (C) any Consolidated
Subsidiaries of the New Borrower which (i) will own Borrowing Base Properties
subsequent to the AMB Consolidation Transactions and (ii) are distinct corporate
or partnership entities (exclusive of mere title holding entities, such as land
trusts), shall guaranty the obligations of the New Borrower pursuant to guaranty
agreements in form and substance satisfactory to the Agent (collectively, the
"Subsidiary Guaranties"). It shall be a condition of any New Borrower Assumption
that the Agent shall have received on or before the date of the Agent's
acceptance of the New Borrower Assumption (the "Assumption Date") all of the
following, duly executed and delivered by the parties thereto:
(1) the Assumption Agreement;
(2) the New Borrower Notes;
(3) if applicable, the General Partner Guaranty;
(4) if applicable, Subsidiary Guaranties;
(5) all other agreements, documents, instruments, legal
opinions, and certificates described in the List of Assumption Documents
attached hereto as Exhibit F and made a part hereof, each duly executed and in
recordable form, where appropriate, and in form and substance satisfactory to
the Agent; and
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(6) such additional documentation as the Agent may
reasonably request.
(v) No Legal Impediments. No law, regulation, order, judgment or
decree of any Governmental Authority shall, and the Agent shall not have
received any notice that litigation is pending or threatened which is likely to
(i) enjoin, prohibit or restrain the making of the Loans on or after the
Assumption Date or (ii) impose or result in the imposition of a Material Adverse
Effect.
(vi) No Default. No Default or Event of Default shall have
occurred and be continuing or would result from the New Borrower Assumption or
the making of the Loans.
(vii) Representations and Warranties. All of the representations
and warranties contained in this Agreement and in any of the other Loan
Documents shall be true and correct in all material respects on and as of the
Assumption Date as if made by the New Borrower on the Assumption Date.
(viii) Fees and Expenses Paid. There shall have been paid to the
Agent, for the accounts of the Agent and the other Banks, as applicable, all
fees due and payable on or before the Assumption Date and all expenses due and
payable on or before the Assumption Date, including, without limitation,
reasonable attorneys' fees and expenses, and other costs and expenses incurred
in connection with the New Borrower Assumption, to the extent payable by the
Borrower pursuant to Section 10.3 hereof.
Upon the satisfaction of each of the above conditions, and further upon
the receipt by each Bank of its New Borrower Note, if applicable, such Bank
shall xxxx its original Note cancelled and return such Note to the Agent for
return to the Borrower.
SECTION 9.3. Effect of Merger and New Borrower Assumption.
(a) From and after the Assumption Date, each of the references in this
Agreement (A) to the "Borrower", "AIF" or "RIF" shall be deemed to be references
to the New Borrower; (B) to the "Notes" shall be deemed to be references to the
New Borrower Notes; and (C) to the "Guaranty" or the "Guarantor" shall be
deleted and the Guaranty will be released.
(b) From and after the Assumption Date, Section 6.1(j) hereof shall be
amended by the addition of the following language, "or, if Borrower is a
partnership, Borrowe-
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r's general partner shall cease to qualify as a real estate investment trust."
(c) From and after the effective date of the Merger, to the extent that
any New Acquisition or Real Property Asset, which is not a Borrowing Base
Property as of such effective date, is owned by any Consolidated Subsidiary
which is a distinct corporate or partnership entity (exclusive of mere title
holding entities, such as land trusts), then, in addition to the conditions set
forth in Section 3.3 and 3.4 hereof, as applicable, such Consolidated Subsidiary
shall execute a Subsidiary Guaranty as a condition to the inclusion of such
asset as a Borrowing Base Property hereunder; provided, however that the Banks
shall not require the delivery of a legal opinion with respect to any such
Subsidiary Guaranty.
SECTION 9.4. Effect of IPO.
(a) Definitional Changes. From and after the consummation of the IPO,
the definition of "Gross Asset Value" contained in Section 1.1 hereof shall be
deleted in its entirety and replaced with the following:
"Gross Asset Value" shall mean (i) with respect to a Real Property
Asset that was acquired, directly or indirectly, within the twelve (12)
months prior to the date of determination, (A) prior to the first full
quarter following such acquisition, the Acquisition Price of such Real
Property Asset plus any Capital Expenditures actually incurred by the
Borrower or its Subsidiary in connection with such Real Property Asset
(which, for the purpose of this definition shall include any expenditures
that would have been considered Capital Expenditures except that they were
made with respect to the acquisition by the Borrower or its Consolidated
Subsidiaries of any interest in a Real Property Asset within twelve months
after the date such interest in asset was acquired) and (B) from and after
the first full quarter following such acquisition, the lesser of (x) the
amount in clause (i)(A) above and (y) the Net Operating Cash Flow applicable
to such Real Property Asset (provided that such Net Operating Cash Flow shall
be calculated on an annualized basis based upon the actual amount of Net
Operating Cash Flow for the period of Borrower's ownership of such Real
Property Asset), in each case capitalized at an annual interest rate of 9.5%
if such Real Property Asset is primarily a retail use property and 9.25% if
such Real Property Asset is primarily an industrial use property; and (ii)
with respect to a Real Property Asset that was acquired, directly or
indirectly by the Borrower more than twelve (12) months prior to the date of
determina-
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tion, the Net Operating Cash Flow applicable to such Real Property Asset
capitalized at an annual interest rate of 9.5% if such Real Property Asset is
primarily a retail use property and 9.25% if such Real Property Asset is
primarily an industrial use property."
(b) Deletion of Appraisal and Valuation Requirements. From and after the
consummation of the IPO, the Borrower shall not be required to obtain Annual
Appraisals of the Borrowing Base Properties and the following changes shall be
deemed to have been made to this Agreement:
(i) The definition of "Annual Appraisal" contained in Section 1.1
hereof shall be deleted in its entirety.
(ii) The definition of "Appraised Value" contained in Section 1.1
hereof shall be deleted in its entirety.
(iii) The definition of "Valuation Date" contained in Section 1.1
hereof shall be deleted in its entirety.
(iv) Section 5.1(i) shall be deleted in its entirety.
(v) Section 5.17 shall be deleted in its entirety.
(vi) Section 5.18 shall be deleted in its entirety.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, facsimile,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Borrower or the Agent, at its address or facsimile number set
forth on the signature pages hereof, (y) in the case of any Bank, at its address
or facsimile number set forth in its Administrative Questionnaire or (z) in the
case of any party, such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the Agent and the Borrower. Each
such notice, request or other communication shall be effective (i) if given by
facsimile, when such facsimile is transmitted to the facsimile number specified
in this Section and the appropriate answerback is received, (ii) if given by
mail,
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72 hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means,
when delivered at the address specified in this Section; provided that notices
to the Agent under Article II or Article VIII shall not be effective until
received.
SECTION 10.2. No Waivers. No failure or delay by the Agent or any Bank or
Borrower in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 10.3. Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses of
the Agent, including, without limitation, appraisal fees, engineering fees, and
fees and disbursements of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for
the Agent, as well as fees and disbursements of internal counsel (except that in
connection with the preparation and negotiation of this Agreement, Agent's legal
fees (exclusive of disbursements) shall not exceed $50,000), in connection with
the preparation, syndications and administration of this Agreement, the Loan
Documents and the documents and instruments referred to therein, the New
Borrower Assumption and the documents and instruments executed and delivered in
connection therewith, and further modifications or syndications of the Facility
in connection therewith, the administration of the Loans, any waiver or consent
hereunder or any amendment or modification hereof or any Default or Event of
Default hereunder, and (ii) if an Event of Default occurs, all reasonable
out-of-pocket expenses incurred by the Agent and each Bank, including fees and
disbursements of counsel for the Agent and each of the Banks, in connection with
the enforcement of the Loan Documents and the instruments referred to therein
and such Event of Default and collection, bankruptcy, insolvency and other
enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party
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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 out of, or in any way
related to or by reason of, (i) any of the transactions contemplated by the Loan
Documents or the execution, delivery or performance of any Loan Document, (ii)
any violation by the Borrower or the Environmental Affiliates of any applicable
Environmental Law, (iii) any Environmental Claim arising out of the management,
use, control, ownership or operation of property or assets by the Borrower or
any of the Environmental Affiliates, including, without limitation, all on-site
and off-site activities involving Hazardous Substances, (iv) the breach of any
environmental representation or warranty set forth herein, (v) the grant to the
Agent and the Banks of any Lien in any property or assets of the Borrower or any
stock or other equity interest in the Borrower, and (vi) the exercise by the
Agent and the Banks of their rights and remedies (including, without limitation,
foreclosure) under any agreements creating any such Lien (but excluding, as to
any Indemnitee, any such losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements
incurred by reason of (i) the gross negligence or willful misconduct of such
Indemnitee as finally determined by a court of competent jurisdiction, (ii) the
breach of this Agreement by such Indemnitee, as finally determined by a court of
competent jurisdiction and (iii) any investigative, administrative or judicial
proceeding imposed or asserted against any Indemnitee by any bank regulatory
agency or by any equity holder of such Indemnitee). The Borrower's obligations
under this Section shall survive the termination of this Agreement and the
payment of the Obligations.
(c) The Borrower shall pay, and hold the Agent and each of the Banks
harmless from and against, any and all present and future U.S. stamp, recording,
transfer and other similar foreclosure related taxes with respect to the
foregoing matters and hold the Agent and each Bank harmless from and against any
and all liabilities with respect to or resulting from any delay or omission
(other than to the extent attributable to such Bank) to pay such taxes.
SECTION 10.4. Sharing of Set-Offs. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
any Event of Default, each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and apply any and all deposits (general or
special, time or demand, provisional or final)
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and any other indebtedness at any time held or owing by such Bank (including,
without limitation, by branches and agencies of such Bank wherever located) to
or for the credit or the account of the Borrower against and on account of the
Obligations of the Borrower then due and payable to such Bank under this
Agreement or under any of the other Loan Documents, including, without
limitation, all interests in Obligations purchased by such Bank. Each Bank
agrees that if it shall, by exercising any right of set-off or counterclaim or
otherwise, receive payment of a proportion of the aggregate amount of principal
and interest due with respect to any Note held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Note held by such other Bank, the
Bank receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Notes held by the Banks shall be shared by the
Banks pro rata; provided that nothing in this Section shall impair the right of
any Bank to exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of the
Borrower other than its indebtedness under the Notes. The Borrower agrees, to
the fullest extent it may effectively do so under applicable law, that any
holder of a participation in a Note, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of set-off or counterclaim and other
rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation. Notwithstanding anything to the contrary contained herein, any
Bank may, by separate agreement with the Borrower, waive its right to set off
contained herein or granted by law and any such written waiver shall be
effective against such Bank under this Section 10.4.
SECTION 10.5. Amendments and Waivers. Any provision of this Agreement or
the Notes or other Loan Documents may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower and the Required
Banks (and, if the rights or duties of the Agent are affected thereby, by the
Agent); provided that no such amendment or waiver shall, unless signed by all
the Banks, (i) increase or decrease the Commitment of any Bank (except for a
ratable decrease in the Commitments of all Banks) or subject any Bank to any
additional obligation, (ii) reduce the principal of or rate of interest on any
Loan or any fees hereunder, except as provided below, (iii) postpone the date
fixed for any payment of principal of or interest on any Loan or any fees
hereunder or for any reduction or termination of any Commitment, (iv) change the
percentage of the
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Commitments or of the aggregate unpaid principal amount of the Notes, or the
number of Banks, which shall be required for the Banks or any of them to take
any action under this Section or any other provision of this Agreement, (v)
release any Guarantor or the Guaranty, or (vi) modify the Guaranty.
SECTION 10.6. Successors and Assigns.
(a) 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 Borrower may not assign or otherwise transfer any of its rights
under this Agreement or the other Loan Documents without the prior written
consent of all Banks except as permitted by Section 5.10 hereof.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Agent, such Bank shall remain responsible for the performance
of its obligations hereunder, and the Borrower and the Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement. Any agreement pursuant to which any Bank
may grant such a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Borrower hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such participation agreement may provide that such Bank will not agree to
any modification, amendment or waiver of this Agreement described in clause (i),
(ii), (iii) or (iv) of Section 10.5 without the consent of the Participant. The
Borrower agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article VIII with
respect to its participating interest. An assignment or other transfer which is
not permitted by subsection (c) or (d) below shall be given effect for purposes
of this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement, the Notes and the other Loan
Documents, and such Assignee shall assume such rights and obligations, pursuant
to an Assignment and Assumption Agreement in substantially the form of Exhibit C
hereto executed by
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such Assignee and such transferor Bank, with (and subject to) the subscribed
consent of the Borrower and the Agent which consent shall not be unreasonably
withheld; provided that if an Assignee is an affiliate of such transferor Bank,
no such consent shall be required provided that the rating of such affiliate's
senior unsecured indebtedness shall be at least investment grade at such time
(although nothing contained herein shall limit the right of any Bank to assign
its interest herein as aforesaid to any successor by merger or consolidation);
provided further, until such time as an Event of Default has occurred and
subject to the provisions of subsection (d) of this Section 10.6 and any
reduction pursuant to Section 2.10(c) hereof, at all times during the Term,
Xxxxxx or an affiliate of Xxxxxx shall retain a minimum Commitment of
$10,000,000 unless (i) required by law, regulation, administrative decree or
court order to divest all or any part of such Commitment or (ii) a lesser amount
is consented to by Borrower; and provided further that, upon the occurrence and
during the continuation of an Event of Default, a Bank may assign its interest
herein to an affiliate, regardless of rating and furthermore that Borrower shall
have no right to consent to any Assignee. Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Agent and the Borrower
shall make appropriate arrangements so that, if required, a new Note is issued
to the Assignee. In connection with any such assignment, the transferor Bank
shall pay to the Agent an administrative fee for processing such assignment in
the amount of $2,500. If the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall deliver to the Borrower
and the Agent certification as to exemption from deduction or withholding of any
United States federal income taxes in accordance with Section 8.4.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder. Promptly
upon being notified in writing of such transfer, Agent shall notify Borrower
thereof.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater
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payment under Section 8.3 or 8.4 than such Bank would have been entitled to
receive with respect to the rights transferred, unless such transfer is made
with the Borrower's prior written consent or by reason of the provisions of
Section 8.2, 8.3 or 8.4 requiring such Bank to designate a different Applicable
Lending Office under certain circumstances or at a time when the circumstances
giving rise to such greater payment did not exist.
SECTION 10.7. Collateral. Each of the Banks repre- sents to the Agent and
each of the other Banks that it in good faith is not relying upon any "margin
stock" (as de- fined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 10.8. Governing Law; Submission to Jurisdiction. (a) THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(b) Any legal action or proceeding with respect to this Agreement or any
other Loan Document and any action for enforcement of any judgment in respect
thereof may be brought in the courts of the State of New York or of the United
States of America for the Southern District of New York, and, by execution and
delivery of this Agreement, the Borrower hereby accepts for itself and in
respect of its property, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and appellate courts from any thereof. The
Borrower irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the hand delivery, or
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Borrower at its address set forth below. The Borrower hereby irrevocably
waives, to the extent permitted by applicable law, any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Loan Document brought in the courts referred to above and hereby further
irrevocably waives, to the extent permitted by applicable law, and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. Nothing herein shall
affect the right of the Agent, any Bank or any holder of a Note to serve process
in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Borrower in any other jurisdiction.
Section 10.9. Marshalling; Recapture. Neither the Agent nor any Bank shall
be under any obligation to xxxxxxxx any assets in favor of the Borrower or any
other party or
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against or in payment of any or all of the Obligations. To the extent any Bank
receives any payment by or on behalf of the Borrower, which payment or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required to be repaid to the Borrower or its estate, trustee,
receiver, custodian or any other party under any bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of such payment
or repayment, the Obligation or part thereof which has been paid, reduced or
satisfied by the amount so repaid shall be reinstated by the amount so repaid
and shall be included within the liabilities of the Borrower to such Bank as of
the date such initial payment, reduction or satisfaction occurred.
SECTION 10.10. Counterparts; Integration; Effectiveness. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective upon receipt by the Agent of counterparts
hereof signed by each of the parties hereto (or, in the case of any party as to
which an executed counterpart shall not have been received, receipt by the Agent
in form satisfactory to it of telegraphic, telex or other written confirmation
from such party of execution of a counterpart hereof by such party).
SECTION 10.11. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENT AND
THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 10.12. Survival. All indemnities set forth herein shall survive
the execution and delivery of this Agreement and the other Loan Documents and
the making and repayment of the Loans hereunder.
SECTION 10.13. Domicile of Loans. Each Bank may transfer and carry its
Loans at, to or for the account of any domestic or foreign branch office,
subsidiary or affiliate of such Bank.
SECTION 10.14. Limitation of Liability. No claim may be made by the
Borrower or any other Person against the Agent or any Bank or the affiliates,
directors, officers, employees, attorneys or agent of any of them for any
consequential or punitive damages in respect of any claim for breach of contract
or any other theory of liability arising
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out of or related to the transactions contemplated by this Agreement or by the
other Loan Documents, or any act, omission or event occurring in connection
therewith; and the 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 10.15. Recourse. All obligations, covenants and agreements of
Borrower contained in or evidenced by this Agreement, the Notes and any Loan
Document shall be fully recourse to Borrower and each and every asset of
Borrower. Notwithstanding the foregoing, no recourse under or upon any
obligation, covenant, or agreement contained in this Agreement or the Note or
any Loan Document shall be had against the Advisor or any officer, director,
shareholder or employee of Borrower or Advisor (a "Non-Recourse Party") and no
such Non-Recourse Party shall be personally liable for payment of the Loans or
other amounts due in respect thereof (all such liability being expressly waived
and released by each Bank and the Agent).
SECTION 10.16. Confidentiality. Each Bank and the Agent agrees that it
shall maintain confidentiality with regard to nonpublic information concerning
the Borrower obtained from the Borrower pursuant to this Agreement, provided
that the Banks and the Agent shall not be precluded from making disclosure
regarding such information: (1) to the Banks' and Agent's counsel, accountants
and other professional advisors (who are, in each case, subject to this
confidentiality agreement), (ii) to officers, directors, employees, agents and
partners of each Bank, and the Agent who need to know such information (who are,
in each case, subject to this confidentiality agreement), (iii) in response to a
subpoena or order of a court or governmental agency, (iv) to any entity
participating or considering participating in any credit made under this
Agreement, provided, the Banks and Agent shall require that any such entity be
subject to this Section 10.16, however, Banks and Agent shall have no duty to
monitor any participating entity and shall have no liability in the event that
any participating entity violates this Section 10.16, or (v) as required by law,
GAAP or applicable regulation. In connection with enforcing its rights pursuant
to this Section 10.16, Borrower shall be entitled to the equitable remedies of
specific performance and injunctive relief against the Agent or any Bank which
shall breach the confidentiality provisions of this Section 10.16.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
AMB CURRENT INCOME FUND, INC.,
a Maryland corporation
By:_____________________________
Name:
Title:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
Commitments Banks
$25,000,000 XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By:_____________________________
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
c/o X.X. Xxxxxx Services Inc.
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxxx Xxx Xxxxxxxxxx
Telecopy: (000) 000-0000
DOMESTIC AND EURO-DOLLAR
LENDING OFFICE:
c/o X.X. Xxxxxx Services Inc.
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxxx Xxx Xxxxxxxxxx
Telecopy: (000) 000-0000
91
Signature Page to AMB Current Income Fund, inc. Amended and Restated
Credit Agreement
Commitment Bank
$25,000,000 BANK OF AMERICA, National Trust and
Savings Association
By:_____________________________
Name: Xxxxx X. Xxxxxx
Title: Regional Manager/Vice President
DOMESTIC AND EURO-CURRENCY
LENDING OFFICE:
Bank of America NT & SA
CRESG National 9105
00 Xxxxxxxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx Xxxxxx
Telecopy: (000) 000-0000
92
Signature Page to AMB Current Income Fund, Inc. Amended and Restated
Credit Agreement
Commitment Bank
$25,000,000 DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
DOMESTIC AND EURO-DOLLAR
LENDING OFFICE:
Dresdner Bank AG
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
93
Signature Page to AMB Current Income Fund, Inc. Amended and Restated
Credit Agreement
Commitment Bank
$25,000,000 FLEET NATIONAL BANK
By:_____________________________
Name:
Title:
DOMESTIC AND EURO-DOLLAR
LENDING OFFICE:
Fleet Bank
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxx
Telecopy: (000) 000-0000
94
Signature Page to AMB Current Income Fund, Inc. Amended and Restated
Credit Agreement
Commitment Bank
$25,000,000 THE BANK OF NOVA SCOTIA, acting through
its San Francisco Agency
By:_____________________________
Name: Xxxx Xxxxxxxxx
Title: Relationship Manager
DOMESTIC AND EURO-DOLLAR
LENDING OFFICE:
Bank of Nova Scotia
000 Xxxxxxxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Office Head, Real Estate Banking
Telecopy: (000) 000-0000
95
Signature Page to AMB Current Income Fund, Inc. Amended and Restated
Credit Agreement
Commitment Bank
$20,000,000 COMMERZBANK AKTIENGESELLSCHAFT,
LOS ANGELES BRANCH
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
DOMESTIC AND EURO-DOLLAR
LENDING OFFICE:
Commerzbank AG
000 X. Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
and to:
Commerzbank XX
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxx, Vice President
Telecopy: 000-000-0000
96
Signature Page to AMB Current Income Fund, Inc. Amended and Restated
Credit Agreement
Commitment Bank
$20,000,000 CORESTATES BANK, N.A.
By:_____________________________
Name:
Title:
DOMESTIC AND EURO-DOLLAR LENDING OFFICE:
CoreStates Bank
FC 1-8-10-67
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: R. Xxxxx Xxxxxx, Vice President
Telecopy: 000-000-0000
97
Signature Page to AMB Current Income Fund, Inc. Amended and Restated
Credit Agreement
Commitment Bank
$20,000,000 THE INDUSTRIAL BANK OF JAPAN, LIMITED
LOS ANGELES AGENCY
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
DOMESTIC AND EURO-DOLLAR LENDING OFFICE:
Industrial Bank of Japan, Limited
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Telecopy: 000-000-0000
98
Signature Page to AMB Current Income Fund, Inc. Amended and Restated
Credit Agreement
Commitment Bank
$15,000,000 UNION BANK OF CALIFORNIA, N.A.
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
DOMESTIC AND EURO-DOLLAR LENDING OFFICE:
Union Bank of California, N.A.
San Francisco Corporate Xxxxxx
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Telecopy: 000-000-0000
99
Total Commitments
$200,000,000 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By:_____________________________
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
c/o X.X. Xxxxxx Services Inc.
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxxxx Xxx Xxxxxxxxxx
Telecopy: (000) 000-0000
FUNDING INSTRUCTIONS:
Xxxxxx Guaranty Trust Company of
New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
ABA # 021 000 238
For Credit to: Loan Department
Account Number 000-00-000
Reference: AMB Current Income Fund
100
EXHIBIT A
FORM OF NOTE
NOTE
$ ________________ New York, New York
____________, 199_
For value received, AMB Current Income Fund, Inc., a Maryland corporation
(the "Borrower"), promises to pay to the order of ____________ (the "Bank"), for
the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the last day of the Interest Period relating to such Loan.
The Borrower promises to pay interest on the unpaid principal amount of each
such Loan on the dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of Xxxxxx Guaranty Trust Company of New York, 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx.
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This note is one of the Notes referred to in the Amended and Restated
Revolving Credit Agreement dated as of August 8, 1997 among the Borrower, the
banks listed on the signature pages thereof and Xxxxxx Guaranty Trust Company of
New York, as Agent (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
pre-payment hereof and the acceleration of the maturity hereof.
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All obligations, covenants and agreements contained or evidenced in this
Note, shall be fully recourse to Borrower and each and every asset of Borrower.
Notwithstanding the foregoing, no recourse under or upon any obligation,
covenant, agreement contained in this Note shall be had against any Non-Recourse
Party (as defined in the Credit Agreement) and no such Non-Recourse Party shall
be personally liable for payment of the Loans or other amounts due in respect
thereof (all such liability being expressly waived and released by each Bank and
the Agent).
AMB CURRENT INCOME FUND, INC.
By: ______________________
Name:
Title:
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Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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EXHIBIT B
See Attached.
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EXHIBIT C
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of __________, 199_ among [ASSIGNOR] (the "Assignor"),
[ASSIGNEE] (the "Assignee"), AMB CURRENT INCOME FUND, INC. (the "Borrower") and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Assignment")
relates to the Amended and Restated Revolving Credit Agreement dated as of
August 8, 1997 (the "Credit Agreement") among the Borrower, the Assignor and the
other Banks party thereto, as Banks, and the Agent;
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $__________;
WHEREAS, Loans made to the Borrower by the Assignor under the Credit
Agreement in the aggregate principal amount of $____________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Loans, and the Assignee
proposes to accept assignment of such rights and assume the corresponding
obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not other- wise defined herein
shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the Assignee all
of the rights of the Assignor under the Credit Agreement to the extent of the
Assigned Amount, and the Assignee hereby accepts such assignment from the
Assignor and assumes all of the obligations of the
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Assignor under the Credit Agreement to the extent of the Assigned Amount,
including the purchase from the Assignor of the corresponding portion of the
principal amount of the Loans made by the Assignor outstanding at the date
hereof. Upon the execution and delivery hereof by the Assignor, the Assignee,
the Borrower and the Agent and the payment of the amounts specified in Section 3
required to be paid on the date hereof (i) the Assignee shall, as of the date
hereof, succeed to the rights and be obligated to perform the obligations of a
Bank under the Credit Agreement with a Commitment in an amount equal to the
Assigned Amount, and (ii) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale contemplated
in Section 2 hereof, the Assignee shall pay to the Assignor on the date hereof
in Federal funds the amount heretofore agreed between them.* It is understood
that Commitment Fees accrued to the date hereof are for the account of the
Assignor and such fees accruing from and including the date hereof are for the
account of the Assignee. Each of the Assignor and the Assignee hereby agrees
that if it receives any amount under the Credit Agreement which is for the
account of the other party hereto, it shall receive the same for the account of
such other party to the extent of such other party's interest therein and shall
promptly pay the same to such other party.
SECTION 4. Consent of the Borrower and the Agent. This Agreement is conditioned
upon the consent of the Borrower and the Agent to the extent required by Section
10.6(c) of the Credit Agreement. The execution of this Agreement by the Borrower
and the Agent is evidence of this consent (if such consent is required).
Pursuant to Section 10.6(c), the Borrower agrees to execute and deliver a Note
payable to the order of the Assignee to evidence the assignment and assumption
provided for herein.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no representation or
warranty in connection with, and shall
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* Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the Assignee. It
may be preferable in an appropriate case to specify these amounts
generically or by formula rather than as a fixed sum.
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have no responsibility with respect to, the solvency, financial condition, or
statements of the Borrower, or the validity and enforceability of the
obligations of the Borrower in respect of the Credit Agreement or any Note. The
Assignee acknowledges that it has, independently and without reliance on the
Assignor, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
[ASSIGNOR]
By:_______________________
Title:
[ASSIGNEE]
By:________________________
Title:
AMB CURRENT INCOME FUND, INC.
By:________________________
Title:__________________
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By:________________________
Title:
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EXHIBIT D
NEW BORROWER ASSUMPTION AGREEMENT
(See Attached)
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EXHIBIT E
FORM OF NEW BORROWER NOTE
NOTE
$ ________________ New York, New York
____________, 199_
For value received, [INSERT NAME OF NEW BORROWER] (the "Borrower"),
promises to pay to the order of ____________ (the "Bank"), for the account of
its Applicable Lending Office, the unpaid principal amount of each Loan made by
the Bank to the Borrower pursuant to the Credit Agreement referred to below on
the last day of the Interest Period relating to such Loan. The Borrower promises
to pay interest on the unpaid principal amount of each such Loan on the dates
and at the rate or rates provided for in the Credit Agreement. All such payments
of principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of Xxxxxx Guaranty
Trust Company of New York, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This note is one of the New Borrower Notes referred to in the Amended and
Restated Revolving Credit Agreement dated as of August 8, 1997 among AMB Current
Income Fund, Inc., the banks listed on the signature pages thereof and Xxxxxx
Guaranty Trust Company of New York, as Agent (as the same may be amended from
time to time, the "Credit Agreement"). Borrower has assumed AMB Current Income
Fund, Inc.'s rights and obligations in, to and under the Credit Agreement
pursuant to that certain Assumption Agreement, of even date herewith, by and
between Borrower and Xxxxxx Guaranty Trust Company of New York, as Agent. Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
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All obligations, covenants and agreements contained or evidenced in this
Note, shall be fully recourse to Borrower and each and every asset of Borrower.
Notwithstanding the foregoing, no recourse under or upon any obligation,
covenant, agreement contained in this Note shall be had against any Non-Recourse
Party (as defined in the Credit Agreement) and no such Non-Recourse Party shall
be personally liable for payment of the Loans or other amounts due in respect
thereof (all such liability being expressly waived and released by each Bank and
the Agent).
[NEW BORROWER]
By: ______________________
Name:
Title:
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Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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EXHIBIT F
LIST OF ASSUMPTION DOCUMENTS**
1. Assumption Agreement between the "New Borrower" and Xxxxxx Guaranty Trust
Company of New York, as agent for the Banks.
2. Promissory Notes executed by New Borrower and payable to each Bank
evidencing the Loans to be made by such Bank under the Credit Agreement.
3. If the New Borrower is a partnership: the General Partner Guaranty by the
general partner of the "New Borrower".
4. If applicable, any Subsidiary Guaranties.
5. If the New Borrower is a partnership: Certificate of the Secretary of the
New Borrower or, if applicable, the general partner of the New Borrower dated
the date of the New Borrower Assumption (a) certifying (1) the names and true
signatures of the incumbent officers of the general partner of the New Borrower
authorized to sign the Assumption Agreement, the Notes, the General Partner
Guaranty and the other Loan Documents on behalf of the New Borrower and the
general partner, as applicable, (2) the resolutions of the general partner of
the New Borrower's Board of Directors approving and authorizing the execution,
delivery and performance of the Assumption Agreement, the Notes, the General
Partner Guaranty and all other Loan Documents executed by the New Borrower and
the general partner, as applicable, (3) a copy of the Certificate of
Incorporation of the general partner of the New Borrower, together with all
amendments thereto, if any, certified by the Secretary of State of its
incorporation, (4) the partnership agreement of the New Borrower together with a
copy of the Certificate of Limited Partnership of the New Borrower certified by
the Secretary of State of the New Borrower's formation and (b) attaching copies
of each of the foregoing items so certified.
6. If the New Borrower is a corporation: Certificate of the Secretary of the
New Borrower dated the date of the New Borrower Assumption (a) certifying (1)
the names and true signatures of the incumbent officers of the New Borrower
authorized to sign the Assumption Agreement, the Notes, and the other Loan
Documents on behalf of the New Borrower, (2) the resolutions of the New
Borrower's Board of Directors approving and authorizing the execution, delivery
and performance of the Assumption Agreement, the Notes, and all other Loan
Documents executed by the New Borrower, (3) a copy of the Certificate of
Incorporation of the New Borrower, together with all amendments thereto, if any,
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** Capitalized terms used herein but not otherwise defined herein have the
meanings assigned to such terms in the Credit Agreement.
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certified by the Secretary of State of its incorporation, and (b) attaching
copies of each of the foregoing items so certified.
7. Certificates of Good Standing for the New Borrower and, if the New
Borrower is a partnership, the general partner of the New Borrower.
8. Opinion of counsel for the New Borrower, regarding the due authorization,
execution, delivery and enforceability of the Assumption Agreement and the
Notes, in form and substance satisfactory to the Agent, and opinion of special
Maryland counsel for the New Borrower (or, if applicable, the general partner of
the New Borrower), in form and substance satisfactory to the Agent (including an
opinion of counsel with respect to the General Partner Guaranty, if applicable).
The Banks shall not require legal opinions with respect to any Subsidiary
Guaranty.
9. Officer's Certificates of the New Borrower dated the Assumption Date,
certifying, among other things, satisfaction of the conditions precedent to the
New Borrower Assumption set forth in Section 9.2 of the Credit Agreement,
including, without limitation, the items set forth in Section 9.2(a)(iii).
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EXHIBIT G
FORM OF BORROWING BASE PROPERTY CERTIFICATE
[Date]
To: Xxxxxx Guaranty Trust Company of New York ("Agent"), as Agent for the
Banks party to Amended and Restated Revolving Credit Agreement dated as of
August 8, 1997 (the "Credit Agreement") among AMB Current Income Fund,
Inc., and the Banks party thereto, as banks, and the Agent
Re: [INSERT DESCRIPTION OF THE NEW ACQUISITION OR REAL PROPERTY ASSET TO
BE ADDED TO BORROWING BASE] (the "New Borrowing Base Property")
The undersigned requests that the above-described New Borrowing Base
Property be added to the "Borrowing Base Properties" under the terms of the
Credit Agreement. Capitalized terms used but not defined herein shall have the
meaning ascribed thereto in the Credit Agreement.
Pursuant to Section 3.3(a) of the Credit Agreement, the undersigned hereby
certifies as follows with respect to the New Borrowing Base Property:
1. The New Borrowing Base Property is 100% owned in fee or
leasehold by AIF or RIF or a Consolidated Subsidiary of AIF or RIF.***
2. The New Borrowing Base Property is not subject to any Lien,
other than Permitted Liens.
3. The New Borrowing Base Property is not an interest in a
participating mortgage.
Insert if New Borrowing Base Property is owned by any Consolidated
Subsidiary which is a distinct corporate or partnership entity (exclusive of
mere title holding entities, such as land trusts): The Consolidated Subsidiary
that owns the New Borrowing Base Property has delivered to the Agent a
Subsidiary Guaranty with respect thereto, as required by Section 9.3 of the
Credit Agreement.
The undersigned acknowledges and agrees that the Agent and the Banks will
be relying on the foregoing certifications in adding the New Borrowing Base
Property as a Borrowing Base Property under the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has caused this certificate to
be duly executed as of the date first above written.
AMB CURRENT INCOME FUND, INC.
By:____________________________
Title:_________________________
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*** Subsequent to the AMB Consolidation Transactions, the term "Borrower" will
be substituted for "AIF or RIF".
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EXHIBIT H
FORM OF GENERAL PARTNER GUARANTY
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SCHEDULE 4.17(a)
REAL PROPERTY ASSETS
Los Angeles Industrial Portfolio*
Texas Industrial Portfolio
Minneapolis Distribution Center
Southbay Industrial Portfolio*
Lake Michigan Industrial Portfolio
Southfield Industrial Portfolio*@
Lisle Industrial
Elk Grove Industrial*
Kent Centre Industrial
Two South Middlesex Industrial
Beacon Industrial
Milmont Page Business Center*
Bayhill Shopping Center
Five Points Shopping Center
Corbins Corner Shopping Center*
Pleasant Hill Shopping Center*
Applewood Village Shopping Center
Artesia Industrial Portfolio*
Xxxxxxx'x Houston Shopping Centers
Riverview Shopping Center
Long Gate Shopping Center
Rockford Road Shopping Center
* See Schedule 4.17(b)
@ Southfield Industrial Portfolio includes Old Xxxxx
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SCHEDULE 4.17(b)
LIENS
South Bay Industrial Joint Venture Mortgage $19,571,001
(AMB/SF/CIF Limited Partnership)
Los Angeles Industrial Portfolio $19,199,000
Southfield Industrial Portfolio@ $11,315,000
Elk Grove Industrial Portfolio $11,826,000
Milmont Page Business Center $ 5,110,000
Artesia Industrial Portfolio $54,100,000
Corbins Corner Shopping Center $14,527,000
Pleasant Hill Shopping Center $11,023,000
@ Southfield Industrial Portfolio lien does not include Old Xxxxx
