EXHIBIT 10.1
CREDIT AGREEMENT
dated as of
January 31, 2005
among
EDUCATION REALTY OPERATING PARTNERSHIP, LP
AND CERTAIN OF ITS SUBSIDIARIES, as Borrower
and
The Lenders Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
and
UBS SECURITIES LLC,
As Syndication Agent
================================================================================
X.X. XXXXXX SECURITIES INC. AND UBS SECURITIES LLC,
As Joint Bookrunners and Joint Lead Arrangers
TABLE OF CONTENTS
ARTICLE I Definitions.................................................................................... 1
SECTION 1.01. Defined Terms.......................................................................... 1
SECTION 1.02. Classification of Loans and Borrowings................................................. 20
SECTION 1.03. Terms Generally........................................................................ 20
SECTION 1.04. Accounting Terms; GAAP................................................................. 20
ARTICLE II The Credits................................................................................... 21
SECTION 2.01. Commitments............................................................................ 21
SECTION 2.02. Loans and Borrowings................................................................... 21
SECTION 2.03. Requests for Revolving Borrowings...................................................... 22
SECTION 2.04. Swingline.............................................................................. 22
SECTION 2.05. Letters of Credit...................................................................... 24
SECTION 2.06. Funding of Borrowings.................................................................. 27
SECTION 2.07. Interest Elections..................................................................... 28
SECTION 2.08. Termination, Reduction and Increase of Commitments..................................... 29
SECTION 2.09. Repayment of Loans; Evidence of Debt................................................... 30
SECTION 2.10. Prepayment of Loans.................................................................... 31
SECTION 2.11. Fees................................................................................... 32
SECTION 2.12. Interest............................................................................... 33
SECTION 2.13. Alternate Rate of Interest............................................................. 34
SECTION 2.14. Increased Costs........................................................................ 34
SECTION 2.15. Break Funding Payments................................................................. 35
SECTION 2.16. Taxes.................................................................................. 36
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs............................ 37
SECTION 2.18. Mitigation Obligations; Replacement of Lenders......................................... 38
SECTION 2.19. Extension.............................................................................. 39
ARTICLE III Representations and Warranties............................................................... 40
SECTION 3.01. Organization; Powers................................................................... 40
SECTION 3.02. Authorization; Enforceability.......................................................... 40
SECTION 3.03. Governmental Approvals; No Conflicts................................................... 41
SECTION 3.04. Financial Condition; No Material Adverse Change........................................ 41
SECTION 3.05. Properties............................................................................. 41
SECTION 3.06. Intellectual Property.................................................................. 43
SECTION 3.07. Litigation and Environmental Matters................................................... 43
SECTION 3.08. Compliance with Laws and Agreements.................................................... 45
SECTION 3.09. Investment and Holding Company Status.................................................. 45
SECTION 3.10. Taxes.................................................................................. 45
SECTION 3.11. ERISA.................................................................................. 45
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SECTION 3.12. Disclosure............................................................................. 45
SECTION 3.13. Insurance.............................................................................. 46
SECTION 3.14. Margin Regulations..................................................................... 46
SECTION 3.15. Subsidiaries........................................................................... 46
ARTICLE IV Conditions.................................................................................... 46
SECTION 4.01. Effective Date......................................................................... 46
SECTION 4.02. Each Credit Event...................................................................... 47
ARTICLE V Affirmative Covenants.......................................................................... 48
SECTION 5.01. Financial Statements; Ratings Change and Other Information............................. 48
SECTION 5.02. Financial Tests........................................................................ 49
SECTION 5.03. Notices of Material Events............................................................. 50
SECTION 5.04. Existence; Conduct of Business......................................................... 50
SECTION 5.05. Payment of Obligations................................................................. 50
SECTION 5.06. Maintenance of Properties; Insurance................................................... 50
SECTION 5.07. Books and Records; Inspection Rights................................................... 52
SECTION 5.08. Compliance with Laws................................................................... 52
SECTION 5.09. Use of Proceeds and Letters of Credit.................................................. 52
SECTION 5.10. Fiscal Year............................................................................ 52
SECTION 5.11. Environmental Matters.................................................................. 52
SECTION 5.12. Property Pool.......................................................................... 53
SECTION 5.13. Further Assurances..................................................................... 54
SECTION 5.14. Partial Releases....................................................................... 55
SECTION 5.15. Parent Covenants....................................................................... 55
ARTICLE VI Negative Covenants............................................................................ 56
SECTION 6.01. Sale/Leaseback......................................................................... 56
SECTION 6.02. Liens.................................................................................. 56
SECTION 6.03. Fundamental Changes.................................................................... 56
SECTION 6.04. Investments, Loans, Advances and Acquisitions.......................................... 57
SECTION 6.05. Hedging Agreements..................................................................... 58
SECTION 6.06. Restricted Payments.................................................................... 58
SECTION 6.07. Transactions with Affiliates........................................................... 58
SECTION 6.08. Parent Negative Covenants.............................................................. 58
SECTION 6.09. Restrictive Agreements................................................................. 59
ARTICLE VII Events of Default............................................................................ 59
ARTICLE VIII The Administrative Agent.................................................................... 61
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ARTICLE IX Miscellaneous................................................................................. 63
SECTION 9.01. Notices................................................................................ 63
SECTION 9.02. Waivers; Amendments.................................................................... 64
SECTION 9.03. Expenses; Indemnity; Damage Waiver..................................................... 65
SECTION 9.04. Successors and Assigns................................................................. 66
SECTION 9.05. Survival............................................................................... 69
SECTION 9.06. Counterparts; Integration; Effectiveness............................................... 69
SECTION 9.07. Severability........................................................................... 70
SECTION 9.08. Right of Setoff........................................................................ 70
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process............................. 71
SECTION 9.10. WAIVER OF JURY TRIAL................................................................... 71
SECTION 9.11. Headings............................................................................... 72
SECTION 9.12. Confidentiality........................................................................ 72
SECTION 9.13. Interest Rate Limitation............................................................... 72
SCHEDULES:
Schedule 2.01 - Commitments
Schedule 3.05(f) - Earthquake or Seismic Area
Schedule 3.07 - ADA Disclosure
Schedule 3.15 - Subsidiaries
Schedule 5.12 - Pool
Schedule 6.02 -- Existing Liens
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B - Form of Compliance Certificate
Exhibit C - Form of Guaranty
Exhibit D - Form of Note
Exhibit E - Form of Borrowing Request/Interest Rate Election
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CREDIT AGREEMENT ("Agreement") dated as of
January 31, 2005, among
EDUCATION REALTY OPERATING PARTNERSHIP, LP,
a Delaware limited partnership, EDR Athens I, LLC,
a Delaware limited liability company,
EDR Tallahassee I, LLC, a Delaware limited liability company,
EDR C Station, LLC, a Delaware limited liability company,
EDR Tallahassee Limited Partnership, a Delaware limited partnership,
EDR Xxxxxx Limited Partnership, a Delaware limited partnership,
EDR Xxxxxxxx Limited Partnership, a Delaware limited partnership,
the LENDERS party hereto,
JPMORGAN CHASE BANK, N.A., as Administrative Agent, and
UBS SECURITIES, LLC, as Syndication Agent
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR," when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, N.A., in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day, and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Revolving Credit Exposure most recently in effect,
giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to any ABR Loan
or Eurodollar Revolving Loan, as the case may be, the applicable rate per annum
set forth below under the caption "ABR Spread" or "Eurodollar Spread," as the
case may be, based upon the Total Leverage Ratio applicable on such date:
ABR Eurodollar
Total Leverage Ratio Spread Spread
Category 1 0.25% 1.50%
< or = 45%
Category 2 0.50% 1.75%
> 45% but < or = 50%
Category 3 0.75% 2.00%
> 50% but < or = 60%
Category 4 1.00% 2.25%
> 60%
Each change in the Applicable Rate shall apply during the period commencing on
the date of the most recent Compliance Certificate delivered to the
Administrative Agent and ending on the date of receipt of the next Compliance
Certificate pursuant to Section 5.01(c). If a Compliance Certificate is not
delivered to the Administrative Agent in accordance with Section 5.01(c) the
Applicable Rate shall be deemed to be in Category 4 until the required
Compliance Certificate is delivered to the Administrative Agent.
"Appraisal" (whether one or more) means a written appraisal of Real
Property by an appraiser satisfactory to the Administrative Agent ordered by the
Administrative Agent and dated no more than twelve (12) months prior to the
current date. Each Appraisal must comply with all Legal Requirements and, unless
specifically provided to the contrary in this Agreement, must be in form and
substance satisfactory to the Administrative Agent and all of the Required
Lenders.
"Appraised Value" means the value of Real Property, as set forth in
the Appraisal for such Real Property.
"Approved Fund" has the meaning set forth in Section 9.04(b).
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"Assets Under Development" means all Real Property, or phases
thereof, that is under construction or development as an income-producing
project in a diligent manner and in accordance with industry standard
construction schedules, but for which a certificate of occupancy has not been
issued.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the Maturity Date.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means, collectively, Education Realty Operating
Partnership, LP, a Delaware limited partnership, EDR Athens I, LLC, a Delaware
limited liability company, EDR Tallahassee I, LLC, a Delaware limited liability
company, EDR C Station, LLC, a Delaware limited liability company, EDR
Tallahassee Limited Partnership, a Delaware limited partnership, EDR Xxxxxx
Limited Partnership, a Delaware limited partnership, and EDR Xxxxxxxx Limited
Partnership, a Delaware limited partnership, and any other Person who from time
to time becomes a "Borrower" as required by Section 5.12.
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Base Availability" means the aggregate of the following
calculated for each Mortgaged Property in the Pool: the lesser of (a) sixty-five
percent (65%) of the Pool Value; or (b) the lesser of (i) the loan amount which
would produce a debt service coverage ratio (defined as the Net Operating Income
for the subject property divided by accrued interest on such loan amount for the
same period used to calculate Net Operating Income based on an interest rate
equal to the Adjusted LIBO Rate for a three (3) month Interest Period plus the
Applicable Rate, each on the date of calculation) of 1.30:1.00, or (ii) the loan
amount which would produce a debt service coverage ratio (defined as the Net
Operating Income for the subject property divided by the annual principal and
interest payments that would be required on a loan for such amount based on a
thirty (30) year amortization and an interest rate equal to the greater of (1)
the rate per annum on the date of determination of obligations of the United
States Treasury with a term of ten (10) years, plus one and three-fourths
percent (1-3/4%) or (2) seven percent (7%) per annum) of 1.30:1.00.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.03.
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"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in Houston, Texas or New York, New York are
authorized or required by law to remain closed; provided that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Capital Expenditure Reserve" means, on an annual basis, an amount
equal to (a) the aggregate number of beds available for lease in each Real
Property parcel owned by Borrower or any Subsidiary measured as of the last day
of each of the immediately preceding four (4) calendar quarters and averaged,
multiplied by (b) $125.00.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than thirty percent (30%) of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of the Parent; (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Parent by Persons who were neither (i) nominated by the board
of directors of the Parent nor (ii) appointed by directors so nominated; or (c)
the acquisition of direct or indirect Control of the Parent by any Person or
group.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement by any Governmental Authority, (b)
any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this
Agreement or (c) compliance by any Lender or the Issuing Bank (or, for purposes
of Section 2.14(b), by any lending office of such Lender or by such Lender's or
the Issuing Bank's holding company, if any) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"Class," when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means all property, tangible or intangible, real,
personal or mixed, now or hereafter subject to the liens and security interests
of the Loan Documents, or intended so to be.
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"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit Exposure hereunder,
as such commitment may be reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Lender's Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Commitment, as
applicable. The initial aggregate amount of the Lenders' Commitments is
$75,000,000.00.
"Compliance Certificate" has the meaning set forth in Section
5.01(c) hereof and a form of which is attached hereto as Exhibit B.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise,
which includes the customary powers of a managing member of any limited
liability company, any general partner of any limited partnership, or any board
of directors of a corporation. "Controlling" and "Controlled" have meanings
correlative thereto.
"Credit Party" means each Borrower and each Guarantor.
"Current Survey" shall mean boundary survey of each of the Mortgaged
Properties dated currently with the date such survey is required to be furnished
pursuant to any provision of this Agreement, performed by a registered public
land surveyor duly licensed as such in the states where the Mortgaged Properties
are located, acceptable to the Administrative Agent and complying with all Legal
Requirements. Each Current Survey shall be evidenced by a survey plat with north
arrow showing the length and direction of the perimeter boundaries of the
Mortgaged Properties, the location and dimensions of all improvements in place
as of the date of such survey, names of adjacent and nearby streets and roads,
fences, setback lines, encroachments, easements, rights-of-way, party walls and
railroads, if any, affecting the Mortgaged Properties, a legal description of
the Mortgaged Properties and the date of the survey.
"Deed of Trust" (whether one or more) means a deed of trust and
security agreement, a mortgage and security agreement, or a security deed and
security agreement covering the Mortgaged Properties.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Dollars" or "$" refers to lawful money of the United States of
America.
"EBITDA" means an amount derived from (a) net income, plus (b) to
the extent included in the determination of net income, depreciation,
amortization, interest expense and
5
income taxes, plus or minus (c) to the extent included in the determination of
net income, any extraordinary losses or gains resulting from sales or payment of
Indebtedness, in each case, as determined on a consolidated basis in accordance
with GAAP, and including (without duplication) the Equity Percentage of EBITDA
for the Borrower's Unconsolidated Affiliates. If EBITDA is calculated over a
period of less than four (4) quarters which includes the month of August, then
the average EBITDA for the months in the calculation period other than August
will be substituted for the August EBITDA.
"EDR" means Education Realty Operating Partnership, LP, a Delaware
limited partnership.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Eligible Ground Lease" shall mean a lease meeting the following
requirements: (a) a remaining term (including renewal options exercisable at
lessee's sole option) of at least forty (40) years, (b) may be transferred
and/or assigned by lessee without landlord's consent and (c) the Administrative
Agent has determined that the ground lease is financeable in that it contains
customary lender protection provisions and provides or allows for, without
further consent from the landlord, (i) notice and right to cure to lessee's
lender, (ii) a pledge and mortgage of the leasehold interest, (iii) recognition
of a foreclosure of the leasehold interest including no prohibition on entering
into a new lease with the lender, and (iv) no right of landlord to terminate the
lease without consent of lessee's lender.
"Environmental Assessment" shall mean a written assessment and
report ordered by the Administrative Agent as to the status of any Real Property
regarding compliance with any Legal Requirements related to environmental
matters. Each Environmental Assessment must comply with all Legal Requirements.
"Environmental Claim" means any notice of violation, action, claim,
Environmental Lien, demand, abatement or other order or direction (conditional
or otherwise) by any Governmental Authority or any other Person for personal
injury (including sickness, disease or death), tangible or intangible property
damage, damage to the environment, nuisance, pollution, contamination or other
adverse effects on the environment, or for fines, penalties or restriction,
resulting from or based upon (i) the existence, or the continuation of the
existence, of a Release (including, without limitation, sudden or non-sudden
accidental or non-accidental Releases) of, or exposure to, any Hazardous
Material, or other Release in, into or onto the environment (including, without
limitation, the air, soil, surface water or groundwater) at, in, by, from or
related to any property owned, operated or leased by the Borrower or any of its
Subsidiaries or any activities or operations thereof; (ii) the environmental
aspects of the transportation, storage, treatment or disposal of Hazardous
Materials in connection with any property owned, operated or leased by the
Borrower or any of its Subsidiaries or their operations or facilities; or (iii)
the violation, or alleged violation, of any Environmental Laws or Environmental
Permits of or from any Governmental Authority relating to environmental matters
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connected with any property owned, leased or operated by the Borrower or any of
its Subsidiaries.
"Environmental Indemnity" means, collectively, each Environmental
Risk Agreement of even date herewith executed by the Borrower and Guarantor and
delivered to the Administrative Agent, together with each Environmental Risk
Agreement hereafter executed with respect to any of the Mortgaged Properties..
"Environmental Laws" means all applicable laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters and includes (without limitation) the
Comprehensive Environmental Response, Compensation, and Liability Act
("CERCLA"), 42 U.S.C. Section 9601 et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et seq., the Federal Insecticide,
Fungicide, and Rodenticide Act, 7 U.S.C. Section 136 et seq., the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 6901 et seq., the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., the Clean Air Act,
42 U.S.C. Section 7401 et seq., the Clean Water Act, 33 U.S.C. Section 1251 et
seq., the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq., (to
the extent the same relates to any Hazardous Materials), and the Oil Pollution
Act of 1990, 33 U.S.C. Section 2701 et seq., as such laws have been amended or
supplemented, and the regulations promulgated pursuant thereto, and all
analogous state and local statutes.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) exposure to any Hazardous Materials in violation of any
Environmental Law, (c) the Release or threatened Release of any Hazardous
Materials into the environment in violation of any Environmental Law or (d) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"Environmental Lien" means any lien in favor of any Governmental
Authority arising under any Environmental Law.
"Environmental Permit" means any permit required under any
applicable Environmental Law or under any and all supporting documents
associated therewith.
"Equity Percentage" means the aggregate ownership percentage of
Borrower in each Unconsolidated Affiliate, which shall be calculated as the
greater of (a) Borrower's nominal capital ownership interest in the
Unconsolidated Affiliate as set forth in the Unconsolidated Affiliate's
organizational documents, and (b) Borrower's economic ownership interest in the
Unconsolidated Affiliate, reflecting Borrower's share of income and expenses of
the Unconsolidated Affiliate.
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"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar," when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.18(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.16(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
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additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.16(a).
"Extension Request" has the meaning set forth in Section 2.19.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer or the chief
accounting officer of the Borrower.
"Financing Statements" means all such Uniform Commercial Code
financing statements as the Administrative Agent shall require, duly authorized
by the Borrower to give notice of and to perfect or continue perfection of the
Lenders' security interest in all Collateral.
"Fixed Charge Coverage Ratio" shall mean the ratio of (a) the sum of
the Parent's EBITDA and the Borrower's EBITDA for the immediately preceding four
(4) calendar quarters (or the period between the Measurement Date and the
calculation date, if shorter) less the Capital Expenditure Reserve for such
period; to (b) all of the principal due and payable and principal paid on the
Parent's Indebtedness and on the Borrower's Indebtedness (including scheduled
payments on Capital Lease Obligations), plus all of the Parent's and the
Borrower's Interest Expense, plus the aggregate of all cash dividends payable on
the preferred stock of the Parent or any of its Subsidiaries, in each case for
the period used to calculate EBITDA, all of the foregoing calculated without
duplication.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is organized. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Funds From Operations" shall mean net income of the Borrower
determined in accordance with GAAP, plus depreciation and amortization;
provided, that there shall not be included in such calculation any gain or loss
from debt restructuring and sales of property. Funds From Operations will be
calculated for the four (4) calendar quarters immediately preceding the date of
the calculation. Funds From Operations shall be calculated on a consolidated
basis, and including (without duplication) the Equity Percentage of Funds From
Operations for the Borrower's Unconsolidated Affiliates.
9
"GAAP" means generally accepted accounting principles in the United
States of America, subject to the provisions of Section 1.04.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantor" means the Parent, and any other Person who from time to
time has executed a Guaranty as required by the terms of this Agreement.
"Guaranty" means a guaranty in the form of Exhibit C attached
hereto.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances or wastes, including petroleum
or petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Historical Value" shall mean the purchase price of Real Property
(including improvements) and ordinary related purchase transaction costs, plus
the cost of subsequent capital improvements (including construction costs for
property under construction or
10
development) made by the Borrower, less any provision for losses, all determined
in accordance with GAAP. If the Real Property is purchased as a part of a group
of properties, the Historical Value shall be calculated based upon a pro rata
allocation of the aggregate purchase price by the Borrower based on net
operating income of such property, and consistent with GAAP.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances, (k)
all obligations contingent or otherwise, of such Person with respect to any
Hedging Agreements (calculated on a xxxx-to-market basis as of the reporting
date), and (l) payments received in consideration of sale of an ownership
interest in Borrower when the interest so sold is determined, and the date of
delivery is, more than one (1) month after receipt of such payment and only to
the extent that the obligation to deliver such interest is not payable solely in
such interest of such Person. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor. Indebtedness shall be calculated on a consolidated basis in
accordance with GAAP, and including (without duplication) the Equity Percentage
of Indebtedness for the Borrower's Unconsolidated Affiliates.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Coverage Ratio" shall mean the ratio of (a) the sum of the
Parent's EBITDA and the Borrower's EBITDA for the immediately preceding four (4)
calendar quarters (or the period between the Measurement Date and the
calculation date, if shorter) to (b) all of the Parent's and the Borrower's
Interest Expense for the period used to calculate EBITDA.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.07.
"Interest Expense" shall mean all of a Person's paid, accrued or
capitalized interest expense on such Person's Indebtedness (whether direct,
indirect or contingent, and including,
11
without limitation, interest on all convertible debt), and including (without
duplication) the Equity Percentage of Interest Expense for the Borrower's
Unconsolidated Affiliates.
"Interest Payment Date" means the first Business Day of each
calendar month.
"Interest Period" means with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two or three
months thereafter; provided, that (a) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day and (b)
any Interest Period pertaining to a Eurodollar Borrowing that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
"Issuing Bank" means JPMorgan Chase Bank, N.A., in its capacity as
the issuer of Letters of Credit hereunder, and its successors in such capacity
as provided in Section 2.05(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"JPMCB" means JPMorgan Chase Bank, N.A., in its individual capacity.
"LC Disbursement" means a payment made by the Issuing Bank pursuant
to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Legal Requirement" means any law, statute, ordinance, decree,
requirement, order, judgment, rule, regulation (or interpretation of any of the
foregoing) of, and the terms of any license or permit issued by, any
Governmental Authority.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lender" includes the Swingline Lender.
12
"Letter of Credit" means any letter of credit issued pursuant to
this Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate (rounded
upwards, if necessary, to the next 1/100 of 1%) at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Lien" means, with respect to an asset, (a) any mortgage, deed of
trust, lien (statutory or other), pledge, hypothecation, negative pledge,
collateral assignment, encumbrance, deposit arrangement, charge or security
interest in, on or of such asset; (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset; (c) the filing under the Uniform Commercial
Code or comparable law of any jurisdiction of any financing statement naming the
owner of the asset to which such Lien relates as debtor; (d) any other
preferential arrangement of any kind or nature whatsoever intended to assure
payment of any Indebtedness or other obligation; and (e) in the case of
securities, any purchase option, call or similar right of a third party with
respect to such securities.
"Loan Documents" means this Agreement, the Notes, the Guaranty, the
Deed of Trust, the Financing Statements, the Environmental Indemnity, and all
other instruments, agreements and written obligations executed and delivered by
any of the Credit Parties in connection with the transactions contemplated
hereby.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Management Company" means the manager of the Real Property owned by
EDR or a Subsidiary of EDR.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, or condition, financial or otherwise, of (i) the
Borrower and its Subsidiaries, other than owners of Mortgaged Properties, and
the Guarantor, taken as a whole, or (ii) any owner of a Mortgaged Property, (b)
the ability of any of the Credit Parties to perform their obligations under the
Loan Documents or (c) the rights of or benefits available to the Administrative
Agent or the Lenders under the Loan Documents.
13
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Borrower and the other Credit Parties in an aggregate
principal amount exceeding $10,000,000.
"Maturity Date" means January 31, 2008, as the same may be extended
in accordance with Section 2.19.
"Maximum Loan Available Amount" means, on any date, an amount equal
to the lesser of (a) the aggregate Revolving Loan Commitments or (b) the
aggregate Borrowing Base Availability.
"Maximum Rate" shall have the meaning set forth in Section 9.13.
"Measurement Date" means the earlier of (a) the first date that at
least $25,000,000.00 in Loans are outstanding and (b) March 31, 2006.
"Mortgaged Properties" means the Real Property described on Schedule
5.12 attached hereto and together with any additional property, whether now
existing or hereafter acquired, which is or is to become subject to the Liens of
a Deed of Trust in accordance with this Agreement.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Operating Income" shall mean, for any income producing
operating Real Property, the difference between (a) any rentals, proceeds and
other income received from such property, including early lease termination
penalties to the extent no new tenant is in place and allocated over the
applicable remaining term (but excluding security or other deposits, or other
income of a non-recurring nature) during the determination period, less (b) an
amount equal to all costs and expenses (excluding Interest Expense and any
expenditures that are capitalized in accordance with GAAP) incurred as a result
of, or in connection with, or properly allocated to, the operation or leasing of
such property during the determination period, and the Capital Expenditure
Reserve; provided, however, that the amount for the expenses for the management
of a property included in clause (b) above shall be set at three percent (3%) of
the amount provided in clause (a) above. Net Operating Income shall be
calculated based on the immediately preceding four (4) calendar quarters unless
the Real Property has not been owned by the Borrower or its Subsidiaries for
four (4) calendar quarters, in which event (i) Net Operating Income shall be
calculated for the period of ownership, and annualized, and (ii) if the period
of ownership includes the month of August, the Net Operating Income for August
will be disregarded in the annualization calculation. Net Operating Income shall
be calculated on a consolidated basis in accordance with GAAP, and including
(without duplication) the Equity Percentage of Net Operating Income for the
Borrower's Unconsolidated Affiliates.
14
"Note" means a promissory note in the form attached hereto as
Exhibit D payable to a Lender evidencing certain of the obligations of the
Borrower to such Lender and executed by Borrower, as the same may be amended,
supplemented, modified or restated from time to time; "Notes" means,
collectively, all of such Notes outstanding at any given time.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement, and not
including the Excluded Taxes.
"Parent" means Education Realty Trust, Inc., a Maryland corporation
and the parent of EDR.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.05;
(b) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(c) deposits to secure the performance of bids, trade contracts,
purchase, construction or sales contracts, leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature, in
each case in the ordinary course of business;
(d) the Title Instruments, Liens and other matters described in the
Title Insurance Policy;
(e) uniform commercial code protective filings with respect to
personal property leased to the Borrower or any Subsidiary; and
(f) landlords' liens for rent not yet due and payable;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness other than the Loans.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency
15
thereof to the extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing within one
year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having an investment grade credit
rating on the date of acquisition;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of
not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not
more than 90 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above; and
(e) investments in Subsidiaries and Unconsolidated Affiliates made
in accordance with this Agreement.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pool" has the meaning set forth in Section 5.12.
"Pool Value" means, as to each property in the Pool, (a) for Real
Property that has been owned by the Borrower for less than twelve (12) months,
the lesser of (i) the "as stabilized" Appraised Value of such property, and (ii)
the Historical Value of such property, and (b) thereafter and for all other Real
Property, the "as is" Appraised Value of such property.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank, N.A., as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Real Property" means, collectively, all interest in any land and
improvements located thereon (including direct financing leases of land and
improvements owned by a Person),
16
together with all equipment, furniture, materials, supplies and personal
property now or hereafter located at or used in connection with the land and all
appurtenances, additions, improvements, renewals, substitutions and replacements
thereof now or hereafter acquired by any Person.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking, pumping,
pouring, dumping, emptying, injection, deposit, disposal, discharge, dispersal,
leaching or migration on or into the indoor or outdoor environment or into or
out of any property.
"Remedial Action" means all actions, including without limitation
any capital expenditures, required or necessary to (i) clean up, remove, treat
or in any other way address any Hazardous Material; (ii) prevent the Release or
threat of Release, or minimize the further Release, of any Hazardous Material so
it does not migrate or endanger public health or the environment; (iii) perform
pre-remedial studies and investigations or post-remedial monitoring and care; or
(iv) bring facilities on any property owned or leased by the Borrower or any of
its Subsidiaries into compliance with all Environmental Laws.
"Required Lenders" means, at any time, Lenders having Revolving
Credit Exposures and unused Commitments representing at least 66-2/3% of the sum
of the total Revolving Credit Exposures and unused Commitments at such time.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any ownership
interests in the Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such ownership interests in the Borrower or any option,
warrant or other right to acquire any such shares of capital stock of the
Borrower.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure and Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.01.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Governmental Authority to which the Administrative Agent is
subject, with respect to the Adjusted LIBO Rate, for Eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
17
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute Eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent.
EDR is a Subsidiary of the Parent.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means JPMorgan Chase Bank, N.A., in its capacity
as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Tangible Net Worth" shall mean total assets (without deduction for
accumulated depreciation) less (1) all intangibles and (2) all liabilities
(including contingent and indirect liabilities), all determined in accordance
with GAAP. The term "intangibles" shall include, without limitation, (i)
deferred charges, and (ii) the aggregate of all amounts appearing on the assets
side of any such balance sheet for franchises, licenses, permits, patents,
patent applications, copyrights, trademarks, trade names, goodwill, treasury
stock, experimental or organizational expenses and other like intangibles. The
term "liabilities" shall include, without limitation, (i) Indebtedness secured
by Liens on Property of the Person with respect to which Tangible Net Worth is
being computed whether or not such Person is liable for the payment thereof,
(ii) deferred liabilities, and (iii) Capital Lease Obligations. Tangible Net
Worth shall be calculated on a consolidated basis in accordance with GAAP.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Title Instruments" means true and correct copies of all instruments
of record in the Office of the County Clerk, the Real Property Records or of any
other Governmental Authority affecting title to all or any part of the Mortgaged
Properties, including but not limited
18
to those (if any) which impose restrictive covenants, easements, rights-of-way
or other encumbrances on all or any part of the Mortgaged Properties.
"Title Insurance Policy" means, collectively, the policies of title
insurance in the aggregate face amounts equal to the aggregate Revolving Loan
Commitment, issued in favor of the Administrative Agent by a title insurance
company satisfactory to the Administrative Agent and insuring that title to the
Mortgaged Properties is vested in Borrower, free and clear of any Lien,
objection, exception or requirement, and that each Deed of Trust creates a valid
first and prior lien on all the Mortgaged Properties, subject only to the
Permitted Encumbrances and such other exceptions as may be approved in writing
by the Administrative Agent. The Title Insurance Policy shall include such
provisions or endorsements as necessary to provide coverage on a revolving
credit basis.
"Total Asset Value" means the sum of (without duplication) (a) the
aggregate Value of all of Borrower's and its Subsidiaries' Real Property, plus
(b) the amount of any cash and cash equivalents, excluding tenant security and
other restricted deposits of the Borrower and its Subsidiaries. Total Asset
Value shall be calculated on a consolidated basis in accordance with GAAP.
"Total Leverage Ratio" shall mean the ratio (expressed as a
percentage) of (a) the Borrower's Indebtedness plus the Parent's Indebtedness to
(b) Total Asset Value.
"Transactions" means the execution, delivery and performance by the
Credit Parties of the Loan Documents, the borrowing of Loans, the use of the
proceeds thereof and the issuance of Letters of Credit hereunder.
"Type," when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Unconsolidated Affiliate" means, without duplication, in respect of
any Person, any other Person (other than a Person whose stock is traded on a
national trading exchange) in whom such Person holds a voting equity or
ownership interest and whose financial results would not be consolidated under
GAAP with the financial results of such Person on the consolidated financial
statements of such Person.
"Value" means the sum of the following:
(a) for Real Property that is not in the Pool and that Borrower or a
Subsidiary of Borrower has owned for all of the immediately preceding four (4)
calendar quarters, the result of dividing (i) the aggregate Net Operating Income
of the subject property based on the immediately preceding four (4) calendar
quarters, less the Capital Expenditure Reserve for such property, by (ii) eight
and one-fourth percent (8.25%); plus
19
(b) for Real Property that is not in the Pool and that Borrower or a
Subsidiary of Borrower has not owned for all of the immediately preceding four
(4) calendar quarters, the Historical Value of the subject property; plus
(c) for Real Property that is in the Pool, the aggregate Pool Value;
plus
(d) for Real Property that is Assets Under Development or
undeveloped land, the Historical Value of the subject property.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type (e.g., a
"Eurodollar Revolving Loan"). Borrowings also may be classified and referred to
by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurodollar
Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include," "includes," and "including"
shall be deemed to be followed by the phrase "without limitation." The word
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein," "hereof," and
"hereunder," and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights. All references to the Borrower shall be deemed to be references
to all Persons constituting the Borrower or each of them (whichever the context
requires) and the obligations of such Persons under this Agreement and the other
Loan Documents shall be joint and several as they relate to the Borrower.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation
20
of such provision (or if the Administrative Agent notifies the Borrower that the
Required Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in
GAAP or in the application thereof, then such provision shall be interpreted on
the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments.
Subject to the terms and conditions set forth herein, each Lender agrees
to make Revolving Loans to the Borrower from time to time during the
Availability Period in an aggregate principal amount that will not result in (i)
such Lender's Revolving Credit Exposure exceeding such Lender's Commitment or
(ii) the sum of the total Revolving Credit Exposures exceeding the total Maximum
Loan Available Amount; provided however, that no Lender shall be obligated to
make a Revolving Loan in excess of such Lender's Applicable Percentage of the
difference between the Maximum Loan Available Amount and the Revolving Credit
Exposure. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings.
(a) Each Revolving Loan shall be made as part of a Borrowing consisting of
Revolving Loans made by the Lenders ratably in accordance with their respective
Commitments. The failure of any Lender to make any Loan required to be made by
it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, each Revolving Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at
its option may make any Eurodollar Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise
of such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $100,000 and not less than $1,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $100,000 and not less than $1,000,000,
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e). Each Swingline Loan shall be in an amount that is an integral multiple
of $100,000 and not less than $1,000,000. Borrowings of more than one Type and
Class may be outstanding at
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the same time; provided that there shall not at any time be more than a total of
six (6) Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
Borrowing, EDR (on behalf of the Borrower) shall notify the Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 12:00 noon, Houston, Texas time, three Business Days before the date
of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
12:00 noon, Houston, Texas time, one Business Day before the date of the
proposed Borrowing; provided that any such notice of an ABR Borrowing to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.05(e) may
be given not later than 11:00 a.m., Houston, Texas time, on the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in the form of Exhibit E
attached hereto and hereby made a part hereof and signed by EDR, on behalf of
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the Interest Period to
be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
If no election as to the Type of Revolving Borrowing is specified in the
Borrowing Request, then the requested Revolving Borrowing shall be an ABR
Borrowing. If no Interest Period is specified with respect to any requested
Eurodollar Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month's duration, in the case of a Eurodollar Borrowing.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Swingline.
(a) Subject to the terms and conditions set forth herein, the Swingline
Lender agrees to make Swingline Loans to the Borrower from time to time during
the Availability Period, in an
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aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$10,000,000.00 or (ii) the sum of the total Revolving Credit Exposures exceeding
the total Maximum Loan Available Amount; provided that the Swingline Lender
shall not be required to make a Swingline Loan to refinance an outstanding
Swingline Loan. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 2:00 p.m., Houston, Texas time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e), by remittance to the Issuing Bank) by 4:00 p.m.,
Houston, Texas time, on the requested date of such Swingline Loan.
The Swingline Lender may by written notice given to the Administrative Agent not
later than 10:00 a.m., Houston, Texas time, on any Business Day require the
Lenders to acquire participations on such Business Day in all or a portion of
the Swingline Loans outstanding. Such notice shall specify the aggregate amount
of Swingline Loans in which Lenders will participate. Promptly upon receipt of
such notice, the Administrative Agent will give notice thereof to each Lender,
specifying in such notice such Lender's Applicable Percentage of such Swingline
Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Administrative Agent, for the
account of the Swingline Lender, such Lender's Applicable Percentage of such
Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation
to acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each Lender
shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Swingline Lender the amounts so received by it
from the Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that
shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear; provided that any such payment so
remitted shall be repaid to the Swingline Lender or to the Administrative Agent,
as applicable, if and to the extent such
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payment is required to be refunded to the Borrower for any reason. The purchase
of participations in a Swingline Loan pursuant to this paragraph shall not
relieve the Borrower of any default in the payment thereof.
SECTION 2.05. Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein, the
Borrower may request the issuance of Letters of Credit for its own account in a
form reasonably acceptable to the Administrative Agent and the Issuing Bank, at
any time and from time to time during the Availability Period. In the event of
any inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application or other
agreement submitted by the Borrower to, or entered into by the Borrower with,
the Issuing Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower shall hand deliver
or telecopy (or transmit by electronic communication, if arrangements for doing
so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Bank, the Borrower also shall submit a
letter of credit application on the Issuing Bank's standard form in connection
with any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the LC Exposure shall not exceed $10,000,000, (ii) the total
Revolving Credit Exposures shall not exceed the total Maximum Loan Available
Amount, and (iii) the face amount of the subject Letter of Credit shall not be
less than $100,000.
(c) Expiration Date. Each Letter of Credit shall expire not later than the
close of business on the date that is thirty (30) days prior to the Maturity
Date.
(d) Participations. By the issuance of a Letter of Credit (or an amendment
to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby
grants to each Lender, and each Lender hereby acquires from the Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Lender's Applicable Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Borrower on the
date due as provided in paragraph (e) of this Section, or of
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any reimbursement payment required to be refunded to the Borrower for any
reason. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement
by paying to the Administrative Agent an amount equal to such LC Disbursement
not later than 12:00 noon, Houston, Texas time, on the Business Day that such LC
Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., Houston, Texas time, on such date, or, if such
notice has not been received by the Borrower prior to such time on such date,
then not later than 12:00 noon, Houston, Texas time, on (i) the Business Day
that the Borrower receives such notice, if such notice is received prior to
10:00 a.m., Houston, Texas time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that
the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 that such payment be financed with an
ABR Revolving Borrowing or Swingline Loan in an equivalent amount and, to the
extent so financed, the Borrower's obligation to make such payment shall be
discharged and replaced by the resulting ABR Revolving Borrowing or Swingline
Loan. If the Borrower fails to make such payment when due, the Administrative
Agent shall notify each Lender of the applicable LC Disbursement, the payment
then due from the Borrower in respect thereof and such Lender's Applicable
Percentage thereof. Promptly following receipt of such notice, each Lender shall
pay to the Administrative Agent its Applicable Percentage of the payment then
due from the Borrower, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Issuing Bank the amounts so received by it from
the Lenders. Promptly following receipt by the Administrative Agent of any
payment from the Borrower pursuant to this paragraph, the Administrative Agent
shall distribute such payment to the Issuing Bank or, to the extent that Lenders
have made payments pursuant to this paragraph to reimburse the Issuing Bank,
then to such Lenders and the Issuing Bank as their interests may appear. Any
payment made by a Lender pursuant to this paragraph to reimburse the Issuing
Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a
Swingline Loan as contemplated above) shall not constitute a Loan and shall not
relieve the Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the
25
Issuing Bank under a Letter of Credit against presentation of a draft or other
document that does not comply with the terms of such Letter of Credit, or (iv)
any other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. Neither the Administrative Agent, the Lenders
nor the Issuing Bank, nor any of their Related Parties, shall have any liability
or responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Bank; provided that the foregoing shall
not be construed to excuse the Issuing Bank from liability to the Borrower to
the extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Bank's
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or willful
misconduct on the part of the Issuing Bank, the Issuing Bank shall be deemed to
have exercised care in each such determination. In furtherance of the foregoing
and without limiting the generality thereof, the parties agree that, with
respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may, in its
sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any information to the
contrary, or refuse to accept and make payment upon such documents if such
documents are not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy) of
such demand for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve the Borrower of its obligation to reimburse the
Issuing Bank and the Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the Borrower shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the Borrower reimburses such LC Disbursement, at
the rate per annum then applicable to ABR Revolving Loans; provided that, if the
Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph
(e) of this Section, then Section 2.12(c) shall apply. Interest accrued pursuant
to this paragraph shall be for the account of the Issuing Bank, except that
interest accrued on and after the date of payment by any Lender pursuant to
paragraph (e) of this Section to reimburse the Issuing Bank shall be for the
account of such Lender to the extent of such payment.
26
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at
any time by written agreement among the Borrower, the Administrative Agent, the
replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent
shall notify the Lenders of any such replacement of the Issuing Bank. At the
time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.11(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters
of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Borrower
described in clause (g) or (h) of Article VII. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 51% of the total LC Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.
SECTION 2.06. Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 12:00
noon, Houston, Texas time, to the account of the Administrative Agent most
recently designated by it for such purpose by
27
notice to the Lenders; provided that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in Houston,
Texas and designated by the Borrower in the applicable Borrowing Request;
provided that ABR Revolving Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to the corresponding Loan made to the Borrower. If
such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections.
(a) Each Revolving Borrowing initially shall be of the Type specified in
the applicable Borrowing Request and, in the case of a Eurodollar Revolving
Borrowing, shall have an initial Interest Period as specified in such Borrowing
Request. Thereafter, the Borrower may elect to convert such Borrowing to a
different Type or to continue such Borrowing and, in the case of a Eurodollar
Revolving Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing. This Section shall not apply to Swingline Loans, which may not be
converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in the form of a Borrowing Request (with proper election made for an
interest rate election only) and signed by the Borrower.
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(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to clauses (iii) and (iv)
below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Revolving Borrowing may
be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto.
SECTION 2.08. Termination, Reduction and Increase of Commitments.
(a) Unless previously terminated by the Administrative Agent or Borrower
in accordance with this Agreement, the Commitments shall terminate on the
Maturity Date.
(b) The Borrower may only reduce the Commitments without the prior written
consent of the Administrative Agent and all of the Lenders in the following
circumstances: the Borrower may from time to time prior to January 31, 2008
reduce the Commitments, provided that each reduction in the Commitments shall be
in an amount that is at least $5,000,000 and an integral multiple of $500,000,
and the total Commitments may not be reduced to less than $37,500,000 unless the
Commitments are reduced to zero and terminated. The Borrower shall
29
not reduce the Commitments if, after giving effect to any concurrent prepayment
of the Loans in accordance with Section 2.10, the total Revolving Credit
Exposures would exceed the Maximum Loan Available Amount as reduced. After any
reduction in the Commitments, the Borrower's option to increase the Commitments
provided in Section 2.08(d) shall terminate.
(c) The Borrower shall notify the Administrative Agent of any election to
reduce the Commitments under Section 2.08(b) at least three (3) Business Days
prior to the effective date of such reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant to this Section shall be irrevocable.
Any reduction of the Commitments shall be permanent. Each reduction in the
Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments.
(d) So long as the Borrower is not then in Default, the Borrower may,
prior to January 31, 2008, request that the Commitments be increased, so long as
(a) each increase is in a minimum amount of $15,000,000.00 (or such smaller
amount as the Administrative Agent may approve), (b) the Borrower has not
previously reduced the Commitments, and (c) the aggregate Commitments do not
exceed $125,000,000.00 (the "Maximum Commitment"). If the Borrower requests that
the total Commitments be increased, the Administrative Agent shall use its best
efforts to obtain increased or additional commitments up to the Maximum
Commitment, and to do so the Administrative Agent may obtain additional lenders
of its choice (and approved by Borrower, such approval not to be unreasonably
withheld or delayed), and without the necessity of approval from any of the
Lenders. The Borrower and each other Credit Party shall execute an amendment to
this Agreement, additional Notes and other documents as the Administrative Agent
may reasonably require to evidence the increase of the Commitments, the addition
of new projects as Mortgaged Properties, if applicable, and the admission of
additional Persons as Lenders, if necessary.
SECTION 2.09. Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan on the Maturity Date, and (ii) to the Swingline
Lender the then unpaid principal amount of each Swingline Loan on the earlier of
the Maturity Date and the first date after such Swingline Loan is made that is
five (5) Business Days after such Swingline Loan is made; provided that on each
date that a Revolving Borrowing is made, the Borrower shall repay all Swingline
Loans then outstanding. The Loans shall be evidenced by the Notes.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due
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and payable from the Borrower to each Lender hereunder and (iii) the amount of
any sum received by the Administrative Agent hereunder for the account of the
Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
SECTION 2.10. Prepayment of Loans.
(a) The Borrower shall have the right at any time and from time to time to
prepay, without penalty, any Borrowing in whole or in part, subject to prior
notice in accordance with paragraph (b) of this Section, and subject to Section
2.15, if applicable.
(b) The Borrower shall notify the Administrative Agent (and, in the case
of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed
by telecopy) of any prepayment hereunder (i) in the case of prepayment of a
Eurodollar Revolving Borrowing, not later than 11:00 a.m., Houston, Texas time,
three (3) Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., Houston,
Texas time, one Business Day before the date of prepayment, or (iii) in the case
of prepayment of a Swingline Loan, not later than 12:00 noon, Houston, Texas
time, on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing shall be in an amount that is an integral multiple of $100,000 and not
less than $500,000. Each prepayment of a Revolving Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.12.
(c) In connection with the prepayment of any Loan prior to the expiration
of the Interest Period applicable thereto, the Borrower shall also pay any
applicable expenses pursuant to Section 2.15.
(d) Amounts to be applied to the prepayment of Loans pursuant to any of
the preceding subsections of this Section shall be applied, first, to reduce
outstanding ABR Loans and next, to the extent of any remaining balance, to
reduce outstanding Eurodollar Loans. Each such prepayment shall be applied to
prepay ratably the Loans of the Lender.
(e) If at any time the total Revolving Credit Exposure of the Lenders
exceeds the then effective Maximum Loan Available Amount, the Borrower shall
prepay the Loans in an amount equal to such excess within one (1) Business Day
after such occurrence.
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SECTION 2.11. Fees.
(a) The Borrower agrees to pay to the Administrative Agent for the account
of each Lender a facility fee, which shall accrue at the following rates on the
average daily unused amount of the Commitment of such Lender during the period
from and including the date of this Agreement to, but excluding, the date on
which such Commitment terminates:
Whenever and for so long as the ratio of the aggregate unpaid principal
balance of the Loans (including Swingline Loans) to the aggregate amount
of the Lenders' Commitments is (i) less than fifty percent (50%), then
0.25% per annum, and (ii) equal to or greater than fifty percent (50%),
then 0.20% per annum.
Accrued facility fees shall be payable in arrears on the last day of
March, June, September and December of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur after the date
hereof; provided that any facility fees accruing after the date on which the
Commitments terminate shall be payable on demand. All facility fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at the Applicable Rate provided for
Eurodollar Revolving Loans on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the date of this Agreement
to but excluding the later of the date on which such Lender's Commitment
terminates and the date on which such Lender ceases to have any LC Exposure, and
(ii) to the Issuing Bank a fronting fee, in the amount of 0.125% of the face
amount of each Letter of Credit (but not less than $1,000.00 for each Letter of
Credit). Participation fees accrued through and including the last day of March,
June, September and December of each year shall be payable on the third Business
Day following such last day, commencing on the first such date to occur after
the date of this Agreement; provided that all such fees shall be payable on the
date on which the Commitments terminate and any such fees accruing after the
date on which the Commitments terminate shall be payable on demand. Fronting
fees shall be payable in full in advance on the date of the issuance, or renewal
or extension of each Letter of Credit, and are not refundable. Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be payable within
10 days after demand. All participation fees and fronting fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable
32
to it) for distribution, in the case of facility fees and participation fees, to
the Lenders. Fees paid shall not be refundable under any circumstances.
(e) In the event that the Maturity Date is extended in accordance with the
terms of Section 2.19, the Borrower agrees to pay to the Administrative Agent
for the account of each Lender an extension fee equal to 0.20% of the aggregate
Revolving Credit Exposure on the first effective day of the extension.
SECTION 2.12. Interest.
(a) The Loans comprising each ABR Borrowing (including each Swingline
Loan) shall bear interest at the lesser of (x) the Alternate Base Rate plus the
Applicable Rate, or (y) the Maximum Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at
the lesser of (a) the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Rate, or (b) the Maximum Rate.
(c) Notwithstanding the foregoing, (A) if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, the lesser
of (x) 3% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section, or (y) the Maximum Rate, or (ii) in the
case of any other amount, the lesser of (x) 3% plus the rate applicable to ABR
Loans as provided in paragraph (a) of this Section, or (y) the Maximum Rate; and
(B) after the occurrence of any Event of Default, at the option of the
Administrative Agent, or if the Administrative Agent is directed in writing by
the Required Lenders to do so, the Loan shall bear interest at a rate per annum
equal to the lesser of (x) 3% plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section, or (y) the Maximum Rate.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to
paragraph (c) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360
days and twelve (12) 30-day months, and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall
be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
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SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that (i)
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period
will not adequately and fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included in such Borrowing for
such Interest Period and (ii) such fact is generally applicable to its loans of
this type to similar borrowers, as evidenced by a certification from such
Lenders;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, and (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing; provided that if
the circumstances giving rise to such notice affect only one Type of Borrowings,
then the other Type of Borrowings shall be permitted.
SECTION 2.14. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement reflected
in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition (other than one relating to Excluded Taxes)
affecting this Agreement or Eurodollar Loans made by such Lender or any Letter
of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding
34
company, if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the Issuing Bank, to a level below that which such Lender or
the Issuing Bank or such Lender's or the Issuing Bank's holding company could
have achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Bank's policies and the policies of such Lender's or the
Issuing Bank's holding company with respect to capital adequacy), then from time
to time the Borrower will pay to such Lender or the Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Revolving Loan on the date specified in any notice delivered pursuant
hereto (regardless of whether such notice may be revoked under Section 2.10(b)),
or (d) the assignment of any Eurodollar Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.18, then, in any such event, the Borrower shall compensate
each Lender for the loss, cost and expense attributable to such event. In the
case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be
deemed to include an amount determined by such Lender to be the excess, if any,
of (i) the amount of interest which would have accrued on the principal amount
of such Loan had such event not occurred, at the Adjusted LIBO Rate that would
have been applicable to such Loan, for the period from the date of such event to
the last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest which would
accrue on such principal amount for such period at the interest rate which such
Lender would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period
35
from other banks in the Eurodollar market. A certificate of any Lender setting
forth any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.16. Taxes.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(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) the Administrative Agent, Lender or Issuing Bank (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 and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender and
the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or the Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law or
reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate.
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SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.14, 2.15 or 2.16, or
otherwise) prior to 1:00 p.m., Houston, Texas time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxx, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons
entitled thereto. If the Administrative Agent receives a payment for the account
of a Lender prior to 1:00 p.m., Houston, Texas time, such payment must be
delivered to the Lender on the same day and if it is not so delivered due to the
fault of the Administrative Agent, the Administrative Agent shall pay to the
Lender entitled to the payment interest thereon for each day after payment
should have been received by the Lender pursuant hereto until the Lender
receives payment, at the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation. If any payment hereunder shall be due on a day that
is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of
37
such recovery, without interest, and (ii) the provisions of this paragraph shall
not be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.05(d) or (e), 2.06(b) or 2.17(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) Each Lender and the Issuing Bank will notify the Borrower of any event
occurring after the date of this Agreement which will entitle such Person to
compensation pursuant to Sections 2.12 and 2.14 as promptly as practicable after
it obtains knowledge thereof and determines to request such compensation,
provided that such Person shall not be liable for the failure to provide such
notice. If any Lender or the Issuing Bank requests compensation under Section
2.12, or if the Borrower is required to pay any additional amount to any such
Person or any Governmental Authority for the account of any Lender pursuant to
Section 2.14, then such Lender or the Issuing bank shall use reasonable efforts
to avoid or minimize the amounts payable, including, without limitation, the
designation of a different lending office for funding or booking its Loans and
Letters of Credit hereunder or the assignment of its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender or the Issuing Bank, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.12 or 2.14, as the
case may be, in the future and (ii) would not subject such Lender or the Issuing
Bank to any unreimbursed cost or expense and would not otherwise be
38
disadvantageous to such Lender or the Issuing Bank. The Borrower hereby agrees
to pay all reasonable and documented costs and expenses incurred by any Lender
or the Issuing Bank in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.12, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.14,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Commitment is being assigned, the Issuing Bank), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts), and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.12 or payments required
to be made pursuant to Section 2.14, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
SECTION 2.19. Extension.
(a) Subject to the provisions of this Section, the Borrower may extend the
Maturity Date of the Revolving Loans one (1) time for one (1) year by giving
written request therefor (the "Extension Request") to the Administrative Agent
of the Borrower's desire to extend such term, at least sixty (60), but no more
than one hundred twenty (120), days prior to the Maturity Date.
(b) If the Maturity Date is extended, all of the other terms and
conditions of this Agreement and the other Loan Documents (including interest
payment dates) shall remain in full force and effect and unmodified, except as
expressly provided for herein. The extension of the Maturity Date is subject to
the satisfaction of each of the following additional conditions:
(i) The representations and warranties of each Credit Party set
forth in this Agreement or any other Loan Document to which such Credit Party is
a signatory shall be true and correct in all material respects on the date that
the Extension Request is given to the Administrative Agent and on the first day
of the extension (except to the extent such representations and warranties
relate to a specified date);
(ii) no Default or Event of Default has occurred and is continuing
on the date on which the Borrower gives the Administrative Agent the Extension
Request or on the first day of the extension;
39
(iii) the Borrower shall be in compliance with all of the financial
covenants set forth in Article V hereof both on the date on which the Extension
Request is given to the Administrative Agent and on the first day of the
extension;
(iv) the Borrower shall have paid to the Administrative Agent all
amounts then due and payable to any of the Lenders, the Issuing Bank and the
Administrative Agent under the Loan Documents, including the extension fee
described in Section 2.11(e) hereof;
(v) the Borrower shall pay for any and all reasonable out-of-pocket
costs and expenses, including, reasonable attorneys' fees and disbursements,
incurred by the Administrative Agent in connection with or arising out of the
extension of the Maturity Date;
(vi) no change in the business, assets, management, operations or
financial condition of any Credit Party shall have occurred since the most
recent funding of any Loan, which change, in the judgment of the Administrative
Agent, will have or is reasonably likely to have a Material Adverse Effect;
(vii) the Borrower shall execute and deliver to Administrative Agent
such other documents, financial statements, instruments, certificates, opinions
of counsel, Title Insurance Policy endorsements, reports, or amendments to the
Loan Documents as the Administrative Agent shall reasonably request regarding
the Credit Parties as shall be necessary to effect such extension; and
(viii) a written agreement evidencing the extension is signed by the
Administrative Agent, the Lenders, the Credit Parties and any other Person to be
charged with compliance therewith, which agreement such parties agree to execute
if the extension conditions set forth above have been satisfied.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders, the Administrative
Agent and the Issuing Bank that:
SECTION 3.01. Organization; Powers. Each Credit Party is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions are within
the corporate, partnership or limited liability company powers (as applicable)
of the respective Credit Parties and have been duly authorized by all necessary
corporate, partnership or limited liability company action. This Agreement and
the Loan Documents have been duly executed and delivered by each Credit Party
which is a party thereto and constitute the legal, valid and binding
40
obligation of each such Person, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a)
do not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, (b) will not violate any applicable
law or regulation or the charter, by-laws or other organizational documents of
any Credit Party or any of the Borrower's Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon any Credit Party or any of
the Borrower's Subsidiaries or its assets, or give rise to a right thereunder to
require any payment to be made by any Credit Party or any of the Borrower's
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of any Credit Party or any of the Borrower's Subsidiaries, except
pursuant to the Deed of Trust.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to the Lenders financial
statements (i) as of and for the fiscal year ended December 31, 2003 and the
fiscal quarter ended September 30, 2004, reported on by Deloitte & Touche, LLP,
independent public accountants, for the predecessor entities for EDR, EDR Athens
I, LLC, EDR Tallahassee I, LLC, and EDR C Station, LLC, and (ii) combined
statements of certain revenues and expenses for the fiscal quarter and the
portion of the fiscal year ended September 30, 2004, for the predecessor
entities for EDR Tallahassee Limited Partnership, EDR Xxxxxx Limited Partnership
and EDR Xxxxxxxx Limited Partnership. Such financial statements present fairly,
in all material respects, the financial position and results of operations and
cash flows of the Borrower and its consolidated Subsidiaries as of such dates
and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred
to in clause (ii) above.
(b) Since December 22, 2004, no event has occurred which could reasonably
be expected to have a Material Adverse Effect.
SECTION 3.05. Properties.
(a) Subject to Liens permitted by Section 6.02, each of the Borrower and
its Subsidiaries has title to, or valid leasehold interests in, all its real and
personal property material to its business, except for minor defects in title
that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to use,
all trademarks, tradenames, copyrights, patents and other intellectual property
material to the Borrower's business, and the use thereof by the Borrower and its
Subsidiaries does not infringe
41
upon the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
(c) All components of all improvements included within the Real Property
owned or leased, as lessee, by any Credit Party, including, without limitation,
the roofs and structural elements thereof and the heating, ventilation, air
conditioning, plumbing, electrical, mechanical, sewer, waste water, storm water,
paving and parking equipment, systems and facilities included therein, are in
good working order and repair, subject to such exceptions which are not
reasonably likely to have, in the aggregate, a Material Adverse Effect. All
water, gas, electrical, steam, compressed air, telecommunication, sanitary and
storm sewage lines and systems and other similar systems serving the Real
Property owned or leased by any Credit Party are installed and operating and are
sufficient to enable the Real Property to continue to be used and operated in
the manner currently being used and operated, and no Credit Party has any
knowledge of any factor or condition that reasonably could be expected to result
in the termination or material impairment of the furnishing thereof, subject to
such exceptions which are not likely to have, in the aggregate, a Material
Adverse Effect. No improvement or portion thereof is dependent for its access,
operation or utility on any land, building or other improvement not included in
the Real Property owned or leased by the Borrower or its Subsidiaries, other
than for access provided pursuant to a recorded easement or other right of way
establishing the right of such access subject to such exceptions which are not
likely to have, in the aggregate, a Material Adverse Effect.
(d) All franchises, licenses, authorizations, rights of use, governmental
approvals and permits (including all certificates of occupancy and building
permits) required to have been issued by Governmental Authority to enable all
Real Property owned or leased by Borrower or any of its Subsidiaries to be
operated as then being operated have been lawfully issued and are in full force
and effect, other than those which the failure to obtain in the aggregate could
not be reasonably expected to have a Material Adverse Effect. No Credit Party is
in violation of the terms or conditions of any such franchises, licenses,
authorizations, rights of use, governmental approvals and permits, which
violation would reasonably be expected to have a Material Adverse Effect.
(e) None of the Credit Parties has received any notice or has any
knowledge, of any pending, threatened or contemplated condemnation proceeding
affecting any Real Property owned or leased by Borrower or any of its
Subsidiaries or any part thereof, or any proposed termination or impairment of
any parking at any such owned or leased Real Property or of any sale or other
disposition of any Real Property owned or leased by Borrower or any of its
Subsidiaries or any part thereof in lieu of condemnation, which in the
aggregate, are reasonably likely to have a Material Adverse Effect.
(f) Except for events or conditions not reasonably likely to have, in the
aggregate, a Material Adverse Effect, (i) no portion of any Real Property owned
or leased by Borrower or any of its Subsidiaries has suffered any material
damage by fire or other casualty loss which has not heretofore been completely
repaired and restored to its condition prior to such casualty, and (ii) no
portion of any Real Property owned or leased by Borrower or any of its
Subsidiaries is located in a special flood hazard area as designated by any
federal Government Authorities or any area
42
identified by the insurance industry or other experts acceptable to the
Administrative Agent as an area that is a high probable earthquake or seismic
area, except as set forth on Schedule 3.05(f).
(g) There are no Persons operating or managing any Real Property other
than the Borrower and the Management Company pursuant to (i) the management
agreements delivered to Administrative Agent as of the Effective Date, and (ii)
such other management agreements in form and substance reasonably satisfactory
to the Administrative Agent. To Borrower's knowledge, except as disclosed on the
Current Survey no improvement or portion thereof, or any other part of any Real
Property, is dependent for its access, operation or utility on any land,
building or other improvement not included in the Real Property owned or leased
by the Borrower or its Subsidiaries, other than for access provided pursuant to
a recorded easement or other right of way establishing the right of such access.
SECTION 3.06. Intellectual Property. To the knowledge of each Credit
Party, such Credit Party owns, or is licensed to use, all trademarks, trade
names, copyrights, patents and other intellectual property material to its
business, and the use thereof by such Credit Party does not infringe upon the
rights of any other Person, except for any such infringements that, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. To the knowledge of each Credit Party, there are no material
slogans or other advertising devices, projects, processes, methods, substances,
parts or components, or other material now employed, or now contemplated to be
employed, by any Credit Party with respect to the operation of any Real
Property, and no claim or litigation regarding any slogan or advertising device,
project, process, method, substance, part or component or other material
employed, or now contemplated to be employed by any Credit Party, is pending or
threatened, the outcome of which could reasonably be expected to have a Material
Adverse Effect.
SECTION 3.07. Litigation and Environmental Matters.
(a) Except as set forth in Schedule 3.07 attached hereto, there are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting any Credit Party or any of the Borrower's Subsidiaries (i)
as to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect or (ii) that involve this
Agreement or the Transactions.
(b) Except with respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect :
(i) to the knowledge of the Credit Parties, all Real Property leased
or owned by Borrower or any of its Subsidiaries is free from contamination by
any Hazardous Material, except to the extent such contamination could not
reasonably be expected to cause a Material Adverse Effect;
(ii) to the knowledge of the Credit Parties, the operations of
Borrower and its Subsidiaries, and the operations at the Real Property leased or
owned by Borrower or any of its
43
Subsidiaries are in compliance with all applicable Environmental Laws, except to
the extent such noncompliance could not reasonably be expected to cause a
Material Adverse Effect;
(iii) neither the Borrower nor any of its Subsidiaries have known
liabilities with respect to Hazardous Materials and, to the knowledge of each
Credit Party, no facts or circumstances exist which could reasonably be expected
to give rise to liabilities with respect to Hazardous Materials, in either case,
except to the extent such liabilities could not reasonably be expected to have a
Material Adverse Effect;
(iv) (A) the Borrower and its Subsidiaries and all Real Property
owned or leased by Borrower or its Subsidiaries have all Environmental Permits
necessary for the operations at such Real Property and are in compliance with
such Environmental Permits; (B) there are no legal proceedings pending nor, to
the knowledge of any Credit Party, threatened to revoke, or alleging the
violation of, such Environmental Permits; and (C) none of the Credit Parties
have received any notice from any source to the effect that there is lacking any
Environmental Permit required in connection with the current use or operation of
any such properties, in each case, except to the extent the nonobtainment or
loss of an Environmental Permit could not reasonably be expected to have a
Material Adverse Effect;
(v) neither the Real Property currently leased or owned by Borrower
nor any of its Subsidiaries, nor, to the knowledge of any Credit Party, (x) any
predecessor of any Credit Party, nor (y) any of Credit Parties' Real Property
owned or leased in the past, nor (z) any owner of Real Property leased or
operated by Borrower or any of its Subsidiaries, are subject to any outstanding
written order or contract, including Environmental Liens, with any Governmental
Authority or other Person, or to any federal, state, local, foreign or
territorial investigation of which a Credit Party has been given notice
respecting (A) Environmental Laws, (B) Remedial Action, (C) any Environmental
Claim; or (D) the Release or threatened Release of any Hazardous Material, in
each case, except to the extent such written order, contract or investigation
could not reasonably be expected to have a Material Adverse Effect;
(vi) none of the Credit Parties are subject to any pending legal
proceeding alleging the violation of any Environmental Law nor, to the knowledge
of each Credit Party, are any such proceedings threatened, in either case,
except to the extent any such proceedings could not reasonably be expected to
have a Material Adverse Effect;
(vii) neither the Borrower nor any of its Subsidiaries nor, to the
knowledge of each Credit Party, any predecessor of any Credit Party, nor to the
knowledge of each Credit Party, any owner of Real Property leased by Borrower or
any of its Subsidiaries, have filed any notice under federal, state or local,
territorial or foreign law indicating past or present treatment, storage, or
disposal of or reporting a Release of Hazardous Material into the environment,
in each case, except to the extent such Release of Hazardous Material could not
reasonably be expected to have a Material Adverse Effect;
(viii) none of the operations of the Borrower or any of its
Subsidiaries or, to the knowledge of each Credit Party, of any owner of premises
currently leased by Borrower or any of its Subsidiaries or of any tenant of
premises currently leased from Borrower or any of its
44
Subsidiaries, involve or previously involved the generation, transportation,
treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R.
Part 261.3 (in effect as of the date of this Agreement) or any state, local,
territorial or foreign equivalent, in violation of Environmental Laws, except to
the extent the same could not readily be expected to have a Material Adverse
Effect; and
(ix) to the knowledge of the Credit Parties, there is not now, nor
has there been in the past (except, in all cases, to the extent the existence
thereof could not reasonably be expected to have a Material Adverse Effect), on,
in or under any Real Property leased or owned by Borrower or any of its
Subsidiaries, or any of their predecessors (A) any underground storage tanks or
surface tanks, dikes or impoundments (other than for surface water); (B) any
friable asbestos-containing materials; (C) any polychlorinated biphenyls; or (D)
any radioactive substances other than naturally occurring radioactive material.
SECTION 3.08. Compliance with Laws and Agreements. Each of the Credit
Parties is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.09. Investment and Holding Company Status. Neither any of the
Credit Parties nor any of the Borrower's Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.10. Taxes. Each Credit Party and each of the Borrower's
Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which such Person has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The Borrower does not have any Plans as of
the date hereof. As to any future Plan the present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) will not exceed the fair
market value of the assets of such Plan, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) will not exceed the fair market value of the assets of all such underfunded
Plans.
SECTION 3.12. Disclosure. The Borrower has disclosed or made available to
the Lenders all agreements, instruments and corporate or other restrictions to
which it, any other Credit Party, or any of its Subsidiaries is subject, and all
other matters known to it, that, in the
45
aggregate, could reasonably be expected to result in a Material Adverse Effect.
Neither the Confidential Information Memorandum dated January 2005 prepared by
the Administrative Agent in conjunction with the Borrower, nor any of the other
reports, financial statements, certificates or other information furnished by or
on behalf of the Borrower to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.13. Insurance. Borrower has provided to Administrative Agent an
insurance schedule which accurately sets forth, in all material respects, as of
the Effective Date all insurance policies and programs currently in effect with
respect to the assets and business of Borrower and its Subsidiaries, specifying
for each such policy and program, (i) the amount thereof, (ii) the risks insured
against thereby, (iii) the name of the insurer and each insured party
thereunder, (iv) the policy or other identification number thereof and (v) the
expiration date thereof. Such insurance policies and programs (or such other
similar policies as are permitted pursuant to Section 5.06) are currently in
full force and effect, and, together with payment by the insured of scheduled
deductible payments, are in amounts sufficient to cover the replacement value of
the respective assets of the Borrower and its Subsidiaries.
SECTION 3.14. Margin Regulations. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board), and no proceeds
of any Loan or Letter of Credit will be used to purchase or carry any margin
stock.
SECTION 3.15. Subsidiaries; REIT Qualification. As of the Effective Date,
the Borrower has only the Subsidiaries listed on Schedule 3.15 attached hereto.
The Borrower and each of the Borrower's Subsidiaries, other than Xxxxx & X'Xxxx
Education Services, Inc., is a "qualified REIT subsidiary" under Section 856 of
the Code.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans
and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each Credit Party either (i) a counterpart of this Agreement and all other Loan
Documents to which it is party signed on behalf of such party or (ii) written
evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of each such Loan
46
Document other than the Notes) that such party has signed a counterpart of the
Loan Documents, together with copies of all Loan Documents.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of Xxxxxx, Xxxxxxx & Xxxxxx, LLP, Reitler Xxxxx & Xxxxxxxxxx,
LLC, and Xxxxxxx, LLP, counsel for the Borrower and the Guarantor, and such
other counsel as the Administrative Agent may approve, covering such matters
relating to the Credit Parties, the Loan Documents or the Transactions as the
Required Lenders shall reasonably request. The Borrower hereby requests such
counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Credit Parties,
the authorization of the Transactions and any other legal matters relating to
the Credit Parties, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a Compliance Certificate,
dated the date of this Agreement and signed by a Financial Officer of EDR, in
form and substance satisfactory to the Administrative Agent.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrower hereunder.
(f) The Administrative Agent shall have received copies of all other Loan
Documents, and the Appraisal (which will be updated annually if requested by the
Administrative Agent or the Required Lenders), the Environmental Assessment, the
Title Insurance Policy and the Current Survey and such other due diligence
information as the Administrative Agent may require for each Mortgaged Property.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
SECTION 4.02. Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing, and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit, is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of each Credit Party set forth in
this Agreement or in any other Loan Document shall be true and correct on and as
of the date of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such Borrowing
or the issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default shall have occurred and be continuing.
47
(c) With respect to (i) any requested Borrowings, the Borrower shall have
complied with Section 2.03 or Section 2.04, as applicable, and (ii) the request
for the issuance, amendment, renewal or extension of any Letters of Credit, the
Borrower shall have complied with Section 2.05(b).
(d) The Administrative Agent shall have received a Compliance Certificate
signed by a Financial Officer of EDR.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
SECTION 5.01. Financial Statements; Ratings Change and Other Information.
The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 120 days after the end of each fiscal year of the Parent, the
Borrower's and the Parent's audited consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows as of the end of
and for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, all reported on by Deloitte & Touche LLP or other
independent public accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Parent and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Parent, the Borrower's and the Parent's
consolidated balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in comparative
form the figures for the corresponding period or periods of (or, in the case of
the balance sheet, as of the end of) the previous fiscal year, all certified by
one of its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Parent and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of
footnotes, and (ii) a property report with a list of all Real Property acquired
by the Borrower or any of its Subsidiaries since the last quarterly property
report and summary operating information for each project, including the Net
Operating Income of each property;
48
(c) concurrently with any delivery of financial statements under clause
(a) or (b) above, a certificate of a Financial Officer of EDR (the "Compliance
Certificate") in the form of Exhibit B attached hereto;
(d) promptly after the same become publicly available for Forms 10-K and
10-Q described below, and upon written request for items other than Forms 10-K
and 10-Q described below, copies of all periodic and other reports, proxy
statements and other materials filed by the Parent, the Borrower or any
Subsidiary with the Securities and Exchange Commission (including registration
statements and reports on Form 10-K, 10-Q and 8-K (or their equivalents)), or
any Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Parent or the Borrower to its shareholders generally, as the case may be;
(e) within thirty (30) days after the beginning of each fiscal year, a
current operating budget of the Borrower and its Subsidiaries (based on the
Borrower's good faith estimates and projections) for that fiscal year, including
projected sources and uses of funds (including dividend and debt payments); and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of any Credit
Party or any Subsidiary of the Borrower, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender may reasonably
request.
SECTION 5.02. Financial Tests. The Borrower shall have and maintain, on a
consolidated basis in accordance with GAAP:
(a) a Total Leverage Ratio no greater than sixty-five percent (65%) at all
times;
(b) commencing on the Measurement Date, an Interest Coverage Ratio of not
less than 2.00:1.00 at all times;
(c) commencing on the Measurement Date, a Fixed Charge Coverage Ratio of
not less than 1.50:1.00 at all times;
(d) a Tangible Net Worth of at least eighty-five percent (85%) of the
Borrower's Tangible Net Worth on the Effective Date, plus seventy-five percent
(75%) of the net proceeds (gross proceeds less reasonable and customary costs of
sale and issuance paid to Persons not Affiliates of any Credit Party) received
by the Borrower at any time from the issuance of stock of the Parent after the
date of this Agreement, at all times;
(e) the ratio of (i) the sum of the Borrower's Indebtedness and the
Parent's Indebtedness that bears interest at a varying rate of interest or that
does not have the interest rate effectively fixed pursuant to a Hedging
Agreement, to (ii) the sum of the Borrower's Indebtedness and the Parent's
Indebtedness, shall not exceed thirty percent (30%).
49
SECTION 5.03. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender written notice of the following promptly
after it becomes aware of same (unless specific time is set forth below):
(a) the occurrence of any Default;
(b) within five (5) Business Days after the filing or commencement of any
action, suit or proceeding by or before any arbitrator or Governmental Authority
against or affecting any Credit Party or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) within five (5) Business Days after the occurrence of any ERISA Event
that, alone or together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $10,000,000.00; and
(d) any other development that results in, or could reasonably be expected
to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of EDR setting forth the details
of the event or development requiring such notice and any action taken or
proposed to be taken with respect thereto.
At the Administrative Agent's option, after the happening of any of the events
listed in clauses (a), (b) or (d) above, the Administrative Agent may obtain, or
cause the Borrower to obtain, an updated Appraisal for the property giving rise
to such events, all at the Borrower's expense.
SECTION 5.04. Existence; Conduct of Business. The Borrower will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03.
SECTION 5.05. Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could result in a Material Adverse Effect before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.06. Maintenance of Properties; Insurance.
(a) The Borrower will, and will cause each of its Subsidiaries to, (i)
keep and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted, and (ii) maintain,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are set forth in the
50
schedule provided pursuant to Section 3.13, with Administrative Agent named as
loss payee and a beneficiary of such insurance on substantially similar policies
and programs as are acceptable to Administrative Agent.
(b) The Borrower shall maintain the following insurance coverages for each
of the Mortgaged Properties in the Pool:
(i) An all-risk policy of permanent property insurance insuring the
Mortgaged Property against all risks of any kind or character except those
permitted by the Administrative Agent in writing to be excluded from coverage
thereunder.
(ii) A boiler and machinery insurance policy covering loss or damage
to all portions of the Mortgaged Property comprised of air-conditioning and
heating systems, other pressure vessels, machinery, boilers or high pressure
piping.
(iii) An all-risk policy of insurance covering loss of earnings
and/or rents from the Mortgaged Property in the event that the Mortgaged
Property is not available for use or occupancy due to casualty, damage or
destruction required to be covered by the policies of insurance described in (i)
and (ii) above.
(iv) Commercial general liability, auto liability, umbrella or
excess liability and worker's compensation insurance against claims for bodily
injury, death or property damage occurring on, in or about the Mortgaged
Property in an amount and containing terms acceptable to the Administrative
Agent.
(v) Such other insurance against other insurable hazards, risks or
casualties which at the time are commonly insured against in the case of owners
and premises similarly situated, due regard being given to the financial
condition of the Borrower, the height and type of the Mortgaged Property, its
construction, location, use and occupancy.
(vi) All required insurance will be written on forms acceptable to
the Administrative Agent and by companies having a Best's Insurance Guide Rating
of not less than A or A+ and which are otherwise acceptable to the
Administrative Agent, and such insurance (other than third party liability
insurance) shall be written or endorsed so that all losses are payable to the
Administrative Agent, as Administrative Agent for the Lenders. The original
policies evidencing such insurance shall be delivered by the Borrower to the
Administrative Agent and held by the Administrative Agent, unless Administrative
Agent expressly consents to accept insurance certificates instead. Each such
policy shall expressly prohibit cancellation or modification of insurance
without thirty (30) days' written notice to the Administrative Agent. The
Borrower agrees to furnish due proof of payment of the premiums for all such
insurance to Administrative Agent promptly after each such payment is made and
in any case at least fifteen (15) days before payment becomes delinquent.
(c) The Borrower will pay and discharge all taxes, assessments,
maintenance charges, permit fees, impact fees, development fees, capital repair
charges, utility reservations and standby fees and all other similar impositions
of every kind and character charged, levied,
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assessed or imposed against any interest in any of the Mortgaged Property owned
by it, as they become payable and before they become delinquent. The Borrower
shall furnish receipts evidencing proof of such payment to the Administrative
Agent promptly after payment and before delinquency.
SECTION 5.07. Books and Records; Inspection Rights.
(a) The Borrower will, and will cause each of its Subsidiaries to, keep
proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and
activities.
(b) The Borrower will, and will cause each of its Subsidiaries to, permit
any representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice and subject to rights of tenants, to visit and inspect
its properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested.
SECTION 5.08. Compliance with Laws. The Borrower will, and will cause each
of its Subsidiaries to, comply with all laws, rules, regulations and orders of
any Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.09. Use of Proceeds and Letters of Credit. The proceeds of the
Loans will be used for acquisition, development and enhancement of Real
Property, debt refinancing, capital improvements and working capital. No part of
the proceeds of any Loan will be used, whether directly or indirectly, for
financing, funding or completing the hostile acquisition of publicly traded
Persons or for any purpose that entails a violation of any of the Regulations of
the Board, including Regulations G, U and X.
SECTION 5.10. Fiscal Year. Borrower shall maintain as its fiscal year the
twelve (12)-month period ending on December 31 of each year.
SECTION 5.11. Environmental Matters.
(a) Borrower shall comply and shall cause each of its Subsidiaries and
each Real Property owned or leased by such parties to comply in all material
respects with all applicable Environmental Laws currently or hereafter in
effect, except to the extent noncompliance could not reasonably be expected to
have a Material Adverse Effect.
(b) If the Administrative Agent or the Required Lenders at any time have a
reasonable basis to believe that there may be a material violation of any
Environmental Law related to any Real Property owned or leased by Borrower or
any of its Subsidiaries, or Real Property adjacent to such Real Property, which
could reasonably be expected to have a Material Adverse Effect, then Borrower
agrees, upon request from the Administrative Agent, to provide the
Administrative Agent, at the Borrower's expense, with such reports,
certificates, engineering studies or other written material or data as the
Administrative Agent or the Required Lenders
52
may reasonably require so as to reasonably satisfy the Administrative Agent and
the Required Lenders that any Credit Party or Real Property owned or leased by
them is in material compliance with all applicable Environmental Laws.
(c) Borrower shall, and shall cause each of its Subsidiaries to, take such
Remedial Action or other action as required by Environmental Law or any
Governmental Authority.
(d) If the Borrower fails to timely take, or to diligently and
expeditiously proceed to complete in a timely fashion, any action described in
this Section, the Administrative Agent may, after notice to the Borrower, in its
sole and absolute discretion, make advances or payments toward the performance
or satisfaction of the same, but shall in no event be under any obligation to do
so. All sums so advanced or paid by the Administrative Agent (including
reasonable counsel and consultant and investigation and laboratory fees and
expenses, and fines or other penalty payments) and all sums advanced or paid in
connection with any judicial or administrative investigation or proceeding
relating thereto, will become due and payable from the Borrower ten (10)
Business Days after demand, and shall bear interest at the rate for past due
interest provided in Section 2.12(c) from the date any such sums are so advanced
or paid by the Administrative Agent until the date any such sums are repaid by
the Borrower. Promptly upon request, the Borrower will execute and deliver such
instruments as the Administrative Agent may deem reasonably necessary to permit
the Administrative Agent to take any such action, and as the Administrative
Agent may require to secure all sums so advanced or paid by the Administrative
Agent. If a Lien is filed against the Mortgaged Property by any Governmental
Authority resulting from the need to expend or the actual expending of monies
arising from an action or omission, whether intentional or unintentional, of the
Borrower or for which any Borrower is responsible, resulting in the Releasing of
any Hazardous Material into the waters or onto land located within or without
the State where the Mortgaged Property is located, then the Borrower will,
within thirty (30) days from the date that the Borrower is first given notice
that such Lien has been placed against the Mortgaged Property (or within such
shorter period of time as may be specified by the Administrative Agent if such
Governmental Authority has commenced steps to cause the Mortgaged Property to be
sold pursuant to such Lien), either (i) pay the claim and remove the Lien, or
(ii) furnish a cash deposit, bond or such other security with respect thereto as
is satisfactory in all respects to the Administrative Agent and is sufficient to
effect a complete discharge of such Lien on the Mortgaged Property.
SECTION 5.12. Property Pool.
(a) The Borrower will at all times own (in fee simple title or through an
Eligible Ground Lease a pool (the "Pool") of Real Property assets that are
subject to a Deed of Trust and Environmental Indemnity and are Collateral and
that are not subject to a Lien in any manner, other than Permitted Encumbrances,
with an aggregate Pool Value equal to at least $50,000,000, with the following
characteristics:
(i) completed income-producing, first-class student housing
communities located in states in the United States of America other than Alaska
and Hawaii;
53
(ii) managed by the Borrower or its Subsidiary; provided however,
that for up to ninety (90) days after the date of this Agreement JPI Management
Services, L.P. may manage the property that it sold to Borrower subject to a
management agreement in form and substance satisfactory to the Administrative
Agent;
(iii) a final certificate of occupancy, or the local equivalent has
been issued by the appropriate Governmental Authority for all of the
improvements on the Real Property;
(iv) no material deferred maintenance and no capital improvements
are required to continue operating as a first-class student housing community,
as determined by an architectural or engineering report approved by the
Administrative Agent;
(v) (1) the Administrative Agent must have received Phase I
environmental reports from third-party independent consultants for each property
in, or to be added to, the Pool that do not disclose any adverse material
environmental conditions, (2) the Borrower must be able to make the
representations and warranties in Sections 3.05 and 3.07 as to each property in,
or to be added to, the Pool, (3) the Borrower must have provided a current
Survey, Title Insurance Policy, Financing Statement and all other documents
required for Collateral as the Administrative Agent may require (which will
include, at a minimum, proof of casualty and liability insurance complying with
this Agreement, architect's or engineer's inspection report, central and local
Uniform Commercial Code searches, Appraisal, current rent roll, purchase
agreement, recent photographs, last three years operating statements, a pro
forma operating statement, and a site visit by the Administrative Agent) and in
form and substance satisfactory to the Administrative Agent, and (4) the
Borrower must have joined in, and assumed all obligations of a "Borrower" under,
this Agreement and the other Loan Documents, and provided all of the items
required by Article IV (to the extent applicable), all in form and substance
satisfactory to the Administrative Agent; and
(vi) the property is otherwise approved by the Administrative Agent
and the Required Lenders, such approval not to be unreasonably withheld.
As of the Effective Date the Real Property assets included in the Pool are
listed on Schedule 5.12 attached hereto.
(b) Notwithstanding the foregoing, (i) there shall at all times be at
least four (4) separate Real Property assets in the Pool, and (ii) no single
property in the Pool shall have a Pool Value equal to or greater than 30% of the
aggregate Pool Value, except for the Jefferson Pointe project in Tallahassee,
Florida.
(c) If the Borrower requests inclusion of assets in the Pool that do not
meet the requirements of this Section, then such assets may only be included in
the Pool upon the prior written approval of the Administrative Agent and the
Required Lenders.
SECTION 5.13. Further Assurances. At any time upon the request of the
Administrative Agent, Borrower will, promptly and at its expense, execute,
acknowledge and deliver such further documents and perform such other acts and
things as the Administrative Agent may
54
reasonably request to evidence the Loans made hereunder and interest thereon in
accordance with the terms of this Agreement.
SECTION 5.14. Partial Releases. The Borrower may obtain the release of any
Mortgaged Property (the "Release Tract") from the liens and security interests
of the Loan Documents if it satisfies the following terms and conditions:
(a) No Event of Default is in existence, and the release of the Release
Tract will not cause there to be a Default. EDR will deliver to the
Administrative Agent a Compliance Certificate with pro forma information without
the Release Tract.
(b) The release will be for the complete Mortgaged Property constituting a
student housing community, and not for just a portion thereof.
(c) No less than forty-five (45) days prior to the date of the requested
release ("Partial Release Date"), the Borrower shall deliver to the
Administrative Agent a written request for such partial release (the "Release
Request").
(d) The Borrower shall provide the Administrative Agent with an
endorsement to the Title Insurance Policy, if required with respect to
interrelated Title Insurance Policies, and such other documents as may be
reasonably required by the Administrative Agent, to confirm that the liens and
security interests of the Loan Documents remain valid and prior liens against
the Mortgaged Properties (the "Remaining Projects").
(e) The Borrower shall pay all costs and expenses incurred by the
Administrative Agent in connection with such Partial Release, including, without
limitation, reasonable attorneys' fees, recording fees and any title policy
endorsement fees.
(f) The Administrative Agent shall have received satisfactory evidence
that each of the Remaining Projects which is adjoining or which shares access or
easements with the Release Tract, if any, has adequate access and joint use
easements, that there are no encroachments from or on to the Release Tract, and
that there is no inability to use required facilities or amenities, which
evidence may be provided by a Current Survey of the affected Remaining Projects.
Subject to the satisfaction of the provisions of this Section, any
Borrower other than EDR owning the Release Tract which has no other ownership
interest in any of the Remaining Projects, will be released from further payment
and performance of the Loans on the Partial Release Date, other than obligations
under the Environmental Indemnity.
SECTION 5.15. Parent Covenants. The Parent will:
(a) maintain at least one class of common shares of the Parent having
trading privileges on the New York Stock Exchange;
(b) own, directly or indirectly, all of the general partner interests in
EDR and at least fifty-one percent (51%) of (i) the shares of beneficial
interest of EDR, and (ii) each class of security issued by EDR with the power to
select the general partner of EDR;
55
(c) maintain management and control of EDR;
(d) conduct substantially all of its operations through EDR and one or
more of EDR's Subsidiaries;
(e) comply with all Legal Requirements to maintain, and will at all times
elect, qualify as and maintain, its status as a real estate investment trust
under Section 856(c)(i) of the Code, and
(f) promptly contribute to EDR the net proceeds of any stock sales or debt
offerings.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full and
all Letters of Credit have expired or terminated and all LC Disbursements shall
have been reimbursed, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Sale/Leaseback. The Borrower will not, and will not permit
any Subsidiary to, enter into a sale/leaseback, or similar transaction, for any
of its Real Property.
SECTION 6.02. Liens. The Borrower will not create, incur, assume or permit
to exist any Lien on any property or asset now owned or hereafter acquired by
it, or assign or sell any income or revenues (including accounts receivable) or
rights in respect of any thereof, except:
(a) Permitted Encumbrances; and
(b) any Lien on any property or asset of the Borrower existing on the date
hereof and set forth in Schedule 6.02; provided that (i) such Lien shall not
apply to any other property or asset of the Borrower or any Subsidiary and (ii)
such Lien shall secure only those obligations (whether present or future) set
forth in the governing loan documents, as of the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding principal
amount thereof.
SECTION 6.03. Fundamental Changes. The Borrower will not, and will not
permit any Subsidiary to:
(a) merge into or consolidate with any other Person, or permit any other
Person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
substantially all of the assets of the Borrower or all or substantially all of
the stock of its Subsidiaries (in each case, whether now owned or hereafter
acquired), or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing (i) any Person may merge into, or consolidate with, EDR in a
transaction in which EDR is the surviving corporation, (ii) any Person not a
Credit Party may merge into, or consolidate with, any Subsidiary in a
56
transaction in which the surviving entity is a Subsidiary, (iii) any Subsidiary
not a Credit Party may sell, transfer, lease or otherwise dispose of its assets
to the Borrower or to another Subsidiary, (iv) any Subsidiary not a Credit Party
may liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders, (v) any Subsidiary which is a Credit
Party may merge into (or consolidate with) or liquidate or dissolve into, any
other Subsidiary which is a Credit Party, and (vi) any Subsidiary which is a
Credit Party may sell, transfer, lease or otherwise dispose of its assets to
Borrower or to any other Subsidiary which is a Credit Party; provided that any
such merger involving a Person that is not a wholly owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by Section
6.04.
(b) sell, transfer, lease or otherwise dispose of any of its assets to a
Person other than pursuant to clause (a) above if (i) the Value of the assets
disposed of in any twelve (12) month period exceeds twenty-five percent (25%) of
the Value of the Borrower's and its Subsidiaries' Real Property other than
Assets Under Development or undeveloped land, before giving effect to such
dispositions, or (ii) the assets disposed of in any twelve (12) month period
contributed or made up more than twenty-five percent (25%) of the Borrower's Net
Operating Income for such twelve (12) month period.
(c) engage to any material extent in any business other than the
ownership, development, operation and management of student housing communities
and businesses reasonably related thereto, except as allowed by Section 6.04(e).
SECTION 6.04. Investments, Loans, Advances and Acquisitions. The Borrower
will not, and will not permit any of its Subsidiaries to, purchase, hold or
acquire (including pursuant to any merger with any Person that was not a wholly
owned Subsidiary prior to such merger) any capital stock, evidences of
indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, or make or permit to exist any investment or any other interest in,
any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business
unit, except:
(a) Permitted Investments;
(b) Real Property operated as student housing communities;
(c) investments in Unconsolidated Affiliates so long as the aggregate
amount of such investments described in this clause (c) does not exceed twenty
percent (20%) of the Total Asset Value after giving effect to such investments;
(d) undeveloped land, so long as the aggregate Historical Value of such
land does not exceed ten percent (10%) of Total Asset Value, after giving effect
to such investments;
(e) investments not related to the ownership, development, operation and
management of student housing communities, so long as the value of same,
determined in
57
accordance with this Agreement, do not exceed ten percent (10%) of Total Asset
Value, after giving effect to such investments;
(f) Assets Under Development, so long as the aggregate Historical Value
thereof does not exceed twenty percent (20%) of the Total Asset Value after
giving effect to such investments; and
(g) mergers, consolidations and other transactions permitted under Section
6.03, so long as same do not cause the Borrower to be in violation of any
provision of this Section 6.04.
In addition to the foregoing, the aggregate value of the investments described
in clauses (c), (d), (e) and (f), above shall not exceed thirty percent (30%) of
Total Asset Value after giving effect to such investments. The investments
described above may be purchased or acquired, directly or indirectly, through
partnerships, joint ventures, or otherwise. The calculations in this Section
will be made without duplication if an investment is within more than one
category described in this Section.
SECTION 6.05. Hedging Agreements. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
SECTION 6.06. Restricted Payments. Commencing on January 1, 2006, the
Parent will not, and will not permit any of its Subsidiaries to, declare or
make, or agree to pay or make, directly or indirectly, during any calendar
quarter, any Restricted Payment, except (a) Restricted Payments which, when
added to all Restricted Payments made during the three immediately preceding
calendar quarters, do not exceed ninety-five percent (95%) of Funds From
Operations, (b) Subsidiaries may declare and pay dividends or distributions
ratably with respect to their capital stock or equity interest, and (c) the
Parent may make Restricted Payments required to comply with Section 5.15(e).
SECTION 6.07. Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and its wholly owned Subsidiaries not
involving any other Affiliate and (c) any Restricted Payment permitted by
Section 6.06.
SECTION 6.08. Parent Negative Covenants. The Parent will not (a) own any
Property other than the ownership interests of EDR and other assets with no more
than $10,000,00.00 in value; (b) give or allow any Lien on the ownership
interests of EDR; (c) create, incur, suffer or permit to exist, or assume or
guarantee, directly or indirectly, contingently or otherwise, or become or
remain liable with respect to any Indebtedness if the aggregate of such
Indebtedness and the Indebtedness of the Borrower would violate Section 5.02 if
such aggregate Indebtedness
58
is treated as the Borrower's Indebtedness or (d) engage to any material extent
in any business other than the ownership, development, operation and management
of student housing communities.
SECTION 6.09. Restrictive Agreements. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Borrower or any Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets, or
(b) the ability of any Subsidiary to pay dividends or other distributions with
respect to any shares of its capital stock or to make or repay loans or advances
to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the
Borrower or any other Subsidiary; provided that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by this Agreement, (ii)
the foregoing shall not apply to customary restrictions and conditions contained
in agreements relating to the sale of a Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that is to be sold
and such sale is permitted hereunder, (iii) clause (a) of the foregoing shall
not apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness or Liens permitted by this Agreement if such restrictions
or conditions apply only to the property or assets securing such Indebtedness
and (iv) clause (a) of the foregoing shall not apply to customary provisions in
leases restricting the assignment thereof.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) any Credit Party shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under any Loan Documents, when and as the same shall become due
and payable, and such failure shall continue unremedied for a period of over
three Business Days;
(c) any representation or warranty made or deemed made by or on behalf of
any Credit Party in or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection
with this Agreement or any amendment or modification hereof or waiver hereunder,
shall prove to have been incorrect in any material respect when made or deemed
made;
(d) the Borrower shall fail to observe or perform any covenant, condition
or agreement contained in Article V or VI other than Sections 5.04, 5.05, 5.06,
5.07(a), 5.08, and 5.11;
59
(e) any Credit Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure shall
continue unremedied for a period of over 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request
of any Lender) and if such default is not cureable within thirty (30) days and
the Credit Party is diligently pursuing cure of same, the cure period may be
extended for 30 days (for a total of 60 days after the original notice from the
Administrative Agent) upon written request from the Borrower to the
Administrative Agent;
(f) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of any Credit Party or any Subsidiary of the Borrower or its debts,
or of a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect
or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any Credit Party or any Subsidiary of the
Borrower or for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered;
(h) any Credit Party or any Subsidiary of the Borrower shall (i)
voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this Article, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for such Person or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(i) any Credit Party or any Subsidiary of the Borrower shall become
unable, admit in writing its inability or fail generally to pay its debts as
they become due;
(j) one or more judgments for the payment of money in an aggregate amount
in excess of $10,000,000 shall be rendered against any Credit Party, any
Subsidiary of the Borrower or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of such Person to enforce any such
judgment;
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(k) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Borrower
and its Subsidiaries in an aggregate amount exceeding $10,000,000; or
(l) a Change in Control shall occur;
then, and in every such event (other than an event described in clause (g) or
(h) of this Article), and at any time thereafter during the continuance of such
event, the Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take some or all of the following actions, at
the same or different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, (ii) declare the Loans then outstanding
to be due and payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower, and (iii) exercise any other
rights or remedies provided under this Agreement (including Section 2.05(j)) or
any other Loan Document, or any other right or remedy available by law or
equity; and in case of any event described in clause (g) or (h) of this Article,
the Commitments shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
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 other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by
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the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02), and (c)
except as expressly set forth herein, the Administrative Agent shall not have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any Credit Party that is communicated to or obtained by
the bank serving as Administrative Agent or any of its Affiliates in any
capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, with the approval of
Borrower (provided no Default has occurred and is continuing), which approval
shall not be unreasonably withheld, to appoint a successor. If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives
notice of its
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resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in Houston, Texas, or an Affiliate of any such
bank. Upon the acceptance of its appointment as Administrative Agent hereunder
by a successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender 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 Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it in care of EDR at 000 Xxx Xxxxx Xxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx (Telephone No. (901)
000-0000 and Telecopy No. (000) 000-0000));
(b) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., 000 Xxxx
Xxxxxx, Xxxxxxx, Xxxxx 00000, Attention: Manager, Real Estate Group (Xxxx
Xxxxxx) (Telephone No. (000) 000-0000 and Telecopy No. (000) 000-0000)), with a
copy to JPMorgan Chase Bank, N.A., 0000 Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx
00000, Attention: Agency Services (Xxxxxxxx Xxxxxxxx) (Telephone No. (713)
000-0000 and Telecopy No. (000) 000-0000));
(c) if to the Issuing Bank, to it at JPMorgan Chase Bank, N.A., 000 Xxxx
Xxxxxx, Xxxxxxx, Xxxxx 00000, Attention: Manager, Real Estate Group (Xxxx
Xxxxxx) (Telephone No. (000) 000-0000 and Telecopy No. (000) 000-0000)); and
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(d) if to the Swingline Lender, to it at JPMorgan Chase Bank, N.A., 000
Xxxx Xxxxxx, Xxxxxxx, Xxxxx 00000, Attention: Manager, Real Estate Group (Xxxx
Xxxxxx) (Telephone No. (000) 000-0000 and Telecopy No. (000) 000-0000)); and
(e) if to any other Lender, to it at its address (or telecopy number) set
forth on the signature pages of this Agreement, or as provided to Borrower in
writing by the Administrative Agent or the Lender.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given (i) if given by telecopy,
when such telecopy is transmitted to the telecopy number specified in this
Section and the appropriate confirmation is received (or if such day is not a
Business Day, on the next Business Day); (ii) if given by mail (return receipt
requested), on the earlier of receipt or three (3) Business Days after such
communication is deposited in the mail 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
Administrative Agent under Article II shall not be effective until received.
SECTION 9.02. Waivers; Amendments.
(a) No failure or delay by the Administrative Agent, the Issuing Bank or
any Lender in exercising any right or power hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent, the Issuing Bank and the Lenders hereunder and under
any other Loan Document are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by the Borrower therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan or issuance of a Letter of Credit shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent, any Lender or the Issuing Bank may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any Loan
or LC Disbursement, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of
each Lender
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affected thereby, (iv) change Section 2.17(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section or the
definition of "Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender, or (vi) release any Credit Party from its
obligations under the Loan Documents or release any Collateral, without the
written consent of each Lender; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent, the Issuing Bank or the Swingline Lender hereunder without the prior
written consent of the Administrative Agent, the Issuing Bank or the Swingline
Lender, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, the Issuing Bank or any Lender, including the
reasonable fees, charges and disbursements of any counsel for the Administrative
Agent, the Issuing Bank or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights
under this Section, or in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) The Borrower shall indemnify the Administrative Agent, the Issuing
Bank and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or Letter of Credit or the use of the proceeds therefrom (including any refusal
by the Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned or operated by
the Borrower or any of its Subsidiaries, or any Environmental Liability related
in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any
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Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from the gross negligence or willful
misconduct of such Indemnitee as determined by a court of law in a final
non-appealable judgment.
(c) To the extent that the Borrower fails to pay any amount required to be
paid by it to the Administrative Agent, the Issuing Bank or the Swingline Lender
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to the Administrative Agent, the Issuing Bank or the Swingline Lender, as the
case may be, such Lender's Applicable Percentage (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, the Issuing Bank or the Swingline
Lender in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than ten
days after written demand therefor.
SECTION 9.04. 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
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit) and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below,
any Lender may assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower
shall be required for an assignment to a Lender, an Affiliate of a Lender,
an Approved Fund or, if an Event of Default has occurred and is
continuing, any other assignee;
(B) the Administrative Agent; and
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(C) the Issuing Bank.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount of
the assigning Lender's Commitment or Loans of any Class, the amount of the
Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000.00 unless each of the Borrower and the
Administrative Agent otherwise consent, provided that no such consent of
the Borrower shall be required if an Event of Default has occurred and is
continuing;
(B) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, provided that this clause shall not be construed to
prohibit the assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of Commitments or
Loans;
(C) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500.00; and
(D) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire.
For the purposes of this Section 9.04(b), the term "Approved Fund"
has the following meaning:
"Approved Fund" means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in
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such rights and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the Issuing Bank and the
Lenders may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Issuing Bank and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (d) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.17(c) as though it were a Lender.
(d) A Participant shall not be entitled to receive any greater payment
under Section 2.14 or 2.16 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if
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it were a Lender shall not be entitled to the benefits of Section 2.16 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.16(e) as though it were a Lender.
(e) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness; Joint and Several.
(a) This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract.
(b) This Agreement and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof.
(c) Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
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(d) Each Person constituting the Borrower shall be bound jointly and
severally with one another to make, keep, observe and perform the
representations, warranties, covenants, agreements, obligations and liabilities
imposed by this Agreement and the other Loan Documents upon the "Borrower."
(e) Each Borrower agrees that it shall never be entitled to be subrogated
to any of the Administrative Agent's or any Lender's rights against any Credit
Party or other Person or any collateral or offset rights held by the
Administrative Agent or the Lenders for payment of the Loans until the full and
final payment of the Loans and all other obligations incurred under the Loan
Documents and final termination of the Lenders' obligations, if any, to make
further advances under this Agreement or to provide any other financial
accommodations to any Credit Party. The value of the consideration received and
to be received by each Borrower is reasonably worth at least as much as the
liability and obligation of each Borrower incurred or arising under the Loan
Documents. Each Borrower has determined that such liability and obligation may
reasonably be expected to substantially benefit each Borrower directly or
indirectly. Each Borrower has had full and complete access to the underlying
papers relating to the Loans and all of the Loan Documents, has reviewed them
and is fully aware of the meaning and effect of their contents. Each Borrower is
fully informed of all circumstances which bear upon the risks of executing the
Loan Documents and which a diligent inquiry would reveal. Each Borrower has
adequate means to obtain from each other Borrower on a continuing basis
information concerning such other Borrower's financial condition, and is not
depending on the Administrative Agent or the Lenders to provide such
information, now or in the future. Each Borrower agrees that neither the
Administrative Agent nor any of the Lenders shall have any obligation to advise
or notify any Borrower or to provide any Borrower with any data or information
regarding any other Borrower.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter existing
under this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Borrower
after any such setoff and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff) which such Lender
may have.
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SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the state and
federal courts in Houston, Texas and in New York, New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or any other Loan Document, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such State or, to the extent permitted
by law, in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement or any other Loan Document
against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Loan Document in any
court referred to in paragraph (b) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
71
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis from a source other than the
Borrower. For the purposes of this Section, "Information" means all information
received from any Credit Party relating to the Credit Party or its business,
other than any such information that is available to the Administrative Agent,
the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by
any Credit Party; provided that, in the case of information received from any
Credit Party after the date hereof, such information is clearly identified at
the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. If at any time there exists a
maximum rate of interest which may be contracted for, charged, taken, received
or reserved by the Lenders in accordance with applicable law (the "Maximum
Rate"), then notwithstanding anything herein to the contrary, at any time the
interest applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law
(collectively, the "Charges"), shall exceed such Maximum Rate, the rate of
interest payable in respect of such Loan hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the interest and Charges that would have been paid in respect of
such Loan but were not payable as result of the operation of this Section shall
be cumulated and the interest and Charges payable to the Lenders in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received
by the Lenders. If, for any reason whatsoever, the Charges paid or received on
the Loans produces a rate which exceeds the Maximum Rate, the Lenders shall
credit against the principal of the Loans (or, if such indebtedness shall have
been paid in full, shall refund to the payor of such Charges) such portion of
said Charges as shall be necessary
72
to cause the interest paid on the Loans to produce a rate equal to the Maximum
Rate. All sums paid or agreed to be paid to the holders of the Loans for the
use, forbearance or detention of the Loans shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread in equal parts
throughout the full term of this Agreement, so that the interest rate is uniform
throughout the full term of this Agreement. The provisions of this Section shall
control all agreements, whether now or hereafter existing and whether written or
oral, between the parties hereto. On each day, if any, that Texas law governs
the maximum rate of interest which may be contracted for, charged, taken,
received or reserved by the Lenders, the Maximum Rate shall be the "weekly
ceiling" (as defined in Chapter 303 of the Texas Finance Code (the "Texas
Finance Code") as amended) for that day. The Administrative Agent may from time
to time, as to current and future balances, implement any other ceiling under
the Texas Finance Code by notice to the Borrower, if and to the extent permitted
by the Texas Finance Code. Without notice to the Borrower or any other person or
entity, the Maximum Rate, if any, shall automatically fluctuate upward and
downward as and in the amount by which such maximum nonusurious rate of interest
permitted by applicable law fluctuates.
SECTION 9.14. USA PATRIOT Act. Each Lender hereby notifies the Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the Act.
73
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.
EDUCATION REALTY OPERATING PARTNERSHIP,
LP, a Delaware limited partnership
By: EDUCATION REALTY OP GP, INC.,
a Delaware corporation,
General Partner
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Xxxx X. Xxxxx
President
EDR TALLAHASSEE LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: EDR Tallahassee, LLC,
a Delaware limited liability company,
its general partner
By: EDR Tallahassee, Inc.,
a Delaware corporation, its
managing member
By: /s/ Xxxx X. Xxxxx
-------------------------
Xxxx X. Xxxxx
President
EDR XXXXXX LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: EDR Xxxxxx, LLC,
a Delaware limited liability company,
its general partner
By: EDR Xxxxxx, Inc.,
a Delaware corporation,
its managing member
By: /s/ Xxxx X. Xxxxx
------------------------
Xxxx X. Xxxxx
President
EDR XXXXXXXX LIMITED
PARTNERSHIP, a Delaware
limited partnership
By: EDR Xxxxxxxx, LLC,
a Delaware limited liability company,
its general partner
By: EDR Xxxxxxxx, Inc.,
a Delaware corporation, its
managing member
By: /s/ Xxxx X. Xxxxx
-------------------------
Xxxx X. Xxxxx
President
EDR C STATION, LLC,
a Delaware limited liability company
By: Education Realty Operating
Partnership, LP, a Delaware limited
partnership, its managing
member
By: Education Realty OP GP, Inc.,
a Delaware corporation, its
general partner
By: /s/ Xxxx X. Xxxxx
--------------------------
Xxxx X. Xxxxx
President
EDR ATHENS I, LLC,
a Delaware limited liability company
By: Education Realty Trust, LLC,
a Delaware limited liability company,
its managing member
By: Education Realty Operating
Partnership, LP, a Delaware
limited partnership,
its managing member
By: Education Realty OP GP,
Inc., a Delaware corporation,
its general partner
By: /s/ Xxxx X. Xxxxx
-------------------------
Xxxx X. Xxxxx
President
EDR TALLAHASSEE I, LLC,
a Delaware limited liability company
By: Education Realty Trust, LLC,
a Delaware limited liability company,
its managing member
By: Education Realty Operating
Partnership, LP, a Delaware
limited partnership, its
managing member
By: Education Realty OP GP, Inc.
a Delaware corporation, its
general partner
By: /s/ Xxxx X. Xxxxx
-----------------------
Xxxx X. Xxxxx
President
The Parent joins in the execution of this Agreement to evidence its
agreement to the provisions of Sections 5.01, 5.15, 6.06 and 6.08 of this
Agreement.
EDUCATION REALTY TRUST, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: President
Signature page to Credit Agreement with Education Realty Operating Partnership,
LP
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent,
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Signature page to Credit Agreement with Education Realty Operating Partnership,
LP
UBS LOAN FINANCE LLC
By: /s/ Xxxxxxx X. Saint
-----------------------------------
Name: Xxxxxxx X. Saint
Title: Director, Banking Products
Services, US
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director, Banking Products
Services, US
Address:
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
UBS SECURITIES LLC,
as Syndication Agent
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Director and Counsel, Region
Americas Legal
SCHEDULE 2.01
LENDER REVOLVING LOAN COMMITMENT
(Percentage)
JPMorgan Chase Bank, N.A. $37,500,000.00
(50%)
UBS Loan Finance LLC $37,500,000.00
(50%)
SCHEDULE 3.05(f)
1. Earthquake or Seismic Area - None
2. Special Flood Hazard - Jefferson Commons in Lawrence, Kansas is in Special
Flood Hazard Area AE.
SCHEDULE 3.07
In June 2001, the United State Department of Justice, or DOJ, notified JPI
of an on-going investigation regarding possible violations of the ADA and the
FHAA at various residential properties developed by JPI, mostly multi-family
apartment communities. Of the 14 student housing communities the Borrower is
acquiring from JPI in the acquisition, one property is included in those
reviewed by the DOJ to date. The DOJ has reviewed the property plans for this
property but has not issued a report regarding its review. In October 2002, the
DOJ indicated that the investigations were being delayed for an undetermined
period of time. This investigation has not been resolved and, at this point, no
conclusion can be reached regarding what will be required to conclude it or
whether it will result in a dispute or legal proceedings with the DOJ.
Noncompliance with the ADA and the FHAA could result in the imposition of
injunctive relief, fines, awards of damages to private litigants or additional
capital expenditures to remedy such noncompliance. The Borrower is unable to
predict the outcome of the DOJ's investigation related to the JPI portfolio.
SCHEDULE 3.15
LIST OF SUBSIDIARIES
Education Realty OP Limited Partnership Trust
Education Realty OP GP, Inc.
Education Realty Operating Partnership, XX
Xxxxx & X'Xxxx Education Services, Inc.
Xxxxx & O'Hara Development Company, LLC
Education Realty Trust, LLC
EDR C Station, LLC
EDR BG GP, LLC
EDR BG, LP
EDR Clemson I GP, LLC
EDR Clemson I Limited Partnership
EDR Tucson I, LLC
EDR Tallahassee I, LLC
EDR Athens I, LLC
EDR Lubbock, Inc.
EDR Lubbock, LLC
EDR Lubbock Limited Partnership
EDR Tallahassee, Inc.
EDR Tallahassee, LLC
EDR Tallahassee Limited Partnership
EDR Xxxxxxxx, Inc.
EDR Xxxxxxxx, LLC
EDR Xxxxxxxx Limited Partnership
EDR Columbus, Inc.
EDR Columbus, LLC
EDR Columbus Limited Partnership
EDR Columbia, Inc.
EDR Columbia, LLC
EDR Columbia Limited Partnership
EDR Western Michigan, Inc.
EDR Western Michigan, LLC
EDR Western Michigan Limited Partnership
EDR Wabash, Inc.
EDR Wabash, LLC
EDR Wabash Limited Partnership
EDR State College, Inc.
EDR State College, LLC
EDR Limpar, LLC
EDR State College Limited Partnership
EDR Stillwater, Inc.
EDR Stillwater, LLC
EDR Stillwater Limited Partnership
EDR Knoxville, Inc.
EDR Knoxville, LLC
EDR Knoxville Limited Partnership
EDR Tucson, Inc.
EDR Tucson, LLC
EDR Tucson Phase II Limited Partnership
EDR Xxxxxx, Inc.
EDR Xxxxxx, LLC
EDR Xxxxxx Limited Partnership
EDR Tampa, Inc.
EDR Tampa, LLC
EDR Tampa Limited Partnership
EDR Orlando, Inc.
EDR Orlando, LLC
EDR Orlando Limited Partnership
University Towers OP GP, LLC
University Towers Operating Partnership, LP
AOD/Raleigh Residence Hall, LLC
University Towers Building, LLC
University Towers Raleigh, LLC
SCHEDULE 5.12
POOL
1. Jefferson Commons - Tallahassee, Florida (Xxxx County)
2. Players Club Apartments - Tallahassee, Florida (Xxxx County)
3. Jefferson Pointe - Tallahassee, Florida (Xxxx County)
4. The Reserve At Athens - Athens, Georgia (Xxxxxx County)
5. College Station - Augusta, Georgia (Richmond County)
6. Jefferson Commons - Lawrence, Kansas (Xxxxxxx County)
SCHEDULE 6.02
EXISTING LIENS
None
CREDIT AGREEMENT
EXHIBIT A
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended, the
"Credit Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto
are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective
facilities identified below (including any letters of credit, guarantees, and
swingline loans included in such facilities) and (ii) to the extent permitted to
be assigned under applicable law, all claims, suits, causes of action and any
other right of the Assignor (in its capacity as a Lender) against any Person,
whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of
the foregoing, including contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the "Assigned Interest"). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided
in this Assignment and Assumption, without representation or warranty by the
Assignor.
1. Assignor: __________________________________
2. Assignee: __________________________________
[and is an Affiliate/Approved Fund of [identify Lender](1)]
3. Borrower: Education Realty Operating Partnership, LP and certain of
its Subsidiaries
----------
(1) Select as applicable.
A-1
4. Administrative Agent: JPMorgan Chase Bank, N.A., as the administrative
agent under the Credit Agreement
5. Credit Agreement: The Credit Agreement dated as of ________________,
2005, among Education Realty Operating
Partnership, LP, certain of its Subsidiares, the
Lenders parties thereto, JPMorgan Chase Bank,
N.A., as Administrative Agent, and the other
agents parties thereto
6. Assigned Interest:
Aggregate Amount of Amount of Percentage
Commitment/Loans Commitment/Loans Assigned of
for all Lenders Assigned Commitment/Loans(2)
------------------- ---------------- ------------------
$_____ $_____ _____%
$_____ $_____ _____%
$_____ $_____ _____%
Effective Date: ______________________, 20____ [TO BE INSERTED BY
ADMINISTRATIVE AGENT AND WHICH SHALL BE THE
EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE
REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:_____________________________________
Title:_________________________________
----------
(2) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
A-2
ASSIGNEE
[NAME OF ASSIGNOR]
By:_____________________________________
Title:_________________________________
[Consented to and](3) Accepted:
[JPMorgan Chase Bank, N.A.], as
Administrative Agent
By:_____________________________________
Title:_________________________________
[Consented to:](4)
[NAME OF RELEVANT PARTY]
By:_____________________________________
Title:_________________________________
----------
(3) To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
(4) To be added only if the consent of the Borrower and/or other parties (e.g.
Swingline Lender, Issuing Bank) is required by the terms of the Credit
Agreement.
X-0
XXXXX 0
XXXXXXXX XXXXX AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or observance
by the Borrower, any of its Subsidiaries or Affiliates or any other Person of
any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
satisfies the requirements, if any, specified in the Credit Agreement that are
required to be satisfied by it in order to acquire the Assigned Interest and
become a Lender, (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement as a Lender thereunder and, to the extent
of the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached to the Assignment and Assumption is any documentation required
to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance on the Administrative Agent, the Assignor or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignor for amounts
which have accrued to but excluding the
A-4
Effective Date and to the Assignee for amounts which have accrued from and after
the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
A-5
CREDIT AGREEMENT
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
[Date]
JPMorgan Chase Bank, N.A.
as Administrative Agent
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Manager, Real Estate Group
Re: Education Realty Operating Partnership. LP
Compliance Certificate for _______ through __________
Dear Ladies and Gentlemen:
This Compliance Certificate is made with reference to that certain Credit
Agreement dated as of ________________, 2005 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Education
Realty Operating Partnership, LP and certain of its Subsidiaries (collectively,
the "Borrower"), the financial institutions party thereto, as lenders, and
JPMorgan Chase Bank, N.A., as Administrative Agent. All capitalized terms used
in this Compliance Certificate (including any attachments hereto) and not
otherwise defined in this Compliance Certificate shall have the meanings set
forth for such terms in the Credit Agreement. All Section references herein
shall refer to the Credit Agreement.
I hereby certify that I am the [chief financial officer] [chief accounting
officer] of Education Realty Operating Partnership, LP, and that I make this
Certificate on behalf of each Borrower. I further represent and certify on
behalf of the Borrower as follows as of the date of this Compliance Certificate:
I have reviewed the terms of the Loan Documents and have made, or
have caused to be made under my supervision, a review in reasonable
detail of the transactions and consolidated and consolidating
financial condition of the Borrower and its Subsidiaries, during the
accounting period (the "Reporting Period") covered by the financial
reports delivered simultaneous herewith pursuant to Section
5.01[(a)][(b)], and that such review has not disclosed the existence
during or at the end of such Reporting Period (and that I do not
have knowledge of the existence as at the
B-1
date hereof) of any condition or event which constitutes a Default
or Event of Default.(1)
Attached hereto as (x) Schedule A-1 is a list of the Real Property
that comprises the Pool and the Pool Value, and (y) Schedule A-2 is
a list of the Real Property assets that were identified as being in
the Pool in the last Compliance Certificate and that are no longer
qualified to be in the Pool as of the last day of the Reporting
Period.
Attached hereto as (x) Schedule B-1 is a detailed calculation of
Interest Expense for the Reporting Period, which amount was
$__________, and (y) Schedule B-2 is a detailed calculation of
Interest Expense, principal paid and due and payable on
Indebtedness, and cash dividends payable on the Parent's preferred
stock for the Reporting Period, which aggregated $__________.
Attached hereto as Schedule C is a detailed calculation of EBITDA
for the Reporting Period, which amount was $___________.
As of the last day of the Reporting Period:
1. Interest Coverage Ratio
(a) EBITDA $___________
(b) Interest Expense $___________
(c) Interest Coverage Ratio(2) ______: 1.00
2. Fixed Charge Coverage Ratio Calculation:
(a) EBITDA $___________
(b) Capital Expenditure Reserve $___________
(attach quarterly average calculation)
(c) (a) - (b) $___________
(d) Principal paid and due and payable plus Interest Expense $___________
plus cash dividends on preferred stock
(e) Fixed Charge Coverage Ratio ((c) to (d))(3) ______: 1.00
----------
(1) Alternatively, if a Default or Event of Default existed or exists, specify
the nature and period of existence thereof and what action the Borrower or any
of its Subsidiaries has taken, is taking and proposes to take with respect
thereto.
(2) Pursuant to Section 5.02(b), must not be less than 2.00 to 1.00.
(3) Pursuant to Section 5.02(c), must not be less than 1.50 to 1.00.
B-2
3. Tangible Net Worth(4): $___________
4. Total Leverage Ratio Calculation:
(a) Indebtedness $___________
(b) Total Asset Value $___________
(c) Total Leverage Ratio(5) _______%
5. Varying Interest Rate Calculation:
(a) Indebtedness with a varying interest rate $___________
(b) Indebtedness $___________
(c) (a) to (b)(6) _______%
6. Asset Maintenance Calculation
(a) Value of Pool(7)
(attach list of each Property) $___________
7. Investment Limitations
(a) (i) Investments in Unconsolidated Affiliates $___________
(ii) Total Asset Value $___________
(iii) (i) / (ii), expressed as a percentage(8) ________%
(b) (i) Investments in undeveloped land $___________
(ii) Total Asset Value $___________
(iii) (i) / (ii), expressed as a percentage(9) ________%
(c) (i) Investment in Assets Under Development $___________
(ii) Total Asset Value $___________
(iii) (i) / (ii), expressed as a percentage(10) ________%
(d) (i) Investments in Real Property not constituting
student housing communities $___________
(ii) Total Asset Value $___________
----------
(4) Pursuant to Section 5.02(d), must not be less than $____________, plus 75%
of the net proceeds of equity offerings after the date of the Credit Agreement.
(5) Pursuant to Section 5.02(a), cannot exceed sixty-five percent (65%).
(6) Pursuant to Section 5.02(e), must not exceed thirty percent (30%).
(7) Pursuant to Section 5.12(a), must not be less than $50,000,000.
(8) Pursuant to Section 6.04(c), cannot exceed twenty percent (20%) of the Total
Asset Value.
(9) Pursuant to Section 6.04(d), cannot exceed ten percent (10%) of Total Asset
Value.
(10) Pursuant to section 6.04(f), cannot exceed twenty percent (20%) of Total
Asset Value.
B-3
(iii) (i) / (ii), expressed as a percentage(11) ___ ________%
(g) (i) Investments in undeveloped land,
Unconsolidated Affiliates, Assets Under Development
and non-student housing communities $_____________
(ii) Total Asset Value $_____________
(iii) (i) / (ii), expressed as a percentage(12) ____________%
8. Restricted Payments
(a) Restricted Payments made on or after January 1, 2006 for
Reporting Period and preceding 3 quarters (cannot exceed
95% of (b)) $_____________
(b) Funds from Operations $_____________
9. Maximum Outstandings
(a) Aggregate Commitment $75,000,000.00
(b) Aggregate Borrowing Base Availability
(attach list reflecting amount for each Mortgaged Property) $_____________
(c) Maximum Loan Available Amount (lesser of (a) or (b)) $_____________
(d) Amount outstanding under Revolving Loans and Swingline Loans $_____________
(e) LC Exposure $_____________
(f) Revolving Credit Exposure (d)+(e); cannot exceed (c) $_____________
This Compliance Certificate has been executed and delivered as of the date
set forth above.
EDUCATION REALTY OPERATING
PARTNERSHIP, LP
By: EDUCATION REALTY OP GP, INC.,
General Partner
By:____________________________________
Name:__________________________________
Title:_________________________________
----------
(11) Pursuant to Section 6.04(e), cannot exceed ten percent (10%) of Total
Asset Value.
12 Pursuant to Section 6.04, cannot exceed thirty percent (30%) of Total
Asset Value.
B-4
CREDIT AGREEMENT
EXHIBIT C
FORM OF GUARANTY
THIS GUARANTY dated as of _______________, 2005, executed and delivered by
each of the undersigned, whether one or more, (all each a "Guarantor" and,
collectively, the "Guarantors"), in favor of (a) JPMORGAN CHASE BANK, N.A., in
its capacity as Administrative Agent (the "Agent") for the Lenders under that
certain Credit Agreement dated as of _______________, 2005, by and among
EDUCATION REALTY OPERATING PARTNERSHIP, LP, EDR ATHENS I, LLC, EDR TALLAHASSEE
I, LLC, EDR C STATION, LLC, EDR TALLAHASSEE LIMITED PARTNERSHIP, EDR XXXXXX
LIMITED PARTNERSHIP and EDR XXXXXXXX LIMITED PARTNERSHIP (collectively, the
"Borrower"), the financial institutions party thereto and their assignees in
accordance therewith (the "Lenders"), and the Agent (as the same may be amended,
restated, supplemented or otherwise modified from time to time in accordance
with its terms, the "Credit Agreement") and (b) the Lenders.
WHEREAS, pursuant to the Credit Agreement, the Lenders have made available
to the Borrower certain financial accommodations on the terms and conditions set
forth in the Credit Agreement;
WHEREAS, the Borrower and each Guarantor, though separate legal entities,
are mutually dependent on each other in the conduct of their respective
businesses as an integrated operation and have determined it to be in their
mutual best interests to obtain financing from the Agent and the Lenders through
their collective efforts;
WHEREAS, each Guarantor acknowledges that it will receive direct and
indirect benefits from the Agent and the Lenders making such financial
accommodations available to the Borrower under the Credit Agreement and,
accordingly, each Guarantor is willing to guarantee the Borrower's obligations
to the Agent and the Lenders on the terms and conditions contained herein; and
WHEREAS, each Guarantor's execution and delivery of this Guaranty is one
of the conditions precedent to the Agent and the Lenders making, or continuing
to make, such financial accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each Guarantor, each Guarantor
agrees as follows:
Section 1. Guaranty. Each Guarantor hereby absolutely and unconditionally
guaranties the due and punctual payment and performance of all of the following
when due (collectively referred to as the "Obligations"): (a) all indebtedness
and obligations owing by the Borrower to any of the Lenders or the Agent under
or in connection with the Credit Agreement and any other Loan Document,
including without limitation, the repayment of all principal of the Loans made
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by the Lenders to the Borrower under the Credit Agreement and the payment of all
interest, fees, charges, reasonable attorneys fees and other amounts payable to
any Lender or the Agent thereunder or in connection therewith (including any
Hedging Agreement); (b) any and all extensions, renewals, modifications,
amendments or substitutions of the foregoing; and (c) all expenses, including,
without limitation, reasonable attorneys' fees and disbursements, that are
incurred by the Lenders or the Agent in the enforcement of any of the foregoing
or any obligation of such Guarantor hereunder.
Section 2. Guaranty of Payment and Not of Collection. This Guaranty is a
guaranty of payment, and not of collection, and a debt of each Guarantor for its
own account. Accordingly, the Lenders and the Agent shall not be obligated or
required before enforcing this Guaranty against any Guarantor: (a) to pursue any
right or remedy the Lenders or the Agent may have against the Borrower, any
other Guarantor or any other Person or commence any suit or other proceeding
against the Borrower, any other Guarantor or any other Person in any court or
other tribunal; (b) to make any claim in a liquidation or bankruptcy of the
Borrower, any other Guarantor or any other Person; or (c) to make demand of the
Borrower, any other Guarantor or any other Person or to enforce or seek to
enforce or realize upon any collateral security held by the Lenders or the Agent
which may secure any of the Obligations. In this connection, each Guarantor
hereby waives the right of such Guarantor to require any holder of the
Obligations to take action against the Borrower as provided by any legal
requirement of any Governmental Authority.
Section 3. Guaranty Absolute. Each Guarantor guarantees that the
Obligations will be paid strictly in accordance with the terms of the documents
evidencing the same, regardless of any legal requirement now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or the Lenders with respect thereto. The liability of each Guarantor under
this Guaranty shall be absolute and unconditional in accordance with its terms
and shall remain in full force and effect without regard to, and shall not be
released, suspended, discharged, terminated or otherwise affected by, any
circumstance or occurrence whatsoever (other than the full and final payment and
performance of the Obligations), including, without limitation, the following
(whether or not such Guarantor consents thereto or has notice thereof):
(a) (i) any change in the amount, interest rate or due date or other term
of any of the Obligations; (ii) any change in the time, place or manner of
payment of all or any portion of the Obligations; (iii) any amendment or waiver
of, or consent to the departure from or other indulgence with respect to, the
Credit Agreement, any other Loan Document, or any other document or instrument
evidencing or relating to any Obligations; or (iv) any waiver, renewal,
extension, addition, or supplement to, or deletion from, or any other action or
inaction under or in respect of, the Credit Agreement, any of the other Loan
Documents, or any other documents, instruments or agreements relating to the
Obligations or any other instrument or agreement referred to therein or
evidencing any Obligations or any assignment or transfer of any of the
foregoing;
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(b) any lack of validity or enforceability of the Credit Agreement, any of
the other Loan Documents, or any other document, instrument or agreement
referred to therein or evidencing any Obligations or any assignment or transfer
of any of the foregoing;
(c) any furnishing to the Agent or the Lenders of any security for the
Obligations, or any sale, exchange, release or surrender of, or realization on,
any collateral security for the Obligations;
(d) any settlement or compromise of any of the Obligations, any security
therefor, or any liability of any other party with respect to the Obligations,
or any subordination of the payment of the Obligations to the payment of any
other liability of the Borrower;
(e) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to any other
Guarantor, the Borrower or any other Person, or any action taken with respect to
this Guaranty by any trustee or receiver, or by any court, in any such
proceeding;
(f) any nonperfection of any security interest or other Lien on any of the
collateral securing any of the Obligations;
(g) any act or failure to act by the Borrower or any other Person which
may adversely affect such Guarantor's subrogation rights, if any, against the
Borrower to recover payments made under this Guaranty;
(h) any application of sums paid by the Borrower or any other Person with
respect to the liabilities of the Borrower to the Agent or the Lenders,
regardless of what liabilities of the Borrower remain unpaid;
(i) any defect, limitation or insufficiency in the borrowing powers of the
Borrower or in the exercise thereof; or
(j) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, any Guarantor hereunder.
Section 4. Action with Respect to Obligations. The Lenders and the Agent
may in accordance with the Credit Agreement, at any time and from time to time,
without the consent of, or notice to, any Guarantor, and without discharging any
Guarantor from its obligations hereunder take any and all actions described in
Section 3 and may otherwise: (a) amend, modify, alter or supplement the terms of
any of the Obligations, including, but not limited to, extending or shortening
the time of payment of any of the Obligations or the interest rate that may
accrue on any of the Obligations; (b) amend, modify, alter or supplement the
Credit Agreement or any other Loan Document; (c) sell, exchange, release or
otherwise deal with all, or any part, of any collateral securing any of the
Obligations; (d) release any Person liable in any manner for the payment or
collection of the Obligations; (e) exercise, or refrain from exercising, any
rights against the Borrower or any other Person (including, without limitation,
any other Guarantor);
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and (f) apply any sum, by whomsoever paid or however realized, to the
Obligations in such order as the Lenders or the Agent shall elect in accordance
with the Credit Agreement.
Section 5. Representations and Warranties. Each Guarantor hereby makes to
the Agent and the Lenders all of the representations and warranties made by the
Borrower with respect to or in any way relating to such Guarantor in the Credit
Agreement and the other Loan Documents, as if the same were set forth herein in
full.
Section 6. Covenants. Each Guarantor will comply with all covenants which
the Borrower is to cause such Guarantor to comply with under the terms of the
Credit Agreement or any other Loan Documents.
Section 7. Waiver. Each Guarantor, to the fullest extent permitted by
applicable law, hereby waives notice of acceptance hereof or any presentment,
demand, protest or notice of any kind, and any other act or thing, or omission
or delay to do any other act or thing, which in any manner or to any extent
might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder.
Section 8. Inability to Accelerate Loan. If the Agent and/or the Lenders
are prevented from demanding or accelerating payment thereof by reason of any
automatic stay or otherwise, the Agent and/or the Lenders shall be entitled to
receive from each Guarantor, upon demand therefor, the sums which otherwise
would have been due had such demand or acceleration occurred.
Section 9. Reinstatement of Obligations. Each Guarantor agrees that this
Guaranty shall continue to be effective or be reinstated, as the case may be,
with respect to any Obligations if at any time payment of any such Obligations
is rescinded or otherwise must be restored by the Agent and/or the Lenders upon
the bankruptcy or reorganization of the Borrower or any Guarantor or otherwise.
Section 10. Subrogation. Until all of the Obligations shall have been
indefeasibly paid in full, any right of subrogation a Guarantor may have shall
be subordinate to the rights of Agent and the Lenders and each Guarantor hereby
waives any right to enforce any remedy which the Agent and/or the Lenders now
have or may hereafter have against the Borrower, and each Guarantor hereby
waives any benefit of, and any right to participate in, any security or
collateral given to the Agent and the Lenders to secure payment or performance
of any of the Obligations.
Section 11. Payments Free and Clear. All sums payable by each Guarantor
hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes (as defined in the Credit Agreement) or Other Taxes (as
defined in the Credit Agreement); provided that if any Guarantor shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(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), the Agent, Lender or Issuing Bank (as defined in the Credit
Agreement) (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made; (ii) such Guarantor shall make
such deductions; and (iii) such Guarantor shall pay the
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full amount deducted to the relevant Governmental Authority (as defined in the
Credit Agreement) in accordance with applicable law.
Section 12. Set-off. In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, each
Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
obligations at any time owing by such Lender to or for the credit or the account
of any Guarantor against any of and all the obligations of such Guarantor now or
hereafter existing under this Guaranty held by such Lender then due and payable.
Each Guarantor 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 applicable provisions of the Credit Agreement, may
exercise rights of setoff or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of such Guarantor in the amount of such participation.
Section 13. Subordination. Each Guarantor hereby expressly covenants and
agrees for the benefit of the Agent and the Lenders that all obligations and
liabilities of the Borrower or any other Guarantor to such Guarantor of whatever
description, including without limitation, all intercompany receivables of such
Guarantor from the Borrower or any other Guarantor (collectively, the "Junior
Claims") shall be subordinate and junior in right of payment to all Obligations;
provided, however, that payment thereof may be made so long as no Event of
Default shall have occurred and be continuing. If an Event of Default shall have
occurred and be continuing, then no Guarantor shall accept any direct or
indirect payment (in cash, property, securities by setoff or otherwise) from the
Borrower or any other Guarantor on account of or in any manner in respect of any
Junior Claim until all of the Obligations have been indefeasibly paid in full.
Section 14. Avoidance Provisions. It is the intent of each Guarantor, the
Agent and the Lenders that in any Proceeding, such Guarantor's maximum
obligation hereunder shall equal, but not exceed, the maximum amount which would
not otherwise cause the obligations of such Guarantor hereunder (or any other
obligations of such Guarantor to the Agent and the Lenders) to be avoidable or
unenforceable against such Guarantor in such Proceeding as a result of
applicable law, including without limitation, (a) Section 548 of the Bankruptcy
Code of 1978, as amended (the "Bankruptcy Code") and (b) any state fraudulent
transfer or fraudulent conveyance act or statute applied in such Proceeding,
whether by virtue of Section 544 of the Bankruptcy Code or otherwise. The
applicable laws under which the possible avoidance or unenforceability of the
obligations of such Guarantor hereunder (or any other obligations of such
Guarantor to the Agent and the Lenders) shall be determined in any such
Proceeding are referred to as the "Avoidance Provisions." Accordingly, to the
extent that the obligations of any Guarantor hereunder would otherwise be
subject to avoidance under the Avoidance Provisions, the maximum Obligations for
which such Guarantor shall be liable hereunder shall be reduced to that amount
which, as of the time any of the Obligations are deemed to have been incurred
under the Avoidance Provisions, would not cause the obligations of any Guarantor
hereunder (or any other obligations of such Guarantor to the Agent and the
Lenders), to be subject to avoidance under the Avoidance
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Provisions. This Section is intended solely to preserve the rights of the Agent
and the Lenders hereunder to the maximum extent that would not cause the
obligations of any Guarantor hereunder to be subject to avoidance under the
Avoidance Provisions, and no Guarantor nor any other Person shall have any right
or claim under this Section as against the Agent and the Lenders that would not
otherwise be available to such Person under the Avoidance Provisions.
Section 15. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the financial condition of the Borrower, of
the other Guarantors and of all other circumstances bearing upon the risk of
nonpayment of any of the Obligations and the nature, scope and extent of the
risks that such Guarantor assumes and incurs hereunder, and agrees that none of
the Agent or any Lender shall have any duty whatsoever to advise any Guarantor
of information regarding such circumstances or risks.
Section 16. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 17. Jurisdiction; Venue; JURY WAIVER.
(a) Each Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the state and
federal courts in Houston, Texas and in New York, New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Guaranty or any other Loan Document, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such State or, to the extent permitted
by law, in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Guaranty shall affect any right that the Agent,
the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Guaranty or any other Loan Document against the
Guarantor or its properties in the courts of any jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Guaranty or any other Loan Document in any
court referred to in paragraph (a) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
GUARANTY, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
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ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
Section 18. Loan Accounts. The Agent may maintain books and accounts
setting forth the amounts of principal, interest and other sums paid and payable
with respect to the Obligations, and in the case of any dispute relating to any
of the outstanding amount, payment or receipt of Obligation or otherwise, the
entries in such account shall be binding upon each Guarantor as to the
outstanding amount of such Obligations and the amounts paid and payable with
respect thereto absent manifest error. The failure of the Agent to maintain such
books and accounts shall not in any way relieve or discharge any Guarantor of
any of its obligations hereunder.
Section 19. Waiver of Remedies. No delay or failure on the part of the
Agent or the Lenders in the exercise of any right or remedy it may have against
any Guarantor hereunder or otherwise shall operate as a waiver thereof, and no
single or partial exercise by the Agent or the Lenders of any such right or
remedy shall preclude other or further exercise thereof or the exercise of any
other such right or remedy.
Section 20. Successors and Assigns. Each reference herein to the Agent or
the Lenders shall be deemed to include such Person's respective successors and
assigns (including, but not limited to, any holder of the Obligations) in whose
favor the provisions of this Guaranty also shall inure, and each reference
herein to any Guarantor shall be deemed to include the Guarantor's successors
and assigns, upon whom this Guaranty also shall be binding. The Lenders and the
Agent may, in accordance with the applicable provisions of the Credit Agreement,
assign, transfer or sell any Obligation, or grant or sell participation in any
Obligations, to any Person or entity without the consent of, or notice to, any
Guarantor and without releasing, discharging or modifying such Guarantor's
obligations hereunder. Each Guarantor hereby consents to the delivery by the
Agent or any Lender to any assignee, transferee or participant of any financial
or other information regarding the Borrower or any Guarantor. Each Guarantor may
not assign or transfer its obligations hereunder to any Person.
Section 21. Amendments. This Guaranty may not be amended except as
provided in the Credit Agreement.
Section 22. Payments. All payments made by any Guarantor pursuant to this
Guaranty shall be made in Dollars, in immediately available funds to the Agent
at the place and time provided for in the Credit Agreement on the date one (1)
Business Day after written demand therefor to such Guarantor by the Agent.
SECTION 23. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS OF THE
GUARANTORS HEREUNDER AND UNDER OTHER LOAN DOCUMENTS SHALL BE JOINT AND SEVERAL,
AND ACCORDINGLY, EACH GUARANTOR (BUT NOT ITS
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LIMITED PARTNERS, SHAREHOLDERS OR MEMBERS) CONFIRMS THAT IT (BUT NOT ITS LIMITED
PARTNERS, SHAREHOLDERS OR MEMBERS) IS LIABLE FOR THE FULL AMOUNT OF THE
OBLIGATIONS AND ALL OF THE OBLIGATIONS AND LIABILITIES OF EACH OF THE OTHER
GUARANTORS HEREUNDER AND UNDER OTHER LOAN DOCUMENTS.
Section 24. Notices. All notices, requests and other communications
hereunder shall be in writing and shall be given as provided in the Loan
Agreement. Each Guarantor's address for notice is set forth below its signature
hereto.
Section 25. Severability. In case any provision of this Guaranty shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 26. Headings. Section headings used in this Guaranty are for
convenience only and shall not affect the construction of this Guaranty.
Section 27. Definitions. (a) For the purposes of this Guaranty:
"Proceeding" means any of the following: (i) a voluntary or involuntary
case concerning any Guarantor shall be commenced under the Bankruptcy Code or
any other applicable bankruptcy laws; (ii) a custodian (as defined in the
Bankruptcy Code or any other applicable bankruptcy laws) is appointed for, or
takes charge of, all or any substantial part of the property of any Guarantor;
(iii) any other proceeding under any applicable law, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding-up or composition
for adjustment of debts, whether now or hereafter in effect, is commenced
relating to any Guarantor; (iv) any Guarantor is adjudicated insolvent or
bankrupt; (v) any order of relief or other order approving any such case or
proceeding is entered by a court of competent jurisdiction; (vi) any Guarantor
makes a general assignment for the benefit of creditors; (vii) any Guarantor
shall fail to pay, or shall state that it is unable to pay, or shall be unable
to pay, its debts generally as they become due; (viii) any Guarantor shall call
a meeting of its creditors with a view to arranging a composition or adjustment
of its debts; (ix) any Guarantor shall by any act or failure to act indicate its
consent to, approval of or acquiescence in any of the foregoing; or (x) any
corporate action shall be taken by any Guarantor for the purpose of effecting
any of the foregoing.
(b) Terms not otherwise defined herein are used herein with the respective
meanings given them in the Credit Agreement.
IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this
Guaranty as of the date and year first written above.
(GUARANTOR)
By:____________________________________
Name:__________________________________
C-8
Title:_________________________________
Address for Notices:
c/o EDUCATION REALTY OPERATING
PARTNERSHIP, LP
000 Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
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CREDIT AGREEMENT
EXHIBIT D
FORM OF NOTE
$_________________ __________, 2005
FOR VALUE RECEIVED, EDUCATION REALTY OPERATING PARTNERSHIP, LP, EDR ATHENS
I, LLC, EDR TALLAHASSEE I, LLC, EDR C STATION, LLC, EDR TALLAHASSEE LIMITED
PARTNERSHIP, EDR XXXXXX LIMITED PARTNERSHIP AND EDR XXXXXXXX LIMITED PARTNERSHIP
(collectively, the "Maker") jointly and severally promise to pay without offset
or counterclaim to the order of [insert name of Lender], ("Payee"), the
principal amount equal to the lesser of (x) __________________________
($_____________) or (y) the outstanding amount advanced by Payee as a Loan under
the Credit Agreement (as hereinafter defined), payable in accordance with the
terms of the Credit Agreement.
Maker also promises to pay interest on the unpaid principal amount of this
Note (this "Note") at the rates and at the times which shall be determined in
accordance with the provisions of that certain Credit Agreement dated of even
date herewith, among Maker, the Lenders named therein, and JPMorgan Chase Bank,
N.A., as Administrative Agent for itself and the Lenders (as hereafter amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
Capitalized terms used herein without definition shall have the meanings set
forth in the Credit Agreement.
Amounts borrowed may be repaid and reborrowed at any time prior to the
termination of the Availability Period. Except as otherwise provided in the
Credit Agreement, no Lender shall have any obligation to make a Loan to the
extent such Loan would cause the sum of the total Revolving Credit Exposures to
exceed the total Maximum Loan Available Amount.
This Note is subject to mandatory prepayment and prepayment at the option
of the Maker, as provided in the Credit Agreement.
This Note is issued pursuant to the Credit Agreement and is entitled to
the benefits of the Credit Agreement, reference to which is hereby made for a
more complete statement of the terms and conditions under which the Loan
evidenced hereby is made and is to be repaid.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK. MAKER AGREES THAT JURISDICTION AND VENUE FOR ANY
ACTION REGARDING THIS NOTE SHALL BE AS SET FORTH IN THE CREDIT AGREEMENT.
D-1
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note may become, or may be declared to be, due and
payable in the manner, upon the conditions and with the effect provided in the
Credit Agreement.
Maker promises to pay all fees, costs and expenses incurred in the
collection and enforcement of this Note in accordance with the terms of the
Credit Agreement. Maker and any endorser of this Note hereby consents to
renewals and extensions of time at or after the maturity hereof, without notice,
and hereby waive diligence, presentment, protest, demand and notice of every
kind (except such notices as may be expressly required under the Credit
Agreement or the other Loan Documents) and, to the full extent permitted by law,
the right to plead any statute of limitations as a defense to any demand
hereunder.
Whenever possible, each provision of this Note shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Note shall be prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Note.
IN WITNESS WHEREOF, Maker has caused this Note to be executed and
delivered by its duly authorized officer, as of the day and year first written
above.
EDUCATION REALTY OPERATING
PARTNERSHIP, LP, a Delaware limited
partnership
By: EDUCATION REALTY OP GP, INC.,
a Delaware corporation,
General Partner
By:____________________________________
Name:__________________________________
Title:_________________________________
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EDR TALLAHASSEE LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: EDR Tallahassee, LLC,
a Delaware limited liability company,
its general partner
By: EDR Tallahassee, Inc.,
a Delaware corporation, its
managing member
By:__________________________
Name:
Title:
EDR XXXXXX LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: EDR Xxxxxx, LLC,
a Delaware limited liability company,
its general partner
By: EDR Xxxxxx, Inc.,
a Delaware corporation, its
managing member
By:__________________________
Name:
Title:
D-3
EDR XXXXXXXX LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: EDR Xxxxxxxx, LLC,
a Delaware limited liability company,
its general partner
By: EDR Xxxxxxxx, Inc.,
a Delaware corporation, its
managing member
By:__________________________
Name:
Title:
EDR C STATION, LLC,
a Delaware limited liability company
By: Education Realty Operating
Partnership, LP, a Delaware limited
partnership, its managing member
By: Education Realty OP GP, Inc.,
a Delaware corporation, its
general partner
By:__________________________
Name:
Title:
D-4
EDR ATHENS I, LLC, a Delaware
limited liability company
By: Education Realty Trust, LLC,
a Delaware limited partnership, its
managing member
By:Education Realty Operating
Partnership, LP, a Delaware
limited liability company, its
managing member
By: Education Realty OP GP,
Inc., a Delaware corporation,
its general partner
By:__________________________
Name:
Title:
EDR TALLAHASSEE I, LLC, a
Delaware limited liability company
By: Education Realty Trust, LLC,
a Delaware limited liability company,
its managing member
By: Education Realty Operating
Partnership, LP, a Delaware
limited partnership,
its managing member
By: Education Realty OP GP, Inc.
a Delaware corporation, its
general partner
By:__________________________
Name:
Title:
D-5
CREDIT AGREEMENT
EXHIBIT E
[FORM OF] BORROWING REQUEST/INTEREST ELECTION REQUEST
[Date]
JPMorgan Chase Bank, N.A.
as Administrative Agent
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Manager, Real Estate Group
Re: Education Realty Operating Partnership, LP
Borrowing Request
Dear Ladies and Gentlemen:
This Borrowing Request is made with reference to that certain Credit
Agreement dated as of ________________, 2005 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Education
Realty Operating Partnership, LP and certain of its Subsidiaries (collectively,
the "Borrower"), the financial institutions party thereto, as lenders, and
JPMorgan Chase Bank, N.A., as Administrative Agent. All capitalized terms used
in this Borrowing Request (including any attachments hereto) and not otherwise
defined in this Borrowing Request shall have the meanings set forth for such
terms in the Credit Agreement. All Section references herein shall refer to the
Credit Agreement. This request is made by Education Realty Operating
Partnership, LP on behalf of the Borrower.
The Borrower hereby requests [check as applicable] [ ] a conversion of an
existing Loan as provided below and/or ? an advance under the Credit Agreement,
in the amount of $____________ [minimum of $1,000,000.00 and in multiples of
$100,000.00].
1. Aggregate Commitment $75,000,000.00
2. Maximum Loan Available Amount $_____________
3. The amount outstanding under the
Revolving Loans and Swingline Loans $_____________
4. LC Exposure $_____________
5. Available amount (lesser of 1 or 2, minus 3, minus 4) $_____________
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6. Less amount requested ($____________)
7. Amount remaining to be advanced $____________
8. Account for funding: _________________________
The advance or conversion is to be made as follows:
A. ABR Borrowing.
1. Amount of ABR Borrowing: $_____________
2. Date of ABR Borrowing _____________
B. Eurodollar Borrowing:
1. Amount of Eurodollar Borrowing: $_____________
2. Amount of conversion of existing
Loan to Eurodollar Borrowing: $_____________
3. Number of Eurodollar
Borrowing(s) now in effect: _____________
[cannot exceed six (6)]
4. Date of Eurodollar Rate Borrowing
or conversion: ______________
5. Interest Period: ______________
6. Expiration date of current Interest
Period as to this conversion: ______________
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The Borrower hereby represents and warrants that the amounts set forth
above are true and correct, that the amount above requested has actually been
incurred, that the representations and warranties contained in the Credit
Agreement are true and correct as if made as of this date (except to the extent
relating to a specific date), and that the Borrower has kept, observed,
performed and fulfilled each and every one of its obligations under the Credit
Agreement as of the date hereof [except as follows: _______________]
Very truly yours,
EDUCATION REALTY OPERATING
PARTNERSHIP, LP
By: EDUCATION REALTY OP GP, INC.,
General Partner
By:____________________________________
Name:__________________________________
Title:_________________________________
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