CREDIT AGREEMENT
Dated as of April 2, 1998
by and among
MGI PROPERTIES,
as Borrower,
THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 13.5(a),
as Lenders,
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Documentation Agent, Syndication Agent,
and as Arranger
and
BANKBOSTON, N.A.,
as Administrative Agent and as Co-Arranger
TABLE OF CONTENTS
Article I. Definitions 1
Section 1.1. Definitions. 1
Section 1.2. General; References to Times. 22
Article II. Credit Facility 22
Section 2.1. Revolving Loans. 22
Section 2.2. [Intentionally omitted]. 24
Section 2.3. Letters of Credit. 24
Section 2.4. Rates and Payment of Interest on Loans. 28
Section 2.5. Number of Interest Periods. 29
Section 2.6. Repayment of Loans. 29
Section 2.7. Prepayments. 30
Section 2.8. Continuation. 30
Section 2.9. Conversion 31
Section 2.10. Notes. 31
Section 2.11. [Intentionally Omitted.] 32
Section 2.12. Extension of Termination Date. 32
Section 2.13. Expiration or Maturity Date of Letters of
Credit Past Termination Date. 33
Section 2.14. Amount Limitations 34
Article III. Payments, Fees and Other General Provisions 34
Section 3.1. Payments. 34
Section 3.2. Pro Rata Treatment. 35
Section 3.3. Sharing of Payments, Etc. 35
Section 3.4. Several Obligations. 36
Section 3.5. Minimum Amounts. 36
Section 3.6. Fees. 37
Section 3.7. Computations. 38
Section 3.8. Usury. 38
Section 3.9. Agreement Regarding Interest and Charges. 38
Section 3.10. Statements of Account. 39
Section 3.11. Defaulting Lenders. 39
Section 3.12. Taxes. 40
Article IV. Unencumbered Pool Properties 42
Section 4.1. Acceptance of Unencumbered Pool Properties. 42
Section 4.2. Termination of Designation as Unencumbered
Pool Property. 43
Section 4.3. Additional Requirements of Unencumbered Pool
Properties. 44
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Article V. Yield Protection, Etc. 44
Section 5.1. Additional Costs; Capital Adequacy. 44
Section 5.2. Suspension of LIBOR Loans. 45
Section 5.3. Illegality. 46
Section 5.4. Compensation. 46
Section 5.5. Treatment of Affected Loans. 47
Section 5.6. Change of Lending Office. 48
Section 5.7. Assumptions Concerning Funding of LIBOR Loans. 48
Article VI. Conditions Precedent 48
Section 6.1. Initial Conditions Precedent. 48
Section 6.2. Conditions Precedent to All Loans and Letters
of Credit. 51
Article VII. Representations and Warranties 52
Section 7.1. Representations and Warranties. 52
Section 7.2. Survival of Representations and
Warranties, Etc. 58
Article VIII. Affirmative Covenants 59
Section 8.1. Preservation of Existence and Similar Matters. 59
Section 8.2. Compliance with Applicable Law and
Material Contracts. 59
Section 8.3. Maintenance of Property. 59
Section 8.4. Conduct of Business. 60
Section 8.5. Insurance. 60
Section 8.6. Payment of Taxes and Claims. 61
Section 8.7. Visits and Inspections. 61
Section 8.8. Use of Proceeds; Letters of Credit. 61
Section 8.9. Environmental Matters. 62
Section 8.10. Books and Records. 62
Section 8.11. REIT Status. 62
Section 8.12. Further Assurances. 62
Section 8.13. Additional Subsidiaries. 63
Section 8.14. Exchange Listing. 63
Article IX. Information 63
Section 9.1. Quarterly Financial Statements. 63
Section 9.2. Year-End Statements. 64
Section 9.3. Compliance Certificate. 64
Section 9.4. Other Information. 65
Article X. Negative Covenants 68
Section 10.1. Financial Covenants. 68
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Section 10.2. Indebtedness. 69
Section 10.3. Contingent Obligations. 70
Section 10.4. Permitted Investments. 70
Section 10.5. Liens; Agreements Regarding Liens;
Other Matters. 71
Section 10.6. Restricted Payments. 71
Section 10.7. Merger, Consolidation and Sales of Assets. 72
Section 10.8. No Plan Assets. 73
Section 10.9. Fiscal Year. 73
Section 10.10. Modifications to Material Contracts. 73
Section 10.11. Transactions with Affiliates. 73
Article XI. Default 74
Section 11.1. Events of Default. 74
Section 11.2. Remedies Upon Event of Default. 77
Section 11.3. Remedies Upon Certain Defaults. 78
Section 11.4. Allocation of Proceeds. 79
Section 11.5. Collateral Account. 79
Section 11.6. Performance by Administrative Agent. 80
Section 11.7. Rights Cumulative. 81
Section 11.8. Rescission of Acceleration by Requisite Lenders. 81
Article XII. The Administrative Agent 82
Section 12.1. Authorization and Action. 82
Section 12.2. Administrative Agent's Reliance, Etc. 83
Section 12.3. Notice of Defaults. 84
Section 12.4. BankBoston and ▇▇▇▇▇ Fargo as Lender. 84
Section 12.5. Approvals of Lenders. 84
Section 12.6. Lender Credit Decision, Etc. 85
Section 12.7. Indemnification of Agents. 86
Section 12.8. Successor Administrative Agent. 87
Section 12.9. Syndication and Documentation Agents. 87
Section 12.10. Approvals and Other Actions by Requisite
Lenders. 88
Article XIII. Miscellaneous 88
Section 13.1. Notices. 88
Section 13.2. Expenses. 90
Section 13.3. Setoff. 91
Section 13.4. Waiver of Jury Trial; Consent to Jurisdiction. 91
Section 13.5. Successors and Assigns. 92
Section 13.6. [Intentionally omitted] 94
Section 13.7. Amendments. 95
Section 13.8. Nonliability of Agents and Lenders. 96
Section 13.9. Confidentiality. 96
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Section 13.10. Indemnification. 96
Section 13.11. Termination; Survival. 99
Section 13.12. Severability of Provisions. 99
Section 13.13. GOVERNING LAW. 99
Section 13.14. Counterparts. 99
Section 13.15. Obligations with Respect to Loan Parties. 99
Section 13.16. Limitation of Liability. 100
Section 13.17. Entire Agreement. 100
Section 13.18. Construction. 100
Section 13.19. Time of Essence 101
Section 13.20. Notice of Claims; Claims Bar 101
SCHEDULE 1.1.A Loan Parties
SCHEDULE 4.1. Unencumbered Pool Properties
SCHEDULE 7.l.(b) Ownership Structure
SCHEDULE 7.1.(f) Ownership of Properties; Liens
SCHEDULE 7.1.(g) Indebtedness
SCHEDULE 7.1.(h) Material Contracts
SCHEDULE 7.1.(n) Environmental Laws
SCHEDULE 10.3 Contingent Obligations
SCHEDULE 10.4 Investments
EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B [Intentionally omitted]
EXHIBIT C Form of Guaranty
EXHIBIT D Form of Notice of Borrowing
EXHIBIT E Form of Notice of Continuation
EXHIBIT F Form of Notice of Conversion
EXHIBIT G [Intentionally omitted]
EXHIBIT H [Intentionally omitted]
EXHIBIT I [Intentionally omitted]
EXHIBIT J Form of Revolving Note
EXHIBIT K [Intentionally omitted]
EXHIBIT L Form of Extension Request
EXHIBIT M Form of Opinion of Counsel
EXHIBIT N Form of Compliance Certificate
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THIS CREDIT AGREEMENT dated as of the 2nd day of April, 1998 by and among
MGI PROPERTIES, a self-administered equity real estate investment trust formed
under the laws of the Commonwealth of Massachusetts (the "Borrower"), each of
the financial institutions initially a signatory hereto together with their
assignees pursuant to Section 13.5.(d), ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Syndication Agent (the "Syndication Agent"), as Documentation Agent (the
"Documentation Agent") and as Arranger, and BANKBOSTON, N.A., as Administrative
Agent (the "Administrative Agent") and as Co-Arranger (▇▇▇▇▇ Fargo Bank,
National Association and BankBoston, N.A. are together referred to as the
"Arrangers").
WHEREAS, the Lenders desire to make available to the Borrower a
$75,000,000.00 revolving credit facility, which will include a $10,000,000.00
letter of credit facility, on the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows
Article I. Definitions
Section 1.1. Definitions.
In addition to terms defined elsewhere herein, the following terms shall
have the following meanings for the purposes of this Agreement:
"Additional Costs" has the meaning given that term in Section 5.1.
"Adjusted Eurodollar Rate" means, with respect to each Interest Period for
any LIBOR Loan, the rate obtained by dividing (a) LIBOR for such Interest Period
by (b) a percentage equal to 1 minus the stated maximum rate (stated as a
decimal) of all reserves, if any, required to be maintained against
"Eurocurrency liabilities" as specified in Regulation D of the Board of
Governors of the Federal Reserve System (or against any other category of
liabilities which includes deposits by reference to which the interest rate on
LIBOR Loans is determined or any category of extensions of credit or other
assets which includes loans by an office of any Lender outside of the United
States of America to residents of the United States of America).
"Administrative Agent" means BankBoston, N.A., in its capacity as
contractual representative of the Lenders under the terms of this Agreement,
together with its successors.
"Affiliate" means any Person (other than the Agents or any Lender): (a)
directly or indirectly controlling, controlled by, or under common control
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with, the Borrower; (b) directly or indirectly owning or holding ten percent
(10.0%) or more of any equity interest in the Borrower; or (c) ten percent
(10.0%) or more of whose voting stock or other equity interest is directly or
indirectly owned or held by the Borrower. For purposes of this definition,
"control" (including with correlative meanings, the terms "controlling",
"controlled by" and "under common control with") means the possession directly
or indirectly of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities or
by contract or otherwise
"Agent" means any of the Administrative Agent, the Syndication Agent, the
Documentation Agent.
"Agreement Date" means the date as of which this Agreement is dated.
"Applicable Law" means all applicable provisions of constitutions, common
law, statutes, rules, regulations and orders of all Governmental Authorities and
all orders, determinations and decrees of all courts, tribunals and arbitrators
"Applicable Margin" means the respective percentages per annum determined,
at any time, based on the range into which the Borrower's Credit Rating then
falls, in accordance with the table set forth below. Any change in the
Borrower's Credit Rating which would cause it to move to a different range in
the table shall effect a change in the Applicable Margin on the Business Day
immediately following the date on which such change occurs. Notwithstanding any
other provision contained in this definition, during any period in which the
Borrower does not have a Credit Rating from both S&P and Moody's, the Applicable
Margin shall be percentage corresponding to Level 5 in the table. During any
period that the Borrower receives two Credit Ratings and such Credit Ratings
result in Applicable Margins corresponding to different Levels in the table, the
Applicable Margin shall be determined by the lower of such two Credit Ratings.
During any period that the Borrower receives more than two Credit Ratings and
such Credit Ratings are not equivalent, the Applicable Margin shall be
determined by the two of such Credit Ratings which are equivalent and if none of
such Credit Ratings are equivalent, then the highest of such Credit Ratings
shall be disregarded when determining the Applicable Margin.
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Borrower's Credit Applicable Applicable
Level Rating Margin for Margin for
(S&P/▇▇▇▇▇'▇ or LIBOR Loans Base Rate
equivalent) Loans
--------------------------------------------------------------------------------
1 A-/A3 or equivalent 0.80% 0.00%
2 BBB+/Baal or equivalent 0.90% 0.00%
3 BBB/Baa2 or equivalent 1.00% 0.00%
4 BBB-/Baa3 or equivalent 1.15% 0.00%
5 Lower than BBB-/Baa3 or 1.25% 0.00%
equivalent
--------------------------------------------------------------------------------
"Assignee" has the meaning given that term in Section 13.5.(d).
"Assignment and Acceptance Agreement" means an Assignment and Acceptance
Agreement among a Lender, an Assignee the Administrative Agent and the
Documentation Agent, substantially in the form of Exhibit A.
"BankBoston" means BankBoston, N.A., its successors and assigns.
"Base Rate" means the per annum rate of interest equal to the greater of
(a) the Prime Rate or (b) the Federal Funds Rate plus one-half of one percent
(0.5%). Any change in the Base Rate resulting from a change in the Prime Rate or
the Federal Funds Rate shall become effective as of 12:01 a.m. on the Business
Day on which each such change occurs. The Base Rate is a reference rate used by
the Administrative Agent in determining interest rates on certain loans and is
not intended to be the lowest rate of interest charged by the Administrative
Agent or any Lender on any extension of credit to any debtor.
"Base Rate Loan" means a Loan bearing interest at a rate based on the Base
Rate.
"Benefit Arrangement" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" has the meaning set forth in the introductory paragraph hereof
and shall include the Borrower's successors and assigns.
"Business Day" means (a) any day other than a Saturday, Sunday or other day
on which banks in Washington, D.C., San Francisco, California, or Boston,
Massachusetts are authorized or required to close and (b) with reference to a
LIBOR Loan, any such day that is also a day on which dealings in Dollar deposits
are carried out in the London interbank market.
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"Capitalization Rate" means ten percent (10.00%).
"Capitalized EBITDA" means, with respect to a Person and as of a given
date, (a)(i) such Person's EBITDA for the fiscal quarter most recently ended
times (ii) 4 divided by (b) the Capitalization Rate.
"Capitalized NOI" means, with respect to an Unencumbered Pool Property:
(a)(i)(A) the Net Operating Income of such Unencumbered Pool Property for the
fiscal quarter most recently ended times (B) 4 minus (ii) Replacement Reserves
determined for a four-quarter period divided by (b) the Capitalization Rate.
"Capital Stock" means any common stock, Preferred Stock, other capital
stock or other equity interest in a Person that is a corporation or a business
trust.
"Cash Equivalents" means: (a) securities issued, or fully guaranteed or
insured by the United States of America or any of its agencies with maturities
of not more than one year from the date acquired; (b) certificates of deposit
with maturities of not more than one year from the date acquired issued by a
United States federal or state chartered commercial bank of recognized standing,
which has capital and unimpaired surplus in excess of $500,000,000 and which
bank or its holding company has a short-term commercial paper rating of at least
A-2 or the equivalent by Standard & Poor's Rating Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc. ("S&P") or at least P-2 or the equivalent by ▇▇▇▇▇'▇ Investors
Services, Inc. ("Moody's"); (c) reverse repurchase agreements with terms of not
more than thirty (30) days from the date acquired, for securities of the type
described in clause (a) above and entered into only with commercial banks having
the qualifications described in clause (b) above; (d) commercial paper issued by
any Person incorporated under the laws of the United States of America or any
State thereof and rated at least A-2 or the equivalent thereof by S&P or at
least P-2 or the equivalent thereof by Moody's, in each case with maturities of
not more than one year from the date acquired; and (e) investments in money
market funds registered under the Investment Company Act of 1940, which have net
assets of at least $500,000,000 and at least eighty-five percent (85%) of whose
assets consist of securities and other obligations of the type described in
clauses (a) through (d) above.
"Collateral Account" means a special non-interest bearing deposit account
maintained at the Principal Office of the Administrative Agent and under its
sole dominion and control.
"Commitment" means, as to each Lender, such Lender's obligation to make
Revolving Loans pursuant to Section 2.1.(a) and to issue (in the case of
4
the Administrative Agent) or participate in (in the case of the other Lenders)
Letters of Credit pursuant to Section 2.3.(a) and 2.3.(i) respectively, in an
amount up to, but not exceeding (but in the case of the Administrative Agent
excluding the aggregate amount of participations in the Letters of Credit held
by other Lenders), the amount set forth for such Lender on its signature page
hereto as such Lender's "Initial Commitment Amount" or as set forth in the
applicable Assignment and Acceptance Agreement, or as appropriate to reflect any
assignments to or by such Lender effected in accordance with Section 13.6.
"Commitment Percentage" means, as to each Lender, the ratio, expressed as a
percentage, of (a) the amount of such Lender's Commitment to (b) the sum of the
aggregate amount of the Commitments of all Lenders hereunder; provided, however,
that if at the time of determination the Commitments have terminated or been
reduced to zero, the "Commitment Percentage" of each Lender shall be the
Commitment Percentage of such Lender in effect immediately prior to such
termination or reduction.
"Compliance Certificate" has the meaning given such term in Section 9.3.
"Construction in Process" means, with respect to a Real Property Asset
which is Under Construction, the aggregate, good faith estimated or, to the
extent incurred, the actual, cost of construction (including land acquisition
costs) for such Real Property Asset. Construction in Process shall not include
costs incurred for redevelopment of any Real Property Asset which has an
Occupancy Rate in excess of eighty percent (80%).
"Contingent Obligation" as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of that Person: (a) with respect to
any Indebtedness, lease, dividend or other obligation of another Person if the
primary purpose or intent of the Person incurring such liability, or the primary
effect thereof, is to provide assurance to the obligee of such liability that
such liability will be paid or discharged, or that any agreements relating
thereto will be complied with, or that the holders of such liability will be
protected (in whole or in part) against loss with respect thereto; (b) under
Interest Rate Agreements; or (c) under any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
that Person against fluctuations in currency values. Contingent Obligations
shall include (i) the direct or indirect guaranty, endorsement (other than for
collection or deposit in the ordinary course of business), comaking, discounting
with recourse or sale with recourse by such Person of the obligation of another,
(ii) the obligation to make, take or pay or similar payments if required
regardless of nonperformance by any other party or parties to an agreement, and
(iii) any liability of such Person for the obligations of another through any
agreement to purchase, repurchase or otherwise acquire such obligation or any
5
property constituting security therefor, to provide funds for the payment or
discharge of such obligation or to maintain the solvency, financial condition or
any balance sheet item or level of income of another. The amount of any
Contingent Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported or, if not a fixed and determined amount, the
maximum amount so guaranteed.
"Continue", "Continuation" and "Continued" each refers to the continuation
of a LIBOR Loan from one Interest Period to another Interest Period pursuant to
Section 2.8.
"Convert", "Conversion" and "Converted" each refers to the conversion of a
Loan of one Type into a Loan of another Type pursuant to Section 2.9.
"Credit Event" means any of the following: (a) the making (or deemed
making) of any Loan, (b) the Conversion of a Loan and (c) the issuance of a
Letter of Credit.
"Credit Rating" means the lowest rating assigned by a Rating Agency to each
series of rated senior unsecured and non-credit enhanced long term indebtedness
of the Borrower.
"Default" means any of the events specified in Section 11.1., whether or
not there has been satisfied any requirement for the giving of notice, the lapse
of time, or both.
"Defaulting Lender" has the meaning set forth in Section 3.11.
"Developed Property" means a Real Property Asset that is owned or leased by
the Borrower or any of its Subsidiaries and on which is located industrial,
office, office/research and development, retail or multifamily projects.
"Documentation Agent" has the meaning set forth in the introductory
paragraph hereof and shall include the Documentation Agent's successors and
assigns.
"Dollars" or "$" means the lawful currency of the United States of America.
"EBITDA" means, with respect to a Person and for a given period, as
determined in accordance with GAAP, on a consolidated basis, such Person's net
earnings (loss) for such period plus the sum of the following (to the extent
included in the calculation of net earnings (loss)): (a) depreciation and
amortization expense for such period plus (b) Interest Expense for such period
plus (c) income tax expense paid or accrued during such period plus
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(d) extraordinary losses, losses from sales of assets and losses resulting from
forgiveness by such Person of Indebtedness minus (e) extraordinary gains and
gains from sales of assets for such period plus (f) to the extent not redundant,
such Person's pro rata share of EBITDA of each Unconsolidated Affiliate of such
Person (determined in a manner consistent with this definition of EBITDA). In
determining EBITDA of the Borrower or any Subsidiary, EBITDA attributable to any
Real Property Asset acquired or disposed of during such period shall be
disregarded.
"Effective Date" means the later of: (a) the Agreement Date; and (b) the
date on which all of the conditions precedent set forth in Section 6.1. shall
have been fulfilled.
"Eligible Assignee" means any Person who is: (i) currently a Lender (or an
affiliate of a Lender); (ii) a commercial bank, trust company, insurance
company, savings and loan association, investment bank or pension fund organized
under the laws of the United States of America, or any state thereof, and having
total assets in excess of $10,000,000,000; or (iii) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development ("OECD"), or a political subdivision of any
such country, and having total assets in excess of $10,000,000,000, provided
that such bank is acting through a branch or agency located in the United States
of America. If such Person is not currently a Lender, such Person's senior
unsecured long term indebtedness must be rated BBB or higher by S&P, Baa2 or
higher by Moody's, or the equivalent or higher of either such rating by another
Rating Agency acceptable to the Administrative Agent and the Documentation
Agent. Notwithstanding the foregoing, if an Event of Default shall have occurred
and be continuing under Section 11.1.(a) or (b), the term "Eligible Assignee"
shall mean any Person that is not an individual and which is an "accredited
investor" (as defined in Regulation D under the Securities Act).
"Eligible Property" means a Real Property Asset which satisfies all of the
following requirements as determined by the Administrative Agent from time to
time: (a) such Real Property Asset is a Developed Property and is wholly owned
in fee simple by the Borrower or a Subsidiary; (b) neither such Real Property
Asset, nor any interest of the Borrower or such Subsidiary therein, is subject
to any Lien other than Permitted Liens or to any agreement (other than this
Agreement or any other Loan Document) that prohibits the creation of any Lien
thereon as security for Indebtedness; (c) such Real Property Asset has an
Occupancy Rate of greater than eighty percent (80%); and (d) such Real Property
Asset is free of all structural defects, title defects, environmental conditions
or other adverse matters except for defects, conditions or matters which when
considered individually and collectively are not material to the profitable
operation of such Real Property Asset.
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"Employee Benefit Plan" means any employee benefit plan within the meaning
of Section 3(3) of ERISA which (a) is maintained for employees of the Borrower,
any of its Subsidiaries or any of its other ERISA Affiliates or is assumed by
the Borrower, any of its Subsidiaries or any of its other ERISA Affiliates in
connection with any acquisition or other business combination or (b) has at any
time been maintained for the employees of the Borrower, any of its Subsidiaries
or any other current or former ERISA Affiliate.
"Environmental Laws" means any Applicable Law relating to environmental
protection or the manufacture, storage, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42 U.S.C.
ss. 7401 et seq; Federal Water Pollution Control Act, 33 U.S.C. ss. 1251 et
seq.; ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ U.S.C. ss. 6901 et seq.; Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. ss. 9601 et
seq.; National Environmental Policy Act, 42 U.S.C. ss. 4321 et seq.; regulations
of the Environmental Protection Agency and any applicable rule of common law and
any judicial interpretation thereof relating primarily to the environment or
Hazardous Materials.
"Equity Issuance" means any issuance or sale by a Person of its capital
stock or other similar equity interest, or any warrants, options or similar
rights to acquire, or securities convertible into or exchangeable for, such
capital stock or other similar equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as in
effect from time to time.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Event of Default" means any of the events specified in Section 11.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"Extension Request" has the meaning given that term in Section 2.12.
"Federal Funds Rate" means, for any day, the rate per annum (rounded upward
to the nearest 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such
8
day, provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day, and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate
quoted to the Administrative Agent by federal funds dealers selected by the
Administrative Agent on such day on such transaction as determined by the
Administrative Agent.
"Fees" means the fees and commissions provided for or referred to in
Section 3.6. and any other fees payable by the Borrower hereunder or under any
other Loan Document.
"Fixed Charges" means, with respect to a Person and for a given period, the
sum of (a) the Interest Expense of such Person for such period, plus (b) the
aggregate of all scheduled principal payments on Indebtedness made by such
Person during such period (excluding balloon, bullet or similar payments of
principal due upon the stated maturity of Indebtedness), plus (c) the aggregate
of all dividends paid or accrued by such Person on any Preferred Stock during
such period, (d) the Replacement Reserves for such period.
"Foreign Lender" means any Lender organized under the laws of a
jurisdiction other than the United States of America or a state thereof.
"Funds From Operations" means net income, computed in accordance with GAAP,
excluding minority interests, gains, or losses from debt restructurings and
sales of properties (inclusive of non-recurring items such as asset sales or
property valuation adjustments), plus real estate depreciation and amortization
expense, and after adjustments for Unconsolidated Affiliates. Adjustments for
Unconsolidated Affiliates will be calculated to reflect Funds From Operations on
the same basis. The foregoing definition of "Funds From Operations" shall be
modified from time to time to reflect changes in the definition promulgated by
the National Association of Real Estate Investment Trusts from time to time.
"GAAP" means accounting principles as promulgated from time to time in
statements, opinions and pronouncements by the American Institute of Certified
Public Accountants and the Financial Accounting Standards Board and in such
statements, opinions and pronouncements of such other entities with respect to
financial accounting of for-profit entities as shall be accepted by a
substantial segment of the accounting profession in the United States.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
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"Governmental Authority" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity (including, without limitation, the
Federal Deposit Insurance Corporation, the Comptroller of the Currency or the
Federal Reserve Board, any central bank or any comparable authority) or any
arbitrator with authority to bind a party at law.
"Gross Asset Value" means, at a given time, the sum (without duplication of
any item) of (a) the Capitalized EBITDA of the Borrower and its Subsidiaries
determined on a consolidated basis, plus (b) all cash and Cash Equivalents of
the Borrower and its Subsidiaries determined on a consolidated basis at such
time (excluding tenant deposits and other cash and Cash Equivalents, the
disposition of which by the Borrower or a Subsidiary, as applicable, is
restricted in any way (excluding restrictions in the nature of early withdrawal
penalties)), plus (c) with respect to any Real Property Asset acquired during
the fiscal quarter most recently ending, the undepreciated purchase price paid
for such Real Property Asset (less any amounts paid to the Borrower or any
Subsidiary as a purchase price adjustment, held in escrow, retained as a
contingency reserve, or other similar arrangements).
"Guarantor" means a Material Subsidiary which owns an Unencumbered Pool
Property.
"Hazardous Materials" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity or
"TLCP" toxicity, "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c)
any flammable substances or explosives or any radioactive materials; and (d)
asbestos in any form or (e) electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million.
"Indebtedness" means, with respect to a Person, at the time of computation
thereof, all of the following (without duplication): (a) obligations of such
Person in respect of money borrowed; (b) obligations of such Person (other than
trade debt incurred in the ordinary course of business and paid in full within
sixty (60) days), whether or not for money borrowed (i) represented by notes
payable, or drafts accepted, in each case representing extensions of credit,
(ii) evidenced by bonds, debentures, notes or similar instruments, or
10
(iii) constituting purchase money indebtedness, conditional sales contracts,
title retention debt instruments or other similar instruments, upon which
interest charges are customarily paid or that are issued or assumed as full or
partial payment for property; (c) capital lease obligations of such Person; (d)
all reimbursement obligations of such Person under any letters of credit or
acceptances (whether or not the same have been presented for payment); and (e)
all Indebtedness of other Persons which (i) such Person has guarantied or is
otherwise recourse to such Person or (ii) are secured by a Lien on any property
of such Person.
"Intellectual Property" has the meaning given that term in Section 7.1.(t).
"Interest Expense" means, with respect to a Person and for any period, (a)
the total consolidated interest expense (including, without limitation,
capitalized interest expense) of such Person and in any event shall include all
interest expense with respect to any Indebtedness in respect of which such
Person is wholly or partially liable under repayment, interest carry or
performance guaranties or other liabilities, plus (b) such Person's
proportionate share of all paid, accrued or capitalized interest expense for
such period of Unconsolidated Affiliates of such Person.
"Interest Period" means with respect to any LIBOR Loan, each period
commencing on (and including) the date such LIBOR Loan is made or the last day
of the next preceding Interest Period for such Loan and ending on (but
excluding) the numerically corresponding day in the first, second, third or
sixth calendar month thereafter, as the Borrower may select in a Notice of
Borrowing, Notice of Continuation or Notice of Conversion, as the case may be,
except that each Interest Period that commences on the last Business Day of a
calendar month (or on any day for which there is no numerically corresponding
day in the appropriate subsequent calendar month) shall end on the last Business
Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period would otherwise
end after the Termination Date, such Interest Period shall end on the
Termination Date; (ii) each Interest Period that would otherwise end on a day
which is not a Business Day shall end on the next succeeding Business Day (or,
if such next succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day); and (iii) notwithstanding the
immediately preceding clause (i), no Interest Period for any LIBOR Loan shall
have a duration of less than one month and, if the Interest Period for any LIBOR
Loan would otherwise be a shorter period, such Loan shall not be available
hereunder for such period.
11
"Interest Rate Agreement" means any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar contractual
agreement or arrangement entered into with a nationally recognized financial
institution then having an Investment Grade Rating for the purpose of protecting
against fluctuations in interest rates.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
"Investment" means, with respect to any Person and whether or not such
investment constitutes a controlling interest in such Person: (a) the purchase
or other acquisition of any share of capital stock or other equity interest,
evidence of Indebtedness or other security issued by any other Person; (b) any
loan, advance or extension of credit to, or contribution to the capital of, any
other Person; (c) any guaranty of the Indebtedness of any other Person; (d) the
subordination of any claim against a Person to other Indebtedness of such
Person; and (e) any other investment in any other Person.
"Investment Grade Rating" means a Credit Rating of BBB- or higher by S&P,
Baa3 or higher by ▇▇▇▇▇'▇, or the equivalent or higher of either such rating by
another Rating Agency.
"L/C Commitment Amount" equals $10,000,000.
"Lender" means each financial institution from time to time party hereto as
a "Lender", together with its respective successors and assigns.
"Lending Office" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto or in the
applicable Assignment and Acceptance Agreement, or such other office of such
Lender as such Lender may notify the Administrative Agent in writing from time
to time.
"Letter of Credit" has the meaning set forth in Section 2.3.(a).
"Letter of Credit Documents" means, with respect to any Letter of Credit,
collectively, any application therefor, any certificate or other document
presented in connection with a drawing under such Letter of Credit and any other
agreement, instrument or other document governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations.
"Letter of Credit Liabilities" shall mean, without duplication, at any time
and in respect of any Letter of Credit, the sum of (a) the Stated Amount of such
Letter of Credit plus (b) the aggregate unpaid principal amount of all
12
Reimbursement Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Lender (other than the Administrative Agent in its capacity as
such) shall be deemed to hold a Letter of Credit Liability in an amount equal to
its participation interest in the related Letter of Credit under Section
2.3.(i), and the Administrative Agent shall be deemed to hold a Letter of Credit
Liability in an amount equal to its retained interest in the related Letter of
Credit after giving effect to the acquisition by the Lenders other than the
Administrative Agent of their participation interests under such Section.
"LIBOR" means, for any LIBOR Loan for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/16 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "LIBOR Rate" shall mean, for any LIBOR Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/16 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided, however, if more than
one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates.
"LIBOR Loans" means Loans bearing interest at a rate based on LIBOR.
"Lien" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge,
lien, charge, ground lease, conditional sale or other title retention agreement,
or other security title or encumbrance of any kind in respect of any property of
such Person, or upon the income or profits therefrom; (b) any arrangement,
express or implied, under which any property of such Person is transferred,
sequestered or otherwise identified for the purpose of subjecting the same to
the payment of Indebtedness or performance of any other obligation in priority
to the payment of the general, unsecured creditors of such Person; (c) the
filing of any financing statement under the Uniform Commercial Code or its
equivalent in any jurisdiction and (d) any agreement by such Person to grant,
give, or otherwise convey any of the foregoing.
"Loan" means a Revolving Loan.
"Loan Availability" has the meaning given to that term in Section 2.1 (a)
hereof.
13
"Loan Document" means this Agreement, each Note, each Letter of Credit
Document, each Guaranty and each other document or instrument now or hereafter
executed and delivered by a Loan Party in connection with, pursuant to or
relating to this Agreement.
"Loan Party" means each of the Borrower and each other Person who
guarantees all or a portion of the Obligations and/or who pledges any collateral
security to secure all or a portion of the Obligations. Schedule 1.1.(A) sets
forth the Loan Parties in addition to the Borrower as of the Agreement Date.
"Loans Receivable" means loans receivable owing to the Borrower or any
Subsidiary which are not subject to any Lien.
"Material Adverse Effect" means a materially adverse effect on (a) the
combined business, assets, liabilities, financial condition, results of
operations or business prospects of the Borrower and its Subsidiaries, taken as
a whole, (b) the ability of the Borrower or any other Loan Party to perform its
obligations under any Loan Document to which it is a party, (c) the validity or
enforceability of any of the Loan Documents, (d) the rights and remedies of the
Lenders, the Administrative Agent and the Documentation Agent under any of such
Loan Documents or (e) the timely payment of the principal of or interest on the
Loans or other amounts payable in connection therewith. Except with respect to
representations made or deemed made by any Loan Party in any of the other Loan
Documents to which it is a party, all determinations of materiality shall be
made by the Requisite Lenders in their reasonable judgment unless expressly
provided otherwise.
"Material Contract" means any contract or other arrangement (other than
Loan Documents), whether written or oral, to which the Borrower or any other
Loan Party is a party as to which the breach, nonperformance, cancellation or
failure to renew by any party thereto could have a Material Adverse Effect,
excluding, however, leases covering less than 26,000 square feet of space and
operational and maintenance agreements entered into in the ordinary course of
business pursuant to an arm's length transaction.
"Material Plan" means, at any time, a Plan or Plans having aggregate
Unfunded Liabilities in excess of $500,000.00.
"Material Subsidiary" means any Subsidiary of the Borrower which (a) owns,
or otherwise has any interest in, any Unencumbered Pool Property or any other
property or asset which is taken into account when calculating Unencumbered
Asset Value; (b) has total assets greater than or equal to ten percent (10%) of
the total assets of the Borrower and its Subsidiaries determined on a
consolidated basis (calculated as of the fiscal quarter most recently ending) or
(c) has net earnings greater than or equal to ten percent
14
(10.0%) of the net earnings of the Borrower and its Subsidiaries determined on a
consolidated basis.
"Moody's" means ▇▇▇▇▇'▇ Investors Services, Inc.
"Mortgage" means a mortgage, deed of trust, deed to secure debt or similar
security instrument made or to be made by a Person owning an interest in real
property granting a Lien on such interest in real property as security for the
payment of Indebtedness.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Net Operating Income" means, for any Unencumbered Pool Property and for a
given period, the sum of the following (without duplication): (a) rents and
other revenues received in the ordinary course from such Unencumbered Pool
Property (excluding pre-paid rents and revenues and security deposits except to
the extent applied in satisfaction of tenants' obligations for rent) minus (b)
all expenses paid or accrued related to the ownership, operation, leasing or
maintenance of such Unencumbered Pool Property, including but not limited to
taxes, assessments and other similar charges, insurance, utilities, payroll
costs, maintenance, repair and landscaping expenses, marketing expenses, and
general and administrative expenses, (including an appropriate allocation for
legal, accounting, advertising, marketing and other expenses incurred in
connection with such Unencumbered Pool Property, but specifically excluding
general overhead expenses of the Borrower and any property management fees)
minus (c) the Replacement Reserves for such Unencumbered Pool Property minus (d)
the greater of (i) the actual property management fee paid during such period
with respect to such Unencumbered Pool Property and (ii) an imputed management
fee in the amount of three and one-half percent (3.5%) of the gross revenues for
such Unencumbered Pool Property for such period.
"Net Proceeds" means, with respect to an Equity Issuance by a Person, the
aggregate amount of all cash received by such Person in respect of such Equity
Issuance net of investment banking fees, legal fees, accountants fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred by such Person in connection with such Equity Issuance.
"Note" means a Revolving Note.
15
"Notice of Borrowing" means a notice in the form of Exhibit D to be
delivered to the Administrative Agent pursuant to Section 2.1.(b) evidencing the
Borrower's request for a borrowing of Revolving Loans.
"Notice of Continuation" means a notice in the form of Exhibit E to be
delivered to the Administrative Agent pursuant to Section 2.8. evidencing the
Borrower's request for the Continuation of a LIBOR Loan.
"Notice of Conversion" means a notice in the form of Exhibit F to be
delivered to the Administrative Agent pursuant to Section 2.9. evidencing the
Borrower's request for the Conversion of a Loan from one Type to another Type.
"Obligations" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, all Loans; (b) all
Reimbursement Obligations and all other Letter of Credit Liabilities; and (c)
all other indebtedness, liabilities, obligations, covenants and duties of the
Borrower and the other Loan Parties owing to the Administrative Agent, the
Documentation Agent or any Lender of every kind, nature and description, under
or in respect of this Agreement or any of the other Loan Documents, including,
without limitation, the Fees and indemnification obligations, whether direct or
indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, and whether or not evidenced by any promissory note.
"Occupancy Rate" means, with respect to a Real Property Asset, the ratio,
expressed as a percentage, of (a) the net rentable square footage of such Real
Property Asset actually occupied by tenants currently paying full rent pursuant
to binding leases to (b) the aggregate net rentable square footage of such Real
Property Asset for such fiscal quarter.
"Participant" has the meaning given that term in Section 13.5.(c).
"Payment Date" has the meaning given that term in Section 2.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Permitted Liens" means, as to any Person: (a) Liens securing taxes,
assessments and other charges or levies imposed by any Governmental Authority
(excluding any Lien imposed pursuant to any of the provisions of ERISA) or the
claims of materialmen, mechanics, carriers, warehousemen or landlords for labor,
materials, supplies or rentals incurred in the ordinary course of business,
which are not at the time required to be paid or discharged under Section 8.6.;
(b) Liens consisting of deposits or pledges made, in the ordinary course of
business, in connection with, or to secure payment of,
16
obligations under workmen's compensation, unemployment insurance or similar
Applicable Laws; (c) Liens consisting of encumbrances in the nature of zoning
restrictions, easements, and rights or restrictions of record on the use of real
property, and defects or irregularities in title thereto which in each instance
do not materially detract from the value of such property or materially impair
the use thereof in the business of such Person; (d) Liens in existence as of the
Agreement Date and set forth in Schedule 7.1.(f) and other liens to secure
Indebtedness permitted by Section 10.2(b); (e) Liens in favor of the Borrower on
all or any part of the assets of Subsidiaries of the Borrower securing
Indebtedness owing by such Subsidiary to the Borrower; and (f) Liens in favor of
the Administrative Agent for the benefit of the Lenders.
"Person" means an individual, corporation, partnership, limited liability
company, association, trust or unincorporated organization, or a government or
any agency or political subdivision thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Post-Default Rate" means, in respect of any principal of any Loan or any
other Obligation that is not paid when due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum equal to four percent (4.0%) plus the Base Rate as in effect from time to
time.
"Preferred Stock" means, with respect to any Person, shares of capital
stock of, or other equity interests in, such Person which are entitled to
preference or priority over any other capital stock of, or other equity interest
in, such Person in respect of the payment of dividends or distribution of assets
upon liquidation or both.
"Prime Rate" means the rate of interest per annum announced publicly by the
Administrative Agent at its principal office in Boston, Massachusetts as its
base rate from time to time. The Prime Rate is not necessarily the best or the
lowest rate of interest offered by the Administrative Agent or any Lender.
"Principal Office" means the office of the Administrative Agent located at
Boston, Massachusetts, or such other office of the Administrative Agent as the
Administrative Agent may designate from time to time.
17
"Quarterly Date" means the last Business Day of February, May, August and
November in each year, the first of which shall be May 29, 1998.
"Rating Agency" means S&P, Moody's or any other nationally recognized
securities rating agency selected by the Borrower and acceptable to the
Arrangers.
"Real Property Assets" means the real property assets currently owned in
whole or in part by the Borrower or any Subsidiary and listed on Schedule
7.l.(f), as such Schedule may be modified from time to time to reflect sales,
transfers, assignments, conveyances, development, acquisitions and purchases of
real property assets.
"Register" has the meaning given that term in Section 13.5.(e).
"Regulatory Change" means, with respect to any Lender, any change effective
after the Agreement Date in Applicable Law (including without limitation,
Regulation D of the Board of Governors of the Federal Reserve System) or the
adoption or making after such date of any interpretation, directive or request
applying to a class of banks, including such Lender, of or under any Applicable
Law (whether or not having the force of law and whether or not failure to comply
therewith would be unlawful) by any Governmental Authority or monetary authority
charged with the interpretation or administration thereof or compliance by any
Lender with any request or directive regarding capital adequacy.
"Reimbursement Obligation" means the absolute, unconditional and
irrevocable obligation of the Borrower to reimburse the Administrative Agent for
any drawing honored by the Administrative Agent under a Letter of Credit.
"REIT" means a Person qualifying for treatment as a "real estate investment
trust" under the Internal Revenue Code.
"Replacement Reserves" means, for any period and with respect to any Real
Property Asset, an amount equal to (a) $200 per multi-family residential unit
per annum and (h) $0.50 per square foot for Developed Property other than
multifamily projects per annum. If the term Replacement Reserves is used without
reference to any specific Real Property Asset, then it shall be determined on an
aggregate basis with respect to all Real Property Assets and a proportionate
share of all real property of all Unconsolidated Affiliates.
"Requisite Lenders" means, as of any date, not less than two (2) Lenders
(provided that there are not less than two (2) non-Defaulting Lenders) having at
least 63-1/3% of the aggregate amount of the Commitments held by
18
non-Defaulting Lenders, or, if the Commitments have been terminated or reduced
to zero, not less than two (2) Lenders (provided that there are not less than
two (2) non-Defaulting Lenders) holding at least 63-1/3% of the principal amount
of the Loans and Letter of Credit Liabilities held by non-Defaulting Lenders.
"Restricted Payment" means: (a) any dividend or other distribution, direct
or indirect, on account of any shares of any class of stock or other equity
interest of the Borrower or any of its Subsidiaries now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock
to the holders of that class; (b) any redemption, conversion, exchange,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of stock or other equity
interest of the Borrower or any of its Subsidiaries now or hereafter
outstanding; and (c) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of stock of the Borrower or any of its Subsidiaries now or hereafter
outstanding; provided, however, the Borrower may during the term of this
Agreement redeem, retire and purchase up to $5,000,000.00 of equity interests of
the Borrower or any of its Subsidiaries, including, without limitation, pursuant
to dividend reinvestment plans, stock or option plans.
"Revolving Loan" means a loan made by a Lender to the Borrower pursuant to
Section 2.1.
"Revolving Note" has the meaning given that term in Section 2.l0.(a).
"Secured Indebtedness" means, with respect to any Person, any Indebtedness
of such Person that is secured in any manner by any Lien, and shall include such
Person's pro rata share of the Secured Indebtedness of any of such Person's
Unconsolidated Affiliates.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, together with all rules and regulations issued thereunder.
"Shareholder's Equity" means, for a Person at any given time, such Person's
shareholder's equity determined on a consolidated basis in accordance with GAAP,
as reported on the Borrower's most recent quarterly consolidated balance sheet
as of the end of such quarter.
"Solvent" means, when used with respect to any Person, that (a) the fair
value and the fair salable value of its assets (excluding any Indebtedness due
from any affiliate of such Person) are each in excess of the fair valuation of
its total liabilities (including all contingent liabilities); and (b) such
Person is able to pay its debts or other obligations in the ordinary course as
they mature and
19
(c) that the Person has capital not unreasonably small to carry on its business
and all business in which it proposes to be engaged.
"Stated Amount" means the amount available to be drawn by a beneficiary
under a Letter of Credit from time to time, as such amount may be increased or
reduced from time to time in accordance with the terms of such Letter of Credit.
"S&P" means Standard & Poor's Rating Group, a division of ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"Subordinated Debt" means Indebtedness of the Borrower or any of its
Subsidiaries that is subordinated in right of payment and otherwise to the Loans
and the other Obligations in a manner satisfactory to the Requisite Lenders in
their sole and absolute discretion.
"Subsidiary" means, for any Person, any corporation, partnership or other
entity of which at least a majority of the securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions of such
corporation, partnership or other entity (without regard to the occurrence of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person. "Wholly Owned Subsidiary" means any such
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are so owned or controlled.
"Taxes" has the meaning given that term in Section 3.12.
"Termination Date" means March 26, 2001.
"Total Liabilities" means, as to any Person and as of a given date, all
liabilities which would, in conformity with GAAP, be properly classified as a
liability on the consolidated balance sheet of such Person as at such date, and
in any event shall include (without duplication): (a) all Indebtedness of such
Person; (b) all accounts payable of such Person; (c) all accrued expenses of
such Person; (d) all Contingent Obligations of such Person; and (e) such
Person's proportionate share of the Total Liabilities of any Unconsolidated
Affiliate of such Person.
"Type" with respect to any Loan, refers to whether such Loan is a LIBOR
Loan or Base Rate Loan.
20
"Unconsolidated Affiliate" shall mean, with respect to any Person, any
other Person in whom such Person holds an Investment, which Investment is
accounted for in the financial statements of such Person on an equity basis of
accounting 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.
"Under Construction" means, with respect to a Real Property Asset, that
construction of improvements has begun (as evidenced by foundation excavation)
on such Real Property Asset but has not yet been completed (as such completion
shall be evidenced by the issuance of a certificate of occupancy or its
equivalent after completion of all budgeted amenities).
"Unencumbered Asset Value" means the sum of (a) the Capitalized NOI for
each Unencumbered Pool Property owned by the Borrower during the fiscal quarter
most recently ending, plus (b) the undepreciated purchase price paid for any
Unencumbered Pool Property acquired by the Borrower during the fiscal quarter
most recently ending (less any amounts paid to the Borrower as a purchase price
adjustment, held in escrow, retained as a contingency reserve, or other similar
arrangements). For purposes of determining the Unencumbered Asset Value, if the
Capitalized NOI of an Unencumbered Pool Property exceeds twenty percent (20%) of
the aggregate amount of the Capitalized NOI of all Unencumbered Pool Properties
included in Unencumbered Asset Value under the immediately preceding clause (a),
such excess shall be excluded from Unencumbered Asset Value.
"Unencumbered Pool Properties" means those Eligible Properties that have
been approved pursuant to Article IV.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Unsecured Indebtedness" means, with respect to a Person, all Indebtedness
of such Person that is not Secured Indebtedness.
"Unused Fee" has the meaning given that term in Section 3.6(a).
21
"Weighted Average Occupancy Rate" means the weighted average Occupancy Rate
for all of the Unencumbered Pool Properties.
"▇▇▇▇▇ Fargo" means ▇▇▇▇▇ Fargo Bank, National Association and its
successors and assigns.
Section 1.2. General; References to Times.
Unless otherwise indicated, all accounting terms, ratios and measurements
shall be interpreted or determined in accordance with GAAP applied on a basis
consistent (except for changes concurred in by the Borrower's independent public
accountants) with the most recent audited consolidated financial statements of
the Borrower and its Subsidiaries delivered to the Lenders pursuant to the terms
of this Agreement. References in this Agreement to "Sections", "Articles",
"Exhibits" and "Schedules" are to sections, articles, exhibits and schedules
herein and hereto unless otherwise indicated. References in this Agreement to
any document, instrument or agreement (a) shall include all exhibits, schedules
and other attachments thereto, (b) shall include all documents, instruments or
agreements issued or executed in replacement thereof, to the extent permitted
hereby and (c) shall mean such document, instrument or agreement, or replacement
or predecessor thereto, as amended, supplemented, restated or otherwise modified
from time to time to the extent permitted hereby and in effect at any given
time. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Unless explicitly set forth to the
contrary, a reference to "Subsidiary" means a Subsidiary of the Borrower or a
Subsidiary of such Subsidiary and a reference to an `Affiliate" means a
reference to an Affiliate of the Borrower. Titles and captions of Articles,
Sections, subsections and clauses in this Agreement are for convenience only,
and neither limit nor amplify the provisions of this Agreement. Unless otherwise
indicated, all references to time are references to Boston, Massachusetts time.
Article II. Credit Facility
Section 2.1. Revolving Loans.
(a) Generally. Subject to the terms and conditions hereof, during the
period from the Effective Date to but excluding the Termination Date and except
as otherwise set forth in Section 2.12(c), each Lender severally and not jointly
agrees to make Revolving Loans to the Borrower in an aggregate principal amount
at any one time outstanding up to, but not exceeding, the amount of such
Lender's Commitment; provided, however, that in no event shall the aggregate
principal amount of all outstanding Revolving Loans, together with
22
the aggregate amount of all Letter of Credit Liabilities, exceed the aggregate
amount of the Commitments as in effect from time to time. Subject to the terms
and conditions of this Agreement, during the period from the Effective Date to
but excluding the Termination Date, the Borrower may borrow, repay and reborrow
Revolving Loans hereunder. Notwithstanding the foregoing, in no event shall
Lenders be obligated to make advances which in the aggregate exceed the lesser
of (a) Loan Availability as determined by Administrative Agent from time to time
or (b) the Commitment. For any period of determination, "Loan Availability"
shall equal (i) the Unencumbered Asset Value divided by 1.75, less (ii)
Borrower's Unsecured Indebtedness.
(b) Requesting Revolving Loans. The Borrower shall give the Administrative
Agent notice pursuant to a Notice of Borrowing or telephonic notice of each
borrowing of Revolving Loans. Each Notice of Borrowing shall be delivered to the
Administrative Agent before 12:00 noon (i) in the case of LIBOR Loans, on the
date three Business Days prior to the proposed date of such borrowing and (ii)
in the case of Base Rate Loans, one Business Day prior to the proposed date of
such borrowing. Any such telephonic notice shall include all information to be
specified in a written Notice of Borrowing and shall be promptly confirmed in
writing by the Borrower pursuant to a Notice of Borrowing sent to the
Administrative Agent by telecopy on the same day of the giving of such
telephonic notice. The Administrative Agent will transmit by telecopy the Notice
of Borrowing (or the information contained in such Notice of Borrowing) to each
Lender promptly upon receipt by the Administrative Agent. Each Notice of
Borrowing or telephonic notice of each borrowing shall be irrevocable once given
and binding on the Borrower.
(c) Disbursements of Revolving Loan Proceeds. No later than 3:00 p.m. on
the date specified in the Notice of Borrowing, each Lender will make available
for the account of its applicable Lending Office to the Administrative Agent at
the Principal Office, in immediately available funds, the proceeds of the
Revolving Loan to be made by such Lender. With respect to Revolving Loans to be
made after the Effective Date, unless the Administrative Agent shall have been
notified by any Lender prior to the specified date of borrowing that such Lender
does not intend to make available to the Administrative Agent the Revolving Loan
to be made by such Lender on such date, the Administrative Agent may assume that
such Lender will make the proceeds of such Revolving Loan available to the
Administrative Agent on the date of the requested borrowing as set forth in the
Notice of Borrowing and the Administrative Agent may (but shall not be obligated
to), in reliance upon such assumption, make available to the Borrower the amount
of such Revolving Loan to be provided by such Lender. Subject to satisfaction of
the applicable conditions set forth in Article VI for such borrowing, the
Administrative Agent will make the proceeds of such borrowing available to the
Borrower no later than 4:00 p.m. on the date and at the account specified by the
Borrower in such Notice of Borrowing.
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Section 2.2 [Intentionally omitted.]
Section 2.3. Letters of Credit.
(a) Letters of Credit. Subject to the terms and conditions of this
Agreement, the Administrative Agent, on behalf of the Lenders, agrees to issue
for the account of the Borrower during the period from and including the
Effective Date to, but excluding, the date sixty (60) days prior to the
Termination Date one or more letters of credit (each a "Letter of Credit") up to
a maximum aggregate Stated Amount at any one time outstanding not to exceed the
L/C Commitment Amount.
(b) Terms of Letters of Credit. At the time of issuance, the amount, form,
terms and conditions of each Letter of Credit, and of any drafts or acceptances
thereunder, shall be subject to approval by the Administrative Agent and the
Borrower. Notwithstanding the foregoing, in no event may the expiry date of any
Letter of Credit extend beyond the date thirty (30) days prior to the
Termination Date, and any Letter of Credit containing an automatic renewal
provision shall also contain a provision pursuant to which, notwithstanding any
other provisions thereof, it shall have a final expiry date no later than the
date thirty (30) days prior to the Termination Date.
(c) Requests for Issuance of Letters of Credit. The Borrower shall give the
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) at least three Business Days prior to the requested date of issuance of
a Letter of Credit, such notice to describe in reasonable detail the proposed
terms of such Letter of Credit and the nature of the transactions or obligations
proposed to be supported by such Letter of Credit, and in any event shall set
forth with respect to such Letter of Credit (i) the proposed initial Stated
Amount, (ii) the beneficiary or beneficiaries, (iii) whether such Letter of
Credit is a commercial or standby letter of credit and (iv) the proposed expiry
date. The Borrower shall also execute and deliver such customary letter of
credit application forms as requested from time to time by the Administrative
Agent. Provided the Borrower has given the notice prescribed by Section 2.3.(a)
and subject to Section 2.14. and the other terms and conditions of this
Agreement, including the satisfaction of any applicable conditions precedent set
forth in Article VI., the Administrative Agent shall issue the requested Letter
of Credit on the requested date of issuance. Upon the written request of the
Borrower, the Administrative Agent shall deliver to the Borrower a copy of (x)
any Letter of Credit proposed to be issued hereunder prior to the issuance
thereof and (y) each issued Letter of Credit within a reasonable time after the
date of issuance thereof. To the extent any term of a Letter of Credit Document
is inconsistent with a term of any Loan Document, the term of such Loan Document
shall control.
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(d) Reimbursement Obligations. Upon receipt by the Administrative Agent
from the beneficiary of a Letter of Credit of any demand for payment under such
Letter of Credit, the Administrative Agent shall promptly notify the Borrower of
the amount to be paid by the Administrative Agent as a result of such demand and
the date on which payment is to be made by the Administrative Agent to such
beneficiary in respect of such demand. The Borrower hereby unconditionally and
irrevocably agrees to pay and reimburse the Administrative Agent for the amount
of each demand for payment under such Letter of Credit on or prior to the date
on which payment is to be made by the Administrative Agent to the beneficiary
thereunder, without presentment, demand, protest or other formalities of any
kind. Upon receipt by the Administrative Agent of any payment in respect of any
Reimbursement Obligation, the Administrative Agent shall promptly pay to each
Lender that has acquired a participation therein under the second sentence of
Section 2.3.(i) such Lender's Commitment Percentage of such payment.
(e) Manner of Reimbursement. Upon its receipt of a notice referred to in
the immediately preceding subsection (d), the Borrower shall advise the
Administrative Agent whether or not the Borrower intends to borrow hereunder to
finance its obligation to reimburse the Administrative Agent for the amount of
the related demand for payment and, if it does, the Borrower shall submit a
timely Notice of Borrowing as provided in Section 2.1.(b) in the case of the
borrowing of Revolving Loans. If the Borrower fails to so advise the
Administrative Agent, or if the Borrower fails to reimburse the Administrative
Agent for a demand for payment under a Letter of Credit by the date of such
payment, then (i) if the applicable conditions contained in Article VI. would
permit the making of Revolving Loans, the Borrower shall be deemed to have
requested a borrowing of Revolving Loans (which shall be Base Rate Loans) in an
amount equal to the unpaid Reimbursement Obligation and the Administrative Agent
shall give each Lender prompt notice of the amount of the Revolving Loan (which
shall not be subject to the limitations of Section 2.14(a)) to be made by such
Lender, the proceeds of which such Lender shall make available to the
Administrative Agent not later than 3:00 p.m. and (ii) if such conditions would
not permit the making of Revolving Loans, the provisions of subsection (j) of
this Section shall apply.
(f) Effect of Letters of Credit on Commitments. Upon the issuance by the
Administrative Agent of any Letter of Credit and until such Letter of Credit
shall have expired or been terminated, the Commitment of each Lender shall be
deemed to be utilized for all purposes of this Agreement in an amount equal to
such Lender's Commitment Percentage of the Stated Amount of such Letter of
Credit plus any related Reimbursement Obligations then outstanding.
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(g) Administrative Agent's Duties Regarding Letters of Credit:
Unconditional Nature of Reimbursement Obligation. In examining documents
presented in connection with drawings under Letters of Credit and making
payments under such Letters of Credit against such documents, the Administrative
Agent shall use the same standard of care as it uses in connection with
examining documents presented in connection with drawings under letters of
credit in which it has not sold participations and making payments under such
letters of credit. The Borrower assumes all risks of the acts and omissions of,
or misuse of the Letters of Credit by, the respective beneficiaries of such
Letters of Credit. In furtherance and not in limitation of the foregoing,
neither the Administrative Agent nor any of the Lenders shall be responsible for
(i) the form, validity, sufficiency, accuracy, genuineness or legal effects of
any document submitted by any party in connection with the application for and
issuance of or any drawing honored under any Letter of Credit even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit, or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) failure
of the beneficiary of any Letter of Credit to comply fully with conditions
required in order to draw upon such Letter of Credit; (iv) errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telex, telecopy or otherwise, whether or not they be in cipher; (v)
errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit, or of the proceeds thereof; (vii) the misapplication
by the beneficiary of any such Letter of Credit, or the proceeds of any drawing
under such Letter of Credit; or (viii) any consequences arising from causes
beyond the control of the Administrative Agent or the Lenders. None of the above
shall affect, impair or prevent the vesting of any of the Administrative Agent's
rights or powers hereunder. Any action taken or omitted to be taken by the
Administrative Agent under or in connection with any Letter of Credit, if taken
or omitted in the absence of gross negligence or willful misconduct, shall not
create against the Administrative Agent any liability to the Borrower or any
Lender. In this connection, the obligation of the Borrower to reimburse the
Administrative Agent for any drawing made under any Letter of Credit shall be
absolute, unconditional and irrevocable and shall be paid strictly in accordance
with the terms of this Agreement under all circumstances whatsoever, including
without limitation, the following circumstances: (A) any lack of validity or
enforceability of any Letter of Credit Document or any term or provisions
therein; (B) any amendment or waiver of or any consent to departure from all or
any of the Letter of Credit Documents; (C) the existence of any claim, setoff,
defense or other right which the Borrower may have at any time against the
Administrative Agent, any Lender, any beneficiary of a Letter of Credit or any
other Person, whether in connection with this Agreement, the transactions
26
contemplated hereby or in the Letter of Credit Documents or any unrelated
transaction; (D) any breach of contract or dispute between the Borrower, the
Administrative Agent, any Lender or any other Person; (E) any demand, statement
or any other document presented under a Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein or
made in connection therewith being untrue or inaccurate in any respect
whatsoever; (F) any non-application or misapplication by the beneficiary of a
Letter of Credit of the proceeds of any drawing under such Letter of Credit; (G)
payment by the Administrative Agent under the Letter of Credit against
presentation of a draft or certificate which does not strictly comply with the
terms of the Letter of Credit; and (H) any other act, omission to act, delay or
circumstance whatsoever that might, but for the provisions of this Section,
constitute a legal or equitable defense to or discharge of the Borrower's
Reimbursement Obligations.
(h) Amendments. Etc. The issuance by the Administrative Agent of any
amendment, supplement or other modification to any Letter of Credit shall be
subject to the same conditions applicable under this Agreement to the issuance
of new Letters of Credit (including, without limitation, that the request
therefor be made through the Administrative Agent), and no such amendment,
supplement or other modification shall be issued unless either (i) the
respective Letter of Credit affected thereby would have complied with such
conditions had it originally been issued hereunder in such amended, supplemented
or modified form or (ii) the Requisite Lenders shall have consented thereto.
(i) Lenders' Participation in Letters of Credit. Immediately upon the
issuance by the Administrative Agent of any Letter of Credit, each Lender shall
be deemed to have irrevocably and unconditionally purchased and received from
the Administrative Agent, without recourse or warranty, an undivided interest
and participation to the extent of such Lender's Commitment Percentage of the
liability of the Administrative Agent with respect to such Letter of Credit and
each Lender thereby shall absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety, and shall be unconditionally obligated to the
Administrative Agent to pay and discharge when due, such Lender's Commitment
Percentage of the Administrative Agent's liability under such Letter of Credit.
In addition, upon the making of each payment by a Lender to the Administrative
Agent in respect of any Letter of Credit pursuant to the immediately following
subsection (j), such Lender shall, automatically and without any further action
on the part of the Administrative Agent or such Lender, acquire (i) a
participation in an amount equal to such payment in the Reimbursement Obligation
owing to the Administrative Agent by the Borrower in respect of such Letter of
Credit and (ii) a participation in a percentage equal to such Lender's
Commitment Percentage in any interest or other amounts payable by the Borrower
in respect of such Reimbursement Obligation (other
27
than the Fees payable to the Administrative Agent pursuant to the second
sentence of Section 3.6(b)).
(j) Payment Obligation of Lenders. Each Lender severally agrees to pay to
the Administrative Agent on demand in immediately available funds the amount of
such Lender's Commitment Percentage of each drawing paid by the Administrative
Agent under each Letter of Credit to the extent such amount is not reimbursed by
the Borrower pursuant to Section 2.3.(d) and is not available from funds then on
deposit in the Collateral Account. Each such Lender's obligation to make such
payments to the Administrative Agent under this subsection, and the
Administrative Agent's right to receive the same, shall be absolute, irrevocable
and unconditional and shall not be affected in any way by any circumstance
whatsoever, including without limitation, (i) the failure of any other Lender to
make its payment under this subsection, (ii) the financial condition of the
Borrower or any other Loan Party, (iii) the existence of any Default or Event of
Default, including any Event of Default described in Section 11.1.(f) or
11.1.(g) or (iv) the termination of the Commitments. Each such payment to the
Administrative Agent shall be made without any offset, abatement, withholding or
deduction whatsoever.
(k) Information to Lenders. Upon the request of any Lender from time to
time, the Administrative Agent shall deliver any information reasonably
requested by such Lender with respect to each Letter of Credit then outstanding.
Other than as set forth in this subsection, the Administrative Agent shall have
no duty to notify the Lenders regarding the issuance or other matters regarding
Letters of Credit issued hereunder. The failure of the Administrative Agent to
perform its requirements under this subsection shall not relieve any Lender from
its obligations under Section 2.3.(j).
Section 2.4. Rates and Payment of Interest on Loans.
(a) Rates. The Borrower promises to pay to the Administrative Agent for
account of each Lender interest on the unpaid principal amount of each Loan made
by such Lender for the period from and including the date of the making of such
Loan to but excluding the date such Loan shall be paid in full, at the following
per annum rates:
(i) during such periods as such Loan is a Base Rate Loan, at the Base
Rate (as in effect from time to time) plus the Applicable Margin; and
(ii) during such periods as such Loan is a LIBOR Loan, at the Adjusted
Eurodollar Rate for such Loan for the Interest Period therefor, plus the
Applicable Margin.
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Notwithstanding the foregoing, during the continuance of an Event of Default the
Borrower hereby promises to pay to the Administrative Agent for account of each
Lender interest at the Post-Default Rate on the aggregate outstanding principal
of all Loans made by such Lender and on any other amount payable by the Borrower
hereunder or under the Notes held by such Lender (including without limitation,
accrued but unpaid interest to the extent permitted under Applicable Law).
(b) Payment of Interest. Accrued interest on each Loan shall be payable (i)
monthly on the last Business Day of each calendar month, (ii) in the case of any
LIBOR Loan, upon the payment, prepayment or Continuation thereof or the
Conversion of such Loan to a Loan of another Type (but only on the principal
amount so paid, prepaid or Converted) and (iii) in the case of any Base Rate
Loan, upon the payment or prepayment thereof in full. Interest payable at the
Post-Default Rate shall be payable from time to time on demand. Promptly after
the determination of any interest rate provided for herein or any change
therein, the Administrative Agent shall give notice thereof to the Lenders to
which such interest is payable and to the Borrower. All determinations by the
Administrative Agent of an interest rate hereunder shall be conclusive and
binding on the Lenders and the Borrower for all purposes, absent manifest error.
Section 2.5. Number of Interest Periods.
There may be no more than five (5) different Interest Periods outstanding
at the same time.
Section 2.6. Repayment of Loans.
(a) Revolving Loans. The Borrower shall repay the entire outstanding
principal amount of, and all accrued but unpaid interest on, the Revolving Loans
on the Termination Date.
(b) Quarterly Amortization Payments. In the event that Borrower elects
pursuant to the provisions of Section 2.12.(c) to convert the Loan to an
amortizing term loan, then commencing ninety (90) days after the date of such
election (provided, however, if such day is not the first day of a calendar
month, then the first payment shall be due on the first day of the next
succeeding calendar month) and quarterly thereafter (each such payment date
being referred to as a "Payment Date") Borrower shall pay an amount equal to the
outstanding principal balance divided by 8. In addition, in the event one or
more Letters of Credit are drawn upon, then commencing upon the next Payment
Date and on each Payment Date thereafter, Borrower shall pay an additional
amount equal to the principal amount so drawn divided by the number of remaining
Payment Dates through the Termination Date. In any
29
event, all outstanding principal, interest, fees and other amounts shall be paid
in full on or before the Termination Date.
Section 2.7. Prepayments.
(a) Optional. Subject to Section 5.4., the Borrower may prepay any Loan at
any time without premium or penalty.
(b) Mandatory. If at any time the aggregate principal amount of all
outstanding Revolving Loans, together with the aggregate principal amount of all
Letter of Credit Liabilities exceeds the aggregate amount of the Commitments in
effect at such time, then the Borrower shall immediately pay to the
Administrative Agent for the accounts of the Lenders the amount of such excess.
Such payment shall be applied to pay all amounts of principal outstanding on the
Loans and any Reimbursement Obligations pro rata in accordance with Section 3.2.
and the remainder, if any, shall be deposited into the Collateral Account for
application to any Reimbursement Obligations. If the Borrower is required to pay
any outstanding LIBOR Loans by reason of this Section prior to the end of the
applicable Interest Period therefor, the Borrower shall pay all amounts due
under Section 5.4.
(c) Loan Availability. In addition to the principal payments required
pursuant to Sections 2.7.(a) and (b) above, if at any time the total principal
amount then outstanding under the Commitment exceeds Loan Availability, Borrower
shall, within thirty (30) days of such determination by the Administrative
Agent, pay the excess to the Administrative Agent on behalf of the Lenders
(provided, however, if such excess results from the disposition of an
Unencumbered Pool Property, such payment shall be made at the time of such
disposition). No additional Loans shall be made hereunder and no additional
Letters of Credit shall be issued hereunder until such time as the
Administrative Agent determines that Loan Availability exceeds the total
principal amount then outstanding. It shall be an Event of Default if Borrower
fails to make the required payment within such thirty (30) day period.
Section 2.8. Continuation.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, with respect to any LIBOR
Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR Loan
by selecting a new Interest Period for such LIBOR Loan. Each new Interest Period
selected under this Section shall commence on the last day of the immediately
preceding Interest Period. Each selection of a new Interest Period shall be made
by the Borrower giving to the Administrative Agent a Notice of Continuation not
later than 12:00 noon on the third Business Day prior to the date of any such
Continuation. Such notice by the Borrower of a Continuation
30
shall be by telephone or telecopy, confirmed immediately in writing if by
telephone, in the form of a Notice of Continuation, specifying (a) the proposed
date of such Continuation, (b) the LIBOR Loan and portion thereof subject to
such Continuation and (c) the duration of the selected Interest Period, all of
which shall be specified in such manner as is necessary to comply with all
limitations on Loans outstanding hereunder. Each Notice of Continuation shall be
irrevocable by and binding on the Borrower once given. Promptly after receipt of
a Notice of Continuation, the Administrative Agent shall notify each Lender by
telex or telecopy, or other similar form of transmission of the proposed
Continuation. If the Borrower shall fail to select in a timely manner a new
Interest Period for any LIBOR Loan in accordance with this Section, such Loan
will automatically, on the last day of the current Interest Period therefor,
Convert into a Base Rate Loan notwithstanding failure of the Borrower to comply
with Section 2.9.
Section 2.9 Conversion.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, upon the Borrower's giving of
a Notice of Conversion to the Administrative Agent, Convert all or a portion of
a Loan of one Type into a Loan of another Type. Any Conversion of a LIBOR Loan
into a Base Rate Loan shall be made on, and only on, the last day of an Interest
Period for such LIBOR Loan and, upon Conversion of a Base Rate Loan into a LIBOR
Loan, the Borrower shall pay accrued interest to the date of Conversion on the
principal amount so Converted. Each such Notice of Conversion shall be given not
later than 12:00 noon on the Business Day prior to the date of any proposed
Conversion into Base Rate Loans and on the third Business Day prior to the date
of any proposed Conversion into LIBOR Loans. Promptly after receipt of a Notice
of Conversion, the Administrative Agent shall notify each Lender by telecopy or
other similar form of transmission of the proposed Conversion. Subject to the
restrictions specified above, each Notice of Conversion shall be by telephone or
telecopy confirmed immediately in writing if by telephone, in the form of a
Notice of Conversion specifying (a) the requested date of such Conversion, (b)
the Type of Loan to be Converted, (c) the portion of such Type of Loan to be
Converted, (d) the Type of Loan such Loan is to be Converted into and (e) if
such Conversion is into a LIBOR Loan, the requested duration of the Interest
Period of such Loan. Each Notice of Conversion shall be irrevocable by and
binding on the Borrower once given.
Section 2.10. Notes.
(a) Revolving Note. The Revolving Loans made by each Lender shall, in
addition to this Agreement, also be evidenced by a promissory note of the
Borrower substantially in the form of Exhibit J (each a "Revolving Note"),
31
payable to the order of such Lender in a principal amount equal to the amount of
its Commitment.
(b) [Intentionally omitted.]
(c) Records; Endorsement on Transfer. The date, amount, interest rate, Type
and duration of Interest Periods (if applicable) of each Loan made by each
Lender to the Borrower, and each payment made on account of the principal
thereof, shall be recorded by such Lender on its books and such entries shall be
binding on the Borrower absent manifest error. Prior to the transfer of any
Note, the Lender shall endorse such items on such Note or any allonge thereof;
provided that the failure of such Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing hereunder or under such Note in respect of the
Loans evidenced by such Note.
Section 2.11. [Intentionally omitted.]
Section 2.12. Extension of Termination Date.
(a) Generally. Commencing on the first anniversary of the Agreement Date
and on each successive one year anniversary of the Agreement Date (provided that
on the prior anniversary the Borrower requested and the Lenders approved an
extension of the Termination Date), the Borrower may request that the
Administrative Agent, Documentation Agent and the Lenders extend the
then-existing Termination Date by a one year period by executing and delivering
to the Administrative Agent at least ninety (90) days but no more than one
hundred twenty (120) days prior to such anniversary date, a written request in
the form of Exhibit L (an "Extension Request"), such extension being subject to
satisfaction of all of the following conditions:
(1) Payment by Borrower on or before the first day of the extension
period of the extension fee described in Section 3.6(e) of this Agreement;
and
(2) At the time of the Extension Request and on the first day of the
extension period, there shall exist no Default or uncured Event of Default.
The Administrative Agent shall forward to each Lender a copy of each Extension
Request delivered to the Administrative Agent promptly after receipt thereof.
The Borrower understands that this Section has been included in this Agreement
for the Borrower's convenience in requesting an extension of the Termination
Date and the Borrower acknowledges that none of the Lenders nor either of the
Arrangers has promised (either expressly or impliedly), nor has any obligation
or commitment whatsoever, to extend the Termination Date at any
32
time. If all of the Lenders shall have notified (or shall be deemed to have
notified) the Administrative Agent of their approval pursuant to the following
sentence the Administrative Agent in writing on or prior to the date which is
forty-five (45) days prior to the date (the "Current Anniversary Date") two
years before the then-existing Termination Date that they approve such Extension
Request, then the Termination Date shall be extended to the date one year
following the then-existing Termination Date. If any Lender shall not have
notified the Administrative Agent within said time period that it accepts such
Extension Request, then such Extension Request shall be deemed approved by such
Lender. The Administrative Agent shall promptly notify the Borrower whether the
Extension Request has been accepted or rejected, and if rejected, the
Administrative Agent shall also give the Borrower notice of which Lenders
rejected such Extension Request.
(b) [Intentionally omitted.]
(c) Conversion to Term Loan. In the event the Borrower's Extension Request
is denied by the Lenders, provided that no Default or Event of Default then
exists, at Borrower's option, either (i) the Loans will be due and payable in
full at the then-existing Termination Date, or (ii) provided the Borrower timely
pays the conversion fee described in Section 3.6(d), the Loans will convert to a
two year amortizing term loan in which event (A) the Borrower shall begin making
principal payments in accordance with the provisions of Section 2.6(b) and (B)
the Commitment shall be reduced to the then outstanding principal balance plus
the Stated Amount of the Letters of Credit then outstanding, the Lenders shall
have no further obligation to make Loans hereunder and the Administrative Agent
shall have no further obligation to issue, extend or renew Letters of Credit.
Section 2.13. Expiration or Maturity Date of Letters of Credit Past Termination
Date.
If on the date (the "Facility Termination Date") the Commitments are
terminated (whether voluntarily, by reason of the occurrence of an Event of
Default or otherwise), there are any Letters of Credit outstanding hereunder,
the Borrower shall, on the Facility Termination Date, pay to the Administrative
Agent an amount of money equal to the Stated Amount of such Letter(s) of Credit
for deposit into the Collateral Account. If a drawing pursuant to any such
Letter of Credit occurs on or prior to the expiry date of such Letter of Credit,
the Borrower agrees that it shall execute any security agreement and UCC
financing statements relating thereto as may be reasonably required by the
Administrative Agent and authorizes the Administrative Agent to use the monies
deposited in the Collateral Account to make payment to the beneficiary with
respect to such drawing or the payee with respect to such presentment. If no
drawing occurs on or prior to the expiry date of such Letter of Credit, the
33
Administrative Agent shall pay to the Borrower (or to whomever else may be
legally entitled thereto) the monies deposited in the Collateral Account with
respect to such outstanding Letter of Credit on or before the date thirty (30)
Business Days after the expiration date of such Letter of Credit.
Section 2.14. Amount Limitations.
Notwithstanding any other term of this Agreement or any other Loan
Document, at no time may the aggregate principal amount of all outstanding
Revolving Loans, together with the aggregate principal amount of all Letter of
Credit Liabilities, exceed the aggregate amount of the Commitments at such time.
Article III. Payments, Fees and Other General Provisions
Section 3.1. Payments.
Except to the extent otherwise provided herein, all payments of principal,
interest and other amounts to be made by the Borrower under this Agreement or
any other Loan Document shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Administrative Agent
at its Principal Office, not later than 2:00 p.m. on the date on which such
payment shall become due (each such payment made after such time on such due
date to be deemed to have been made on the next succeeding Business Day). Prior
to making any such payment, the Borrower shall give the Administrative Agent
notice of such payment. Subject to Sections 3.2. and 3.3., the Administrative
Agent, or any Lender for whose account any such payment is made, may (but shall
not be obligated to) debit the amount of any such payment which is not made by
such time from any special or general deposit account of the Borrower with the
Administrative Agent or such Lender, as the case may be (with notice to the
Borrower, the other Lenders and the Administrative Agent). The Borrower shall,
at the time of making each payment under this Agreement or any Note, specify to
the Administrative Agent the amounts payable by the Borrower hereunder to which
such payment is to be applied. Each payment received by the Administrative Agent
for the account of a Lender under this Agreement or any Note shall be paid to
such Lender at the applicable Lending Office of such Lender no later than 5:00
p.m. on the date of receipt. If the Administrative Agent fails to pay such
amount to a Lender as provided in the previous sentence, the Administrative
Agent shall pay interest on such amount until paid at a rate per annum equal to
the Federal Funds Rate from time to time in effect. If the due date of any
payment under this Agreement or any other Loan Document would otherwise fall on
a day which is not a Business Day such date shall be extended to the next
succeeding Business Day and interest shall be payable for the period of such
extension.
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Section 3.2. Pro Rata Treatment.
Except to the extent otherwise provided herein: (a) each borrowing from the
Lenders under Section 2.1.(a) shall be made from the Lenders, each payment of
the Fees under Section 3.6.(a), 3.6.(b) and the first sentence of Section 3.6(c)
shall be made for account of the Lenders and shall be applied to the respective
Commitments of the Lenders, pro rata according to the amounts of their
respective Commitments; (b) each payment or prepayment of principal of Revolving
Loans by the Borrower shall be made for the account of the Lenders pro rata in
accordance with the respective unpaid principal amounts of the Revolving Loans
held by them, provided that if immediately prior to giving effect to any such
payment in respect of any Revolving Loans the outstanding principal amount of
the Revolving Loans shall not be held by the Lenders pro rata in accordance with
their respective Commitments in effect at the time such Loans were made, then
such payment shall be applied to the Revolving Loans in such manner as shall
result, as nearly as is practicable, in the outstanding principal amount of the
Revolving Loans being held by the Lenders pro rata in accordance with their
respective Commitments; (c) each payment of interest on Revolving Loans by the
Borrower shall be made for account of the Lenders pro rata in accordance with
the amounts of interest on such Loans then due and payable to the respective
Lenders; (d) the making, Conversion and Continuation of Revolving Loans of a
particular Type (other than Conversions provided for by Section 5.5.) shall be
made pro rata among the Lenders according to the amounts of their respective
Commitments (in the case of making of Loans) or their respective Loans (in the
case of Conversions and Continuations of Loans) and the then current Interest
Period for each Lender's portion of each Loan of such Type shall be coterminous;
and (e) the Lenders' participation in, and payment obligations in respect of,
Letters of Credit under Section 2.3., shall be pro rata in accordance with their
respective Commitments.
Section 3.3. Sharing of Payments, Etc.
The Borrower agrees that, in addition to (and without limitation of) any
right of set-off, banker's lien or counterclaim which a Lender or the
Administrative Agent may otherwise have, each Lender and the Administrative
Agent shall be entitled, at its option, to offset balances held by it for the
account of the Borrower at any of such Lender's (or the Administrative Agent's)
offices, in Dollars or in any other currency, against any principal of, or
interest on, any of such Lender's Loans hereunder (or other Obligations owing to
such Lender or the Administrative Agent hereunder) which is not paid when due
(regardless of whether such balances are then due to the Borrower), in which
case such Lender shall promptly notify the Borrower, all other Lenders and the
Administrative Agent thereof; provided, however, such Lender's failure to give
such notice shall not affect the validity of such offset. If a Lender shall
obtain payment of any principal of, or interest on, any Loan made by it to the
Borrower under this
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Agreement, or shall obtain payment on any other Obligation owing by the Borrower
through the exercise of any right of set-off, banker's lien or counterclaim or
similar right or otherwise or through voluntary prepayments directly to a Lender
or other payments made by the Borrower to a Lender not in accordance with the
terms of this Agreement and such payment should be distributed to the Lenders
pro rata in accordance with Section 3.2. or Section 11.4., as applicable, such
Lender shall promptly pay such amounts to the other Lenders and make such other
adjustments from time to time as shall be equitable, to the end that all the
Lenders shall share the benefit of such payment (net of any reasonable expenses
which may be incurred by such Lender in obtaining or preserving such benefit)
pro rata in accordance with Section 3.2. or Section 11.4. To such end, all the
Lenders shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored. Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of the Borrower.
Section 3.4. Several Obligations.
No Lender shall be responsible for the failure of any other Lender to make
a Loan or to perform any other obligation to be made or performed by such other
Lender hereunder, and the failure of any Lender to make a Loan or to perform any
other obligation to be made or performed by it hereunder shall not relieve the
obligation of any other Lender to make any Loan or to perform any other
obligation to be made or performed by such other Lender.
Section 3.5. Minimum Amounts.
(a) Borrowings and Conversions. Each borrowing of Base Rate Loans shall be
in an aggregate minimum amount of $1,000,000 and integral multiples of $500,000
in excess thereof. Each borrowing of LIBOR Loans, and each Conversion of a Base
Rate Loan to a LIBOR Loan, shall be in an aggregate minimum amount of $1,000,000
and integral multiples of $500,000 in excess of that amount.
(b) Prepayments. Each voluntary prepayment of Revolving Loans shall be in
an aggregate minimum amount of $1,000,000 and integral multiples of $500,000 in
excess thereof.
(c) Letters of Credit. The initial Stated Amount of each Letter of Credit
shall be at least $100,000.
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Section 3.6. Fees.
(a) Unused Fee. The Borrower agrees to pay to the Administrative Agent for
the ratable account of the Lenders an unused fee on the average daily unused
portion of the Commitment (regardless of whether such unused portion is then
available to be advanced hereunder) at the rate equal to (i) 0.25% per annum in
the event the average daily outstanding balance is equal to or less than fifty
percent (50%) of the Commitment, and (ii) 0.125% per annum in the event the
average daily outstanding balance under the Commitment is greater than fifty
percent (50%) of the Commitment. Such Unused Fee shall be payable in arrears on
a pro rata basis to the Lenders on (A) each Quarterly Date, (B) on the
Termination Date, (C) on the date the Commitment is otherwise terminated or
reduced to zero and (D) thereafter from time to time on demand of the
Administrative Agent.
(b) Letter of Credit Fees. The Borrower agrees to pay to the Administrative
Agent for account of each Lender a letter of credit fee at a rate per annum
equal to the Applicable Margin for LIBOR Loans of the daily average Stated
Amount of each Letter of Credit for the period from and including the date of
issuance of such Letter of Credit to and including the date such Letter of
Credit is drawn in full, expires or is terminated. In addition, the Borrower
shall pay to the Administrative Agent for its own account and not the account of
any Lender, a Letter of Credit issuance fee in respect of each Letter of Credit
at the rate equal to twelve and one-half (12.5) basis points on the face amount
of all issued Letters of Credit, payable prior to the issuance of the subject
Letter of Credit. The Letter of Credit Fee provided for in the first sentence
shall be nonrefundable and paid in arrears (i) on each Quarterly Date, (ii) on
the Termination Date, (iii) on the date the Commitments are terminated or
reduced to zero and (iv) thereafter from time to time on demand of the
Administrative Agent. The Borrower shall pay directly to the Administrative
Agent from time to time on demand all commissions, charges, costs and expenses
in the amounts customarily charged by the Administrative Agent from time to time
in like circumstances with respect to the issuance of each Letter of Credit,
drawings, amendments and other transactions relating thereto.
(c) Administrative and Other Fees. The Borrower agrees to pay the
administrative fees of the Documentation Agent and the Administrative Agent in
the amounts agreed upon by the Documentation Agent, Administrative Agent and the
Borrower in writing from time to time. In addition, the Borrower agrees to pay
such other fees of each Agent in the amounts agreed upon by such Agent and the
Borrower in writing from time to time.
(d) Term Loan Conversion Fee. In the event Borrower elects to convert the
Loans to a two year amortizing term loan pursuant to Section 2.12.(c), Borrower
shall pay to Administrative Agent for the account of Lenders, at the
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time of such election, a term loan conversion fee in the amount of 0.20% of the
outstanding principal balance of the Loans as of the date of such conversion.
(e) Extension Fee. In the event Borrower elects to extend the Termination
Date in accordance with the provisions of this Agreement, Borrower shall pay to
Lenders an extension fee in the amount of 0.10% of the Commitment payable within
three (3) Business Days after the approval by the Lenders of such extension.
Section 3.7. Computations.
Unless otherwise expressly set forth herein, any accrued interest on any
Loan, any Fees or other Obligations due hereunder shall be computed on the basis
of a year of three hundred sixty (360) days and the actual number of days
elapsed.
Section 3.8. Usury.
In no event shall the amount of interest due or payable on the Loans or
other Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by the Borrower or received by any Lender, then
such excess sum shall be credited as a payment of principal, unless the Borrower
shall notify the respective Lender in writing that the Borrower elects to have
such excess sum returned to it forthwith. It is the express intent of the
parties hereto that the Borrower not pay and the Lenders not receive, directly
or indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under Applicable Law.
Section 3.9. Agreement Regarding Interest and Charges.
The parties hereto further agree and stipulate that all agency fees,
syndication fees, facility fees, letter of credit fees, underwriting fees,
extension fees, term loan conversion fees, unused fees, default charges, late
charges, funding or "breakage" charges, increased cost charges, attorneys' fees
and reimbursement for costs and expenses paid by the Administrative Agent or any
Lender to third parties or for damages incurred by the Administrative Agent or
any Lender, are charges made to compensate the Administrative Agent or any such
Lender for underwriting or administrative services and costs or losses performed
or incurred, and to be performed or incurred, by the Administrative Agent and
the Lenders in connection with this Agreement and shall under no circumstances
be deemed to be charges for the use of money.
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Section 3.10. Statements of Account.
The Administrative Agent will account to the Borrower monthly with a
statement of Loans, Letters of Credit, accrued interest and Fees, charges and
payments made pursuant to this Agreement and the other Loan Documents, and such
account rendered by the Administrative Agent shall be deemed conclusive upon
Borrower absent manifest error. The failure of the Administrative Agent to
deliver such a statement of accounts shall not relieve or discharge the Borrower
from any of its obligations hereunder.
Section 3.11. Defaulting Lenders.
(a) Generally. If for any reason any Lender (a "Defaulting Lender") shall
fail or refuse to perform any of its obligations under this Agreement or any
other Loan Document to Which it is a party within the time period specified for
performance of such obligation or, if no time period is specified, if such
failure or refusal continues for a period of five (5) Business Days after notice
from the Administrative Agent, then, in addition to the rights and remedies that
may be available to the Administrative Agent or the Borrower under this
Agreement or Applicable Law, such Defaulting Lender's right to participate in
the administration of the Loans, this Agreement and the other Loan Documents,
including without limitation, any right to vote in respect of, to consent to or
to direct any action or inaction of the Administrative Agent or to be taken into
account in the calculation of the Requisite Lenders, shall be suspended during
the pendency of such failure or refusal. If a Lender is a Defaulting Lender
because it has failed to make timely payment to the Administrative Agent of any
amount required to be paid to the Administrative Agent hereunder (without giving
effect to any notice or cure periods), in addition to other rights and remedies
which the Administrative Agent or the Borrower may have under the immediately
preceding provisions or otherwise, the Administrative Agent shall be entitled
(i) to collect interest from such Defaulting Lender on such delinquent payment
for the period from the date on which the payment was due until the date on
which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff
and to apply in satisfaction of the defaulted payment and any related interest,
any amounts otherwise payable to such Defaulting Lender under this Agreement or
any other Loan Document and (iii) to bring an action or suit against such
Defaulting Lender in a court of competent jurisdiction to recover the defaulted
amount and any related interest. Any amounts received by the Administrative
Agent in respect of a Defaulting Lender's Loans shall not be paid to such
Defaulting Lender and shall be held uninvested by the Administrative Agent and
either applied against the purchase price of such Loans under the following
subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender's
curing of its default.
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(b) Purchase of Defaulting Lender's Commitment. Any Lender who is not a
Defaulting Lender shall have the right, but not the obligation, in its sole
discretion, to acquire all of a Defaulting Lender's Commitment. If more than one
Lender exercises such right, each such Lender shall have the right to acquire an
amount of such Defaulting Lender's Commitment in proportion to the Commitments
of the other Lenders exercising such right. Upon any such purchase, the
Defaulting Lender's interest in the Loans and its rights hereunder (but not its
liability in respect thereof or under the Loan Documents or this Agreement to
the extent the same relate to the period prior to the effective date of the
purchase) shall terminate on the date of purchase, and the Defaulting Lender
shall promptly execute all documents reasonably requested to surrender and
transfer such interest to the purchaser thereof, including an appropriate
Assignment and Acceptance Agreement and, notwithstanding Section 13.5.(d), shall
pay to the Administrative Agent an assignment fee in the amount of $5,000. The
purchase price for the Commitment of a Defaulting Lender shall be equal to the
amount of the principal balance of the Loans outstanding and owed by the
Borrower to the Defaulting Lender. Prior to payment of such purchase price to a
Defaulting Lender, the Administrative Agent shall apply against such purchase
price any amounts retained by the Administrative Agent pursuant to the last
sentence of the immediately preceding subsection (a). The Defaulting Lender
shall be entitled to receive amounts owed to it by the Borrower under the Loan
Documents which accrued prior to the date of the default by the Defaulting
Lender, to the extent the same are received by the Administrative Agent from or
on behalf of the Borrower. There shall be no recourse against any Lender or the
Administrative Agent for the payment of such sums except to the extent of the
receipt of payments from any other party or in respect of the Loans.
Section 3.12. Taxes.
(a) Taxes Generally. All payments by the Borrower of principal of, and
interest on, the Loans and all other Obligations shall be made free and clear of
and without deduction for any present or future excise, stamp or other taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes (other than withholding taxes) that would
not be imposed but for a connection between the Administrative Agent or a Lender
and the jurisdiction imposing such taxes (other than a connection arising solely
by virtue of the activities of the Administrative Agent or such Lender pursuant
to or in respect of this Agreement or any other Loan Document), (iii) any
withholding taxes payable with respect to payments hereunder or under any other
Loan Document under Applicable Law in effect on the Agreement Date, (iv) any
taxes imposed on or measured by any Lender's assets, net income, receipts or
branch profits and (v) any taxes arising after the Agreement Date solely as a
result of or attributable to a Lender changing its designated Lending
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Office after the date such Lender becomes a party hereto (such non-excluded
items being collectively called "Taxes"). If any withholding or deduction from
any payment to be made by the Borrower hereunder is required in respect of any
Taxes pursuant to any Applicable Law, then the Borrower will:
(i) pay directly to the relevant Governmental Authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an official receipt
or other documentation satisfactory to the Administrative Agent evidencing
such payment to such Governmental Authority; and
(iii) pay to the Administrative Agent for its account or the account
of the applicable Lender, as the case may be, such additional amount or
amounts as is necessary to ensure that the net amount actually received by
the Administrative Agent or such Lender will equal the full amount that the
Administrative Agent or such Lender would have received had no such
withholding or deduction been required.
(b) Tax Indemnification. If the Borrower fails to pay any Taxes when due to
the appropriate Governmental Authority or fails to remit to the Administrative
Agent, for its account or the account of the respective Lender, as the case may
be, the required receipts or other required documentary evidence, the Borrower
shall indemnify the Administrative Agent and the Lenders for any incremental
Taxes, interest or penalties that may become payable by the Administrative Agent
or any Lender as a result of any such failure. For purposes of this Section, a
distribution hereunder by the Administrative Agent or any Lender to or for the
account of any Lender shall be deemed a payment by the Borrower.
(c) Tax Forms. Prior to the date that any Lender or participant organized
under the laws of a jurisdiction outside the United States of America becomes a
party hereto, such Person shall deliver to the Borrower and the Administrative
Agent such certificates, documents or other evidence, as required by the
Internal Revenue Code or Treasury Regulations issued pursuant thereto (including
Internal Revenue Service Forms 4224 or 1001, as applicable, or appropriate
successor forms), properly completed, currently effective and duly executed by
such Lender or participant establishing that payments to it hereunder and under
the Notes are (i) not subject to United States Federal backup withholding tax or
(ii) not subject to United States Federal withholding tax under the Code because
such payment is either effectively connected with the conduct by such Lender or
participant of a trade or business in the United States or totally exempt from
United States Federal withholding tax by reason of the application of the
provisions of a treaty to which the United States is a party or such Lender is
otherwise exempt.
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Article IV. Unencumbered Pool Properties
Section 4.1. Acceptance of Unencumbered Pool Properties.
(a) Subject to compliance with the terms and conditions of Section 6.1.,
the Lenders have accepted the Real Property Assets listed on Schedule 4.1. as of
the Agreement Date as Unencumbered Pool Properties. If the Borrower desires that
the Lenders accept an additional Real Property Asset as an Unencumbered Pool
Property, the Borrower shall so notify the Administrative Agent in writing and
the Administrative Agent shall promptly notify each of the Lenders. No Real
Property Asset will be evaluated by the Lenders unless it is an Eligible
Property, and unless and until the Borrower delivers to the Administrative Agent
the following, in form and substance satisfactory to the Administrative Agent:
(i) a description of such Real Property Asset, such description to
include the age, location and Occupancy Rate of such Real Property Asset;
(ii) an operating statement and a rent roll for such Real Property
Asset for the fiscal quarter most recently ending certified by a
representative of the Borrower as being true and correct in all material
respects and, in the case of the operating statement, prepared in
accordance with GAAP,
(iii) an operating budget for such Real Property Asset with respect to
the current fiscal year;
(iv) copies of all engineering, mechanical, structural and maintenance
studies performed with respect to such Real Property Asset during the past
3 years;
(v) a "Phase I" environmental assessment of such Real Property Asset
not more than 12 months old prepared by an environmental engineering firm
acceptable to the Administrative Agent, and any additional environmental
studies or assessments available to the Borrower performed with respect to
such Real Property Asset;
(vi) copies of the leases relating to all single tenant properties and
leases with tenants who occupy more than 20,000 square feet of space on
such Real Property Asset;
(vii) a copy of the most recent ALTA Owner's Policy of Title Insurance
relating to such Real Property Asset showing fee simple title (or a
leasehold estate) being vested in the Borrower or a Subsidiary and all
matters of record; and
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(viii) such other information as the Administrative Agent may
reasonably request in order to evaluate the Real Property Asset.
Following receipt of the foregoing documents and information, the
Administrative Agent shall review them as expeditiously as is reasonably
practicable under the circumstances but in any event within fifteen (15) days
after receipt of all such information. If, following such review, the
Administrative Agent has determined that such Real Property Asset constitutes an
Eligible Property, the Administrative Agent will promptly (i) so notify the
Borrower and (ii) submit the foregoing documents and information to the Lenders.
Each Lender shall notify the Administrative Agent whether it approves of the
designation of such Real Property Asset as an Unencumbered Pool Property within
ten (10) Business Days of receipt of all such documents and information. If a
Lender shall fail to so notify the Administrative Agent, then such Lender shall
be deemed to have approved such Real Property Asset. Upon approval of such Real
Property Asset by all of the Lenders, and upon execution and delivery of all of
such other items or documents as may be appropriate under the circumstances as
reasonably requested by the Administrative Agent, including, without limitation,
a guaranty if such Real Property Asset is owned by an entity other than the
Borrower or a Guarantor, then such Real Property Asset shall become an
Unencumbered Pool Property.
Section 4.2. Termination of Designation as Unencumbered Pool Property.
A Real Property Asset shall cease to be an Unencumbered Pool Property if it
shall cease to be an Eligible Property. From time to time the Borrower may
request, upon not less than thirty (30) days prior written notice to the
Administrative Agent and the Lenders, that an Unencumbered Pool Property cease
to be an Unencumbered Pool Property. The Administrative Agent shall grant such
request if all of the following conditions are satisfied:
(a) no Default or Event of Default shall have occurred and be continuing
both at the time of such request and immediately after giving effect to such
request; and
(b) the Borrower shall have delivered to the Administrative Agent a
Compliance Certificate demonstrating on a pro forma basis, and the
Administrative Agent shall have determined, that the Borrower will remain in
compliance with Section 10.1. hereof after giving effect to such request and any
prepayment to be made and/or the acceptance of any Real Property Asset as an
additional or replacement Unencumbered Pool Property to be given concurrently
with such request.
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Section 4.3. Additional Requirements of Unencumbered Pool Properties.
The Weighted Average Occupancy Rate of all Unencumbered Pool Properties
shall at all times equal or exceed ninety percent (90%), with no individual
property having an Occupancy Rate below eighty percent (80%).
Article V. Yield Protection, Etc.
Section 5.1. Additional Costs; Capital Adequacy.
(a) Additional Costs. The Borrower shall promptly pay to the Administrative
Agent for the account of a Lender from time to time such amounts as such Lender
may determine to be necessary to compensate such Lender for any costs incurred
by such Lender that it determines are attributable to its making or maintaining
of any LIBOR Loans or its obligation to make any LIBOR Loans hereunder, any
reduction in any amount receivable by such Lender under this Agreement or any of
the other Loan Documents in respect of any of such Loans or such obligation or
the maintenance by such Lender of capital in respect of its Loans or its
Commitments (such increases in costs and reductions in amounts receivable being
herein called "Additional Costs"), resulting from any Regulatory Change that:
(i) changes the basis of taxation of any amounts payable to such Lender under
this Agreement or any of the other Loan Documents in respect of any of such
Loans or its Commitments (other than taxes imposed on or measured by the overall
net income of such Lender or of its Lending Office for any of such Loans by the
jurisdiction in which such Lender has its principal office or such Lending
Office); or (ii) imposes or modifies any reserve, special deposit or similar
requirements (other than Regulation D of the Board of Governors of the Federal
Reserve System or other reserve requirement utilized in the determination of the
Adjusted Eurodollar Rate for such Loan) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities of, such Lender, or
any commitment of such Lender (including, without limitation, the Commitments of
such Lender hereunder); or (iii) has or would have the effect of reducing the
rate of return on capital of such Lender to a level below that which such Lender
could have achieved but for such Regulatory Change (taking into consideration
such Lender's policies with respect to capital adequacy).
(b) Lender's Suspension of LIBOR Loans. Without limiting the effect of the
provisions of the immediately preceding subsection (a), if by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
44
that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to the Borrower (with a copy to the Administrative
Agent), the obligation of such Lender to make or Continue, or to Convert Base
Rate Loans into, LIBOR Loans hereunder shall be suspended until such Regulatory
Change ceases to be in effect (in which case the provisions of Section 5.5.
shall apply).
(c) Additional Costs in Respect of Letters of Credit. Without limiting the
obligations of the Borrower under the preceding subsections of this Section (but
without duplication), if as a result of any Regulatory Change or any risk-based
capital guideline or other requirement heretofore or hereafter issued by any
Governmental Authority there shall be imposed, modified or deemed applicable any
tax, reserve, special deposit, capital adequacy or similar requirement against
or with respect to or measured by reference to Letters of Credit and the result
shall be to increase the cost to the Administrative Agent of issuing (or any
Lender purchasing participations in) or maintaining its obligation hereunder to
issue (or purchase participations in) any Letter of Credit or reduce any amount
receivable by the Administrative Agent or any Lender hereunder in respect of any
Letter of Credit, then, upon demand by the Administrative Agent or such Lender,
the Borrower shall pay immediately to the Administrative Agent for its account
or the account of such Lender, as applicable, from time to time as specified by
the Administrative Agent or a Lender, such additional amounts as shall be
sufficient to compensate the Administrative Agent or such Lender for such
increased costs or reductions in amount.
(d) Notification and Determination of Additional Costs. Each of the
Administrative Agent and each Lender agrees to notify the Borrower of any event
occurring after the Agreement Date entitling the Administrative Agent or such
Lender to compensation under any of the preceding subsections of this Section as
promptly as reasonably practicable; provided, however, the failure of the
Administrative Agent or any Lender to give such notice shall not release the
Borrower from any of its obligations hereunder. The Administrative Agent and or
such Lender agrees to furnish to the Borrower a certificate setting forth the
basis and amount of each request by the Administrative Agent or such Lender for
compensation under this Section. Determinations by the Administrative Agent or
any Lender of the effect of any Regulatory Change shall be conclusive, provided
that such determinations are made on a reasonable basis and in good faith.
Section 5.2. Suspension of LIBOR Loans.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of any Adjusted Eurodollar Rate for any Interest Period:
45
(a) the Administrative Agent reasonably determines (which determination
shall be conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the Adjusted
Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent reasonably determines (which determination
shall be conclusive) that the Adjusted Eurodollar Rate will not adequately and
fairly reflect the cost to the Lenders of making or maintaining LIBOR Loans for
such Interest Period;
then the Administrative Agent shall give the Borrower and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to, and shall not, make additional LIBOR Loans,
Continue LIBOR Loans or Convert Loans into LIBOR Loans and the Borrower shall,
on the last day of each current Interest Period for each outstanding LIBOR Loan,
either repay such Loan or Convert such Loan into a Base Rate Loan.
Section 5.3. Illegality.
Notwithstanding any other provision of this Agreement, if it becomes
unlawful for any Lender to honor its obligation to make or maintain LIBOR Loans
hereunder, then such Lender shall promptly notify the Borrower thereof (with a
copy to the Administrative Agent) and such Lender's obligation to make or
Continue, or to Convert Loans of any other Type into, LIBOR Loans shall be
suspended until such time as such Lender may again make and maintain LIBOR Loans
(in which case the provisions of Section 5.5. shall be applicable).
Section 5.4. Compensation.
The Borrower shall pay to the Administrative Agent for the account of each
Lender, upon the request of such Lender through the Administrative Agent, such
amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost or expense that such Lender
determines is attributable to:
(a) any payment or prepayment (whether mandatory or optional) of a LIBOR
Loan or Conversion of a LIBOR Loan, made by such Lender for any reason
(including, without limitation, acceleration) on a date other than the last day
of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any of the applicable conditions precedent specified
in Article VI. to be satisfied) to borrow a LIBOR Loan from such Lender on the
date for such borrowing, or to Convert a Base Rate Loan into a LIBOR Loan or
46
Continue a LIBOR Loan on the requested date of such Conversion or Continuation.
Section 5.5. Treatment of Affected Loans.
If the obligation of any Lender to make LIBOR Loans or to Continue, or to
Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to
Sections 5.1.(b), 5.2. or 5.3., then such Lender's LIBOR Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for LIBOR Loans (or, in the case of a Conversion
required by Sections 5.1.(b) or 5.3., on such earlier date as such Lender may
specify to the Borrower with a copy to the Administrative Agent) and, unless and
until such Lender gives notice as provided below that the circumstances
specified in Sections 5.1., 5.2. or 5.3. that gave rise to such Conversion no
longer exist:
(a) to the extent that such Lender's LIBOR Loans have been so Converted,
all payments and prepayments of principal that would otherwise be applied to
such Lender's LIBOR Loans shall be applied instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such Lender as
LIBOR Loans shall be made or Continued instead as Base Rate Loans, and all Base
Rate Loans of such Lender that would otherwise be Converted into LIBOR Loans
shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Sections 5.1. or 5.3. that gave rise
to the Conversion of such Lender's LIBOR Loans pursuant to this Section no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when LIBOR Loans made by other Lenders are
outstanding, then such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding LIBOR Loans, to the extent necessary so that, after giving
effect thereto, all Loans held by the Lenders holding LIBOR Loans and by such
Lender are held pro rata (as to principal amounts, Types and Interest Periods)
in accordance with their respective Commitments.
47
Section 5.6. Change of Lending Office.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Sections 3.12., 5.1. or 5.3., to reduce
the liability of the Borrower or avoid the results provided thereunder, so long
as such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of America.
Section 5.7. Assumptions Concerning Funding of LIBOR Loans.
Calculation of all amounts payable to a Lender under this Article V. shall
be made as though such Lender had actually funded LIBOR Loans through the
purchase of deposits in the relevant market bearing interest at the rate
applicable to such LIBOR Loans in an amount equal to the amount of the LIBOR
Loans and having a maturity comparable to the relevant Interest Period;
provided, however, that each Lender may fund each of its LIBOR Loans in any
manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article V.
Article VI. Conditions Precedent
Section 6.1. Initial Conditions Precedent.
The obligation of the Lenders to effect or permit the occurrence of the
first Credit Event hereunder, whether as the making of any Revolving Loans, or
the issuance of a Letter of Credit, is subject to the following conditions
precedent:
(a) The Administrative Agent shall have received each of the following, in
form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties
hereto;
(ii) Notes executed by the Borrower, payable to each Lender and
complying with the terms of Section 2.1O.(a) and (b);
(iii) An opinion of Massachusetts counsel to the Borrower, addressed
to the Administrative Agent, Documentation Agent and the Lenders, in
substantially the form of Exhibit M;
(iv) all of the documents and information required to be delivered
under Section 4.1.(a) with respect to each of the Real Property Assets
listed on Schedule 4.1.;
48
(v) the organizational documents of the Borrower certified as of a
recent date by the applicable Governmental Authority if filed and by a
senior officer of the Borrower if not filed;
(vi) a good standing certificate issued as of a recent date and
certificates of qualification to transact business or other comparable
certificates issued by each Secretary of State (and any state department of
taxation, as applicable) of each state in which the Borrower is required to
be so qualified;
(vii) A certificate of incumbency signed by the Secretary or Assistant
Secretary of the Borrower with respect to each of the officers of the
Borrower authorized to execute and deliver the Loan Documents to which the
Borrower is a party and the officers of the Borrower then authorized to
deliver Notices of Borrowing, Notices of Continuation and Notices of
Conversion and to request the issuance of Letters of Credit;
(viii) certified copies (certified by the Secretary or Assistant
Secretary of the Borrower) of all action taken by the Borrower's governing
body to authorize the execution, delivery and performance of the Loan
Documents to which it is a party;
(ix) A Guaranty executed by each Guarantor in substantially the form
of Exhibit C;
(x) The articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational
instrument (if any) of each Guarantor certified as of a recent date by the
Secretary of State of the state of formation of such Guarantor;
(xi) A certificate of good standing or certificate of similar meaning
with respect to each Guarantor which owns one or more Unencumbered Pool
Properties issued as of a recent date by the Secretary of State of the
state of formation of each such Guarantor and certificates of qualification
to transact business or other comparable certificates issued by each
Secretary of State (and any state department of taxation, as applicable) of
each state in which Guarantor is required to be so qualified;
(xii) A certificate of incumbency signed by the Secretary or Assistant
Secretary (or other individual performing similar functions) of each
Guarantor with respect to each of the officers of such Guarantor authorized
to execute and deliver the Loan Documents to which such Guarantor is a
party;
(xiii) Copies certified by the Secretary or Assistant Secretary of
each Guarantor (or other individual performing similar functions) of (i)
the by-
49
laws of such Guarantor, if a corporation, the operating agreement, if a
limited liability company, the partnership agreement, if a limited or
general partnership, or other comparable document in the case of any other
form of legal entity and (ii) all corporate, partnership, member or other
necessary action taken by such Guarantor to authorize the execution,
delivery and performance of the Loan Documents to which it is a party;
(xiv) A copy of each of the documents, instruments and agreements
evidencing any of the Indebtedness described on Schedule 7.1(g) marked with
an asterisk on such Schedule and a copy of each Material Contract,
certified as true, correct and complete by the chief financial officer of
the Borrower;
(xv) Evidence that all insurance required to be maintained by the
Borrower and the other Loan Parties under the terms of the Loan Documents
is in effect;
(xvi) The Fees, if any, then due under Section 3.6.;
(xvii) A Compliance Certificate calculated as of the fiscal quarter
ending February 28, 1998; and
(xviii) Such other documents, agreements and instruments as the
Administrative Agent or the Documentation Agent may reasonably request on
behalf of the Lenders; and
(b) In the good faith judgment of the Administrative Agent, the
Documentation Agent and the Lenders:
(i) There shall not have occurred or become known to the Agents or the
Lenders any event, condition, situation or status since the date of the
information contained in the financial and business projections, budgets,
pro forma data and forecasts concerning the Borrower and its Subsidiaries
delivered to any of the Agents and the Lenders prior to the Agreement Date
that has had or could reasonably be expected to result in a Material
Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding shall be pending or threatened which
could reasonably be expected to (1) result in a Material Adverse Effect or
(2) restrain or enjoin, impose materially burdensome conditions on, or
otherwise materially and adversely affect the ability of the Borrower or
any other Loan Party to fulfill its obligations under the Loan Documents to
which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all
approvals, consents and waivers, and shall have made or given all necessary
filings and notices as shall be required to consummate the transactions
50
contemplated hereby without the occurrence of any default under, conflict
with or violation of (1) any Applicable Law or (2) any agreement, document
or instrument to which the Borrower or any other Loan Party is a party or
by which any of them or their respective properties is bound, except for
such approvals, consents, waivers, filings and notices the receipt, making
or giving of which could reasonably be expected to have to (A) have a
Material Adverse Effect, or (B) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and adversely affect the
ability of the Borrower or any other Loan Party to fulfill its obligations
under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material
disruption of financial or capital markets that could reasonably be
expected to materially and adversely affect the transactions contemplated
by the Loan Documents.
Section 6.2. Conditions Precedent to All Loans and Letters of Credit.
The obligation of the Lenders to make any Loans and of the Administrative
Agent to issue any Letter of Credit, is subject to the further conditions
precedent that: (a) no Default or Event of Default shall have occurred and be
continuing as of the date of the making of such Loan or date of issuance of such
Letter of Credit, or would exist immediately after giving effect thereto, (b)
the representations and warranties made or deemed made by the Borrower and each
other Loan Party in the Loan Documents to which it is a party, shall be true and
correct on and as of the date of the making of such Loan or date of issuance of
such Letter of Credit with the same force and effect as if made on and as of
such date except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations
and warranties shall have been true and accurate on and as of such earlier date)
and except for changes in factual circumstances specifically and expressly
permitted hereunder and (c) in the case of the borrowing of Revolving Loans, the
Administrative Agent shall have received a timely Notice of Borrowing. Each
Credit Event shall constitute a certification by the Borrower to the effect set
forth in the preceding sentence (both as of the date of the giving of notice
relating to such Credit Event and, unless the Borrower otherwise notifies the
Administrative Agent prior to the date of such Credit Event, as of the date of
the occurrence of such Credit Event). In addition, if such Credit Event is the
making of a Loan or the issuance of a Letter of Credit, the Borrower shall be
deemed to have represented to the Administrative Agent and the Lenders at the
time such Loan is made or Letter of Credit is issued that all conditions to the
making of such Loan or issuance of such Letter of Credit contained in Article
VI. have been satisfied.
51
Article VII. Representations and Warranties
Section 7.1. Representations and Warranties.
In order to induce the Administrative Agent and each Lender to enter into
this Agreement and to make Loans and issue Letters of Credit, the Borrower
represents and warrants to the Administrative Agent and each Lender as follows:
(a) Organization; Power; Qualification. Each of the Loan Parties is a
corporation, partnership, trust or other legal entity, duly organized or formed,
validly existing and, except as set forth in Schedule 7.1(a), in good standing
under the jurisdiction of its incorporation or formation, has the power and
authority to own or lease its respective properties and to carry on its
respective business as now being and hereafter proposed to be conducted and is
duly qualified and is in good standing as a foreign corporation, partnership or
other legal entity and authorized to do business, in each jurisdiction in which
the character of its properties or the nature of its business requires such
qualification or authorization and where the failure to be so qualified or
authorized could reasonably be expected to have, in each instance, a Material
Adverse Effect.
(b) Ownership Structure. Schedule 7.1.(b) correctly sets forth the
corporate structure and ownership interests of the Borrower's Subsidiaries
including the correct legal name of each Subsidiary, its jurisdiction of
formation, the Persons holding equity interests in such Subsidiary and their
percentage equity or voting interest in such Subsidiary. Except as set forth in
such Schedule:
(i) no Subsidiary has issued to any third party any securities
convertible into such Subsidiary's capital stock or other equity interests
or any options, warrants or other rights to acquire any securities
convertible into such capital stock or other equity interests, and
(ii) the outstanding capital stock of, or other equity interests in,
each such Subsidiary are owned by the Borrower and its Subsidiaries
indicated on such Schedule, free and clear of all Liens, warrants, options
and rights of others of any kind whatsoever. All such outstanding capital
stock and other equity interests have been validly issued and, in the case
of capital stock, are fully paid and nonassessable.
(c) Authorization of Agreement. Notes. Loan Documents and Borrowings. The
Borrower has the right and power, and has taken all necessary action to
authorize it, to borrow hereunder. The Borrower and the other Loan Parties each
has the right and power, and has taken all necessary action to
52
authorize it, to execute, deliver and perform each of the Loan Documents to
which it is a party in accordance with their respective terms and to consummate
the transactions contemplated hereby and thereby. This Agreement and each of the
other Loan Documents to which the Borrower or any other Loan Party is a party
have been duly executed and delivered by the duly authorized officers of such
Person and each is a legal, valid and binding obligation of such Person
enforceable against such Person in accordance with its respective terms.
(d) Compliance of Agreement, Notes, Loan Documents and Borrowing with Laws,
etc. The execution, delivery and performance of this Agreement, the Notes and
the other Loan Documents to which the Borrower or any other Loan Party is a
party in accordance with their respective terms and the borrowings hereunder do
not and will not, by the passage of time, the giving of notice, or otherwise:
(i) require any Governmental Approval or violate any Applicable Law (including
all Environmental Laws) relating to the Borrower or any other Loan Party; (ii)
conflict with, result in a breach of or constitute a default under the articles
of incorporation or the bylaws of the Borrower or the organizational documents
of any other Loan Party, or any indenture, agreement or other instrument to
which the Borrower or any other Loan Party is a party or by which it or any of
its respective properties may be bound; or (iii) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by the Borrower or any other Loan Party other than
in favor of the Administrative Agent for the benefit of the Lenders.
(e) Compliance with Law; Governmental Approvals. The Borrower, each
Subsidiary and each other Loan Party is in compliance with each Governmental
Approval applicable to it and in compliance with all other Applicable Law
relating to the Borrower, a Subsidiary or such Loan Party except for
noncompliances which, and Governmental Approvals the failure to possess which
could not, individually or in the aggregate, reasonably be expected to cause a
Default or Event of Default or have a Material Adverse Effect.
(f) Ownership of Properties; Liens. As of the Agreement Date, Part I of
Schedule 7.1.(f) sets forth all of the real property owned or leased by the
Borrower, its Subsidiaries, any other Loan Party and any of their Unconsolidated
Affiliates, and if a Developed Property, the applicable Occupancy Rate thereof.
The Borrower and such other Persons have good record and marketable fee simple
title (or valid leasehold title if so designated on such Schedule) to all of
such real property. There are no mortgages, deeds of trust, indentures, debt
instruments or other agreements creating a Lien against any of such real
property or any other property or assets of the Borrower or any of its
Subsidiaries except for Permitted Liens and except as set forth on Part II of
Schedule 7.l.(f).
53
(g) Indebtedness. Schedule 7. l.(g) is a complete and correct listing of
all Indebtedness of the Borrower, its Subsidiaries and the other Loan Parties,
including all guaranties of the Borrower, its Subsidiaries and the other Loan
Parties and all letters of credit and acceptance facilities extended to the
Borrower, any Subsidiary or any other Loan Party, other than Indebtedness
between Borrower and its Subsidiaries. The Borrower, its Subsidiaries and the
other Loan Parties have performed and are in compliance with all of the terms of
such Indebtedness and all instruments and agreements relating thereto, and no
default or event of default, or event or condition which with the giving of
notice, the lapse of time, or both would constitute such a default or event of
default, exists with respect to any such Indebtedness.
(h) Material Contracts. Schedule 7. 1.(h) is a true, correct and complete
listing of all Material Contracts. Each of the Borrower, its Subsidiaries and
the other Loan Parties that are parties to any Material Contract has performed
and is in compliance with all of the terms of such Material Contract, and no
default or event of default, or event or condition which with the giving of
notice, the lapse of time, or both, would constitute such a default or event of
default, exists with respect to any such Material Contract.
(i) Litigation. Except as set forth in Schedule 7.1(i), there are no
actions, suits or proceedings pending (nor, to the knowledge of the Borrower,
are there any actions, suits or proceedings threatened, nor is there any
reasonable basis therefor) against or in any other way relating adversely to or
affecting the Borrower, any Subsidiary or any other Loan Party or any of its
respective property in any court or before any arbitrator of any kind or before
or by any other Governmental Authority which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect, and there are no
strikes, slow downs, work stoppages or walkouts or other labor disputes in
progress or threatened relating to the Borrower, any Subsidiary or any other
Loan Party.
(j) Taxes. All federal, state and other tax returns of the Borrower, any
Subsidiary or Loan Party required by Applicable Law to be filed have been duly
filed, and all federal, state and other taxes, assessments and other
governmental charges or levies upon the Borrower, any Subsidiary and each Loan
Party and its respective properties, income, profits and assets which are due
and payable have been paid, except any such nonpayment which is at the time
permitted under Section 8.6. None of the United States income tax returns of the
Borrower, its Subsidiaries or any Loan Party is under audit as of the Agreement
Date. All charges, accruals and reserves on the books of the Borrower, each of
its Subsidiaries and each other Loan Party in respect of any taxes or other
governmental charges are in accordance with GAAP.
54
(k) Financial Statements. The Borrower has furnished to each Lender copies
of (i) the audited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries for the fiscal year ending November 30, 1997, and the
related consolidated statements of income, retained earnings and cash flow for
the fiscal year ending on such date, with the opinion thereon of Price
Waterhouse, and (ii) the unaudited consolidated balance sheet of the Borrower
and its consolidated Subsidiaries for the fiscal quarter ending November 30,
1997, and the related consolidated statements of income, retained earnings and
cash flow of the Borrower and its consolidated Subsidiaries for the two fiscal
quarter period ending on such date. Such balance sheets and statements
(including in each case related schedules and notes) are true, complete and
correct and present fairly, in accordance with GAAP consistently applied
throughout the periods involved, the consolidated financial position of the
Borrower and its consolidated Subsidiaries as at their respective dates and the
results of operations and the cash flow for such periods (subject, as to interim
statements, to changes resulting from normal year-end audit adjustments). None
of the Borrower, any of its consolidated Subsidiaries nor any other Loan Party
has on the Agreement Date any material contingent liabilities, liabilities,
liabilities for taxes, unusual or long-term commitments or unrealized or forward
anticipated losses from any unfavorable commitments, except as referred to or
reflected or provided for in said financial statements. Each of the Borrower,
its Subsidiaries and the other Loan Parties is Solvent.
(l) Unencumbered Pool Properties. Each of the Unencumbered Pool Properties
qualifies as an Eligible Property.
(m) No Material Adverse Change. Since February 28, 1998, there has been no
Material Adverse Change in the consolidated financial condition, results of
operations, business or prospects of the Borrower or any of its consolidated
Subsidiaries.
(n) ERISA. Each member of the ERISA Group has fulfilled its obligations
under the minimum funding standards of ERISA and the Internal Revenue Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Internal Revenue Code with
respect to each Plan. No member of the ERISA Group has (i) sought a waiver of
the minimum funding standard under Section 412 of the Internal Revenue Code in
respect of any Plan, (ii) failed to make any contribution or payment to any Plan
or Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security under
ERISA or the Internal Revenue Code or (iii) incurred any liability under Title
IV of ERISA other than a liability to the PBGC for premiums under Section 4007
of ERISA.
55
(o) Absence of Defaults. Neither the Borrower, any Subsidiary nor any other
Loan Party is in default under its articles of incorporation, bylaws,
partnership agreement or other similar organizational documents, and no event
has occurred, which has not been remedied, cured or waived: (i) which
constitutes a Default or an Event of Default; or (ii) which constitutes, or
which with the passage of time, the giving of notice, or both would constitute,
a default or event of default by the Borrower, any Subsidiary or any Loan Party
under any agreement (other than this Agreement) or judgment, decree or order to
which the Borrower, any Subsidiary or other Loan Party is a party or by which
the Borrower, any Subsidiary or Loan Party or any of their respective properties
may be bound where such default or event of default could, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(p) Environmental Laws. In the ordinary course of business, each of the
Borrower and its Subsidiaries conducts an ongoing review of the effect of
Environmental Laws on its respective business, operations and properties,
including without limitation, its respective Real Property Assets, in the course
of which the Borrower or such Subsidiary identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures required to achieve or
maintain compliance with Environmental Laws or required as a condition of any
Governmental Approval, any contract, or any related constraints on operating
activities, any costs or liabilities in connection with off-site disposal of
wastes or Hazardous Materials, and any actual or potential liabilities to third
parties, including employees, and any related costs and expenses). The Borrower,
its Subsidiaries and the other Loan Parties have obtained all Governmental
Approvals which are required under Environmental Laws, and are in compliance
with all terms and conditions of such Governmental Approvals, which the failure
to obtain or to comply with could reasonably be expected to have a Material
Adverse Effect. Each of the Borrower, its Subsidiaries and the other Loan
Parties is also in compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules, and
timetables contained in the Environmental Laws the failure with which to comply
could reasonably be expected to have a Material Adverse Effect. Except as set
forth in Schedule 7.l.(p), neither the Borrower, any Subsidiary nor any other
Loan Party is aware of, or has received notice of, any past, present, or future
events, conditions, circumstances, activities, practices, incidents, actions, or
plans which, with respect to the Borrower, any of its Subsidiaries or any other
Loan Party may interfere with or prevent compliance or continued compliance with
Environmental Laws, or may give rise to any common-law or legal liability, or
otherwise form the basis of any claim, action, demand, suit, proceeding,
hearing, study, or investigation, based on or related to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling or the emission, discharge, release or threatened release
56
into the environment, of any pollutant, contaminant, chemical, or industrial,
toxic, or other Hazardous Material; and there is no civil, criminal, or
administrative action, suit, demand, claim, hearing, notice, or demand letter,
notice of violation, investigation, or proceeding pending or, to the knowledge
of the Borrower, any Subsidiary or any other Loan Party, after due inquiry,
threatened, against the Borrower, any Subsidiary or any other Loan Party
relating in any way to Environmental Laws.
(q) Investment Company; Public Utility Holding Company. Neither the
Borrower, any Subsidiary nor any other Loan Party is (i) an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, (ii) a "holding
company" or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended, or
(iii) subject to any other Applicable Law which purports to regulate or restrict
its ability to borrow money or to consummate the transactions contemplated by
this Agreement or to perform its obligations under any Loan Document to which it
is a party.
(r) Margin Stock. Neither the Borrower, any Subsidiary nor any other Loan
Party is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying "margin stock" within the meaning of Regulations
G or U of the Board of Governors of the Federal Reserve System.
(s) Affiliate Transactions. Except for transactions permitted under Section
10.11., neither the Borrower, any Subsidiary nor any other Loan Party is a party
to or bound by any agreement or arrangement (whether oral or written) to which
any Affiliate of the Borrower, any Subsidiary or other Loan Party is a party.
(t) Intellectual Property. The Borrower and each Subsidiary owns or has the
right to use, under valid license agreements or otherwise, all patents,
licenses, franchises, trademarks, trademark rights, trade names, trade name
rights, trade secrets and copyrights (collectively, "Intellectual Property")
necessary to, or used in, the conduct of its businesses as now conducted and as
contemplated by the Loan Documents, without known conflict with any patent,
license, franchise, trademark, trade secret, trade name, copyright, or other
proprietary right of any other Person.
(u) Accuracy and Completeness of Information. All written information,
reports and other papers and data furnished to any of the Agents or any Lender
by, on behalf of, or at the direction of, the Borrower, any Subsidiary or any
other Loan Party were, at the time the same were so
57
furnished, complete and correct in all material respects, to the extent
necessary to give the recipient a true and accurate knowledge of the subject
matter, or, in the case of financial statements, present fairly, in accordance
with GAAP consistently applied throughout the periods involved, the financial
position of the Persons involved as at the date thereof and the results of
operations for such periods. No fact is known to the Borrower which has had, or
may in the future have (so far as the Borrower can reasonably foresee), a
Material Adverse Effect which has not been set forth in the financial statements
referred to in Section 7.l.(k) or in such information, reports or other papers
or data or otherwise disclosed in writing to the Administrative Agent and the
Lenders prior to the Effective Date. No document furnished or written statement
made to any of the Administrative Agent, the Documentation Agent or any Lender
in connection with the negotiation, preparation of execution of this Agreement
or any of the other Loan Documents contains or will contain any untrue statement
of a fact material to the creditworthiness of the Borrower, any Subsidiary or
any other Loan Party or omits or will omit to state a material fact necessary in
order to make the statements contained therein not misleading.
(v) REIT Status. The Borrower qualifies as a REIT. Each of the Borrower's
Subsidiaries qualifies as, and is entitled to treatment as, a "qualified REIT
subsidiary" under the Internal Revenue Code.
(w) Not Plan Assets. The assets of the Borrower, its Subsidiaries and the
other Loan Party do not and will not constitute "plan assets", within the
meaning of ERISA, the Internal Revenue Code and the respective regulations
promulgated thereunder. The execution, delivery and performance of this
Agreement, and the borrowing and repayment of amounts hereunder, do not and will
not constitute "prohibited transactions" under ERISA or the Internal Revenue
Code.
(x) Business. As of the Agreement Date, the Borrower, its Subsidiaries and
the other Loan Parties are engaged in the business of owning, managing and
developing industrial, office, office/research and development, retail and
multifamily properties and other business activities incidental thereto.
Section 7.2. Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement or other
instrument delivered by or on behalf of the Borrower, any Subsidiary or any
other Loan Party to any of the Agents or any Lender pursuant to or in connection
with this Agreement or any of the other Loan Documents (including, but not
limited to, any such statement made in or in connection with any amendment
thereto or any statement contained in any certificate, financial statement or
other instrument delivered by or on behalf of the Borrower or any other Loan
Party prior to the Agreement Date and delivered to any of the
58
Agents or any Lender in connection with closing the transactions contemplated
hereby) shall constitute representations and warranties made by the Borrower
under this Agreement. All representations and warranties made under this
Agreement and the other Loan Documents shall be deemed to be made at and as of
the Agreement Date, the Effective Date and at and as of the date of the
occurrence of any Credit Event, except to the extent that such representations
and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as of
such earlier date) and except for changes in factual circumstances specifically
permitted hereunder. All such representations and warranties shall survive the
effectiveness of this Agreement, the execution and delivery of the Loan
Documents and the making of the Loans and issuance of any Letter of Credit.
Article VIII. Affirmative Covenants
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.7., all of the Lenders) shall otherwise
consent in the manner provided for in Section 13.7., the Borrower shall:
Section 8.1. Preservation of Existence and Similar Matters.
Except as otherwise permitted under Section 10.7., preserve and maintain,
and cause each Subsidiary and each other Loan Party to preserve and maintain,
its respective existence, rights, franchises, licenses and privileges in the
jurisdiction of its incorporation or formation and qualify and remain qualified
and authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification and
authorization and where the failure to be so authorized and qualified could
reasonably be expected to have a Material Adverse Effect.
Section 8.2. Compliance with Applicable Law and Material Contracts.
Comply, and cause each Subsidiary and each other Loan Party to comply, with
(a) all Applicable Law, including the obtaining of all Governmental Approvals,
the failure to comply with which could reasonably be expected to have a Material
Adverse Effect, and (b) all terms and conditions of all Material Contracts to
which it is a party.
Section 8.3. Maintenance of Property.
In addition to the requirements of any of the other Loan Documents, (a)
protect and preserve, and cause each Subsidiary and other Loan Party to protect
and preserve, all of its material properties, including, but not limited to, all
Real Property Assets and all Intellectual Property, and maintain in good repair,
working order and condition all tangible properties, ordinary wear and
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tear excepted and (b) from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements and additions to such properties, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
Section 8.4. Conduct of Business.
At all times carry on, and cause its Subsidiaries and the other Loan
Parties to carry on, its respective businesses as described in Section 7.1.(x).
Section 8.5. Insurance.
In addition to the requirements of any of the other Loan Documents,
maintain, and cause each Subsidiary and Loan Party to maintain, insurance with
financially sound and reputable insurance companies against such risks and in
such amounts as is customarily maintained by Persons engaged in similar
businesses or as may be required by Applicable Law. Not in limitation of the
foregoing, the Borrower shall, and shall cause its Subsidiaries and the other
Loan Parties to, maintain builder's risk insurance during any period of
construction and, upon completion, "all risk" insurance in an amount at least
equal to the greater of (i) eighty percent (80%) of the replacement cost of the
improvements, if any, on each of its Real Property Assets, and (ii) an amount
sufficient to avoid the application of any coinsurance clause contained in the
related insurance policy, with insurers having an A.M. Best policyholder's
rating of not less than A- and financial size category of not less than X, which
insurance shall in any event not provide for materially less coverage than the
insurance in effect on the Agreement Date. The Borrower will deliver to the
Lenders (i) upon request of any Lender through the Administrative Agent from
time to time full information as to the insurance carried, (ii) within five (5)
days of receipt of notice from any insurer a copy of any notice of cancellation
or material change in coverage from that existing on the Agreement Date and
(iii) promptly upon receipt, notice of any cancellation or nonrenewal of
coverage by the Borrower, any Subsidiary or any other Loan Party.
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Section 8.6. Payment of Taxes and Claims.
Pay or discharge, and cause each Subsidiary and other Loan Party to pay and
discharge, when due (a) all taxes, assessments and governmental charges or
levies imposed upon it or upon its income or profits or upon any properties
belonging to it, and (b) all lawful claims of materialmen, mechanics, carriers,
warehousemen and landlords for labor, materials, supplies and rentals which, if
unpaid, might become a Lien on any properties of such Person; provided, however,
that this Section shall not require the payment or discharge of any such tax,
assessment, charge, levy or claim which is being contested in good faith by
appropriate proceedings which operate to suspend the collection thereof and for
which adequate reserves have been established on the books of the Borrower, such
Subsidiary or such other Loan Party, as applicable, in accordance with GAAP.
Section 8.7. Visits and Inspections.
Permit, and cause each Subsidiary and other Loan Party to permit,
representatives or agents of any of the Administrative Agent, the Documentation
Agent or any Lender, from time to time, as often as may be reasonably requested
and at the expense of Borrower, but only during normal business hours, to: (a)
visit and inspect all properties of the Borrower, such Subsidiary or such other
Loan Party; (b) inspect, make copies and make extracts from their respective
relevant books and records, including but not limited to management letters
prepared by independent accountants; and (c) discuss with its principal
officers, and its independent accountants, its business, assets, liabilities,
financial conditions, results of operations and business prospects. If requested
by the Administrative Agent, the Borrower shall execute an authorization letter
addressed to its accountants authorizing the Administrative Agent or any Lender
to discuss the financial affairs of the Borrower and any Subsidiary with its
accountants.
Section 8.8. Use of Proceeds; Letters of Credit.
Use the proceeds of Loans and all Letters of Credit for general corporate
purposes including, but not limited to, (a) the acquisition, renovation,
predevelopment and development of Real Property Assets, (b) the repayment of
existing Indebtedness or scheduled amortization payments on debt and (c) capital
expenditures and general working capital needs. The Borrower shall not, and
shall not permit any Subsidiary or any other Loan Party to, use any part of such
proceeds or Letters of Credit to purchase or carry, or to reduce or retire or
refinance any credit incurred to purchase or carry, any margin stock (within the
meaning of Regulations U and X of the Board of Governors of the Federal Reserve
System) or to extend credit to others for the purpose of purchasing or carrying
any such margin stock.
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Section 8.9. Environmental Matters.
Comply, and cause all of its Subsidiaries to comply, with all Environmental
Laws. If the Borrower, any Subsidiary or any other Loan Party shall (a) receive
notice that any violation of any Environmental Law may have been committed or is
about to be committed by such Person, (b) receive notice that any administrative
or judicial complaint or order has been filed or is about to be filed against
the Borrower, any Subsidiary or any other Loan Party alleging violations of any
Environmental Law or requiring the Borrower, or Subsidiary or any other Loan
Party to take any action in connection with the release of Hazardous Materials
or (c) receive any notice from a Governmental Authority or private party
alleging that the Borrower, or Subsidiary or any other Loan Party may be liable
or responsible for costs associated with a response to or cleanup of a release
of a Hazardous Materials or any damages caused thereby, and such notices,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, the Borrower shall provide the Administrative Agent
with a copy of such notice within ten (10) days after the receipt thereof by the
Borrower or any of the Subsidiaries. The Borrower and the Subsidiaries shall
promptly take all actions necessary to prevent the imposition of any Liens on
any of their respective properties arising out of or related to any
Environmental Laws.
Section 8.10. Books and Records.
Maintain, and cause each of the Subsidiaries to maintain, books and records
pertaining to its business operations in such detail, form and scope as is
consistent with good business practice in accordance with GAAP.
Section 8.11. REIT Status.
At all times maintain its status as a REIT and take all such action as may
be necessary to maintain each of its Subsidiaries as a "qualified REIT
subsidiary" under the Internal Revenue Code.
Section 8.12. Further Assurances.
At the Borrower's cost and expense, upon request of the Administrative
Agent or the Documentation Agent, duly execute and deliver or cause to be duly
executed and delivered, to the Administrative Agent or the Documentation Agent
such further instruments, documents and certificates, and do and cause to be
done such further acts that may be necessary or advisable in the opinion of the
Administrative Agent or the Documentation Agent to carry out more effectively
the provisions and purposes of this Agreement and the other Loan Documents.
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Section 8.13. Additional Subsidiaries.
Within thirty (30) days of any Person becoming a Material Subsidiary after
the Agreement Date, deliver to the Administrative Agent each of the following in
form and substance satisfactory to the Administrative Agent: (a) a Guaranty
executed by such Material Subsidiary and (b) the items that would have been
delivered under Sections 6.1.(a)(iii), (viii) through (xiii) and (xvii) if such
Material Subsidiary had been one on the Agreement Date.
Section 8.14. Exchange Listing.
Maintain at least one class of common shares of the Borrower having trading
privileges on the New York Stock Exchange or the American Stock Exchange or
which is the subject of price quotations in the over-the-counter market as
reported by the National Association of Securities Dealers Automated Quotation
System.
Section 8.15. Interest Rate Agreements.
The Borrower shall obtain and thereafter maintain in effect Interest Rate
Agreements in form and substance reasonably satisfactory to the Administrative
Agent in respect of all floating rate Indebtedness the aggregate notional
principal of which from time to time exceeds forty percent (40%) of the value of
the assets of the Borrower and its Subsidiaries measured on a consolidated basis
in accordance with GAAP as determined from time to time. The Borrower shall
maintain such arrangements in full force and effect as provided therein, and
shall not, without the approval of the Lenders, modify terminate, or transfer
such arrangements during such period.
Article IX. Information
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.7., all of the Lenders) shall otherwise
consent in the manner set forth in Section 13.7., the Borrower shall furnish (a)
with respect to the information referenced below in Section 9.3 and Section
9.4(g), to each Lender at its Lending Office, and (b) with respect to all other
information, to the Administrative Agent at its Lending Office and
Administrative Agent will then forward such information to the other Lenders
promptly:
Section 9.1. Quarterly Financial Statements.
As soon as available and in any event within forty-five (45) days after the
close of each of the first, second and third fiscal quarters of the Borrower,
the
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consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such period and the related consolidated statements of income, retained earnings
and cash flows of the Borrower and its Subsidiaries for such period, setting
forth in each case in comparative form the figures for the corresponding periods
of the previous fiscal year, all of which shall be certified by the chief
financial officer of the Borrower, in his or her opinion, to present fairly, in
accordance with GAAP, the consolidated financial position of the Borrower and
its Subsidiaries as at the date thereof and the results of operations for such
period (subject to normal year-end audit adjustments).
Section 9.2. Year-End Statements.
As soon as available and in any event within ninety (90) days after the end
of each fiscal year of the Borrower, the audited consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of such fiscal year and the
related audited consolidated statements of income, retained earnings and cash
flows of the Borrower and its Subsidiaries for such fiscal year, setting forth
in comparative form the figures as at the end of and for the previous fiscal
year, all of which shall be certified by (i) the chief financial officer of the
Borrower, in his or her opinion, to present fairly, in accordance with GAAP, the
financial position of the Borrower and its Subsidiaries as at the date thereof
and the result of operations for such period and (ii) independent certified
public accountants of recognized national standing acceptable to the Requisite
Lenders, whose certificate shall be unqualified.
Section 9.3. Compliance Certificate.
At the time the financial statements and reports are furnished pursuant to
Sections 9.1. and 9.2., a certificate in the form of Exhibit N (a "Compliance
Certificate") executed by the chief financial officer of the Borrower: (a)
setting forth in reasonable detail as at the end of such quarterly accounting
period or fiscal year, as the case may be, the calculations required to
establish whether or not the Borrower, and when appropriate its consolidated
Subsidiaries, were in compliance with the covenants contained in Sections 10.1.,
10.4., and 10.6.; and (b) stating that, to the best of his or her knowledge,
information and belief, no Default or Event of Default exists, or, if such is
not the case, specifying such Default or Event of Default and its nature, when
it occurred and whether it is continuing and the steps being taken by the
Borrower with respect to such event, condition or failure. At the time the
financial statements are furnished pursuant to Section 9.2., the Borrower will
deliver to the Lenders a certificate of the independent accountants performing
the audit of such financial statements to the effect that, in making such audit,
nothing came to their attention that caused them to believe that the Borrower
failed to comply with any of the terms, covenants, provisions or conditions
contained in this Agreement insofar as they relate to financial matters. Such
accountants,
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however, shall not be liable to any Person by reason of their failure to obtain
knowledge of any Event of Default or Default which would not be disclosed in the
course of an audit conducted in accordance with GAAP.
Section 9.4. Other Information.
(a) Not later than January 1 of each year, the proposed budget for the
Borrower and its Subsidiaries for the fiscal year commencing on the immediately
preceding December 1, describing strategies for anticipated growth, marketing
and capital needs and otherwise in form and detail reasonably acceptable to the
Requisite Lenders;
(b) [intentionally omitted];
(c) at the time the financial statements and reports are required to be
furnished pursuant to Sections 9.1. and 9.2., operating statements for each
Unencumbered Pool Property for the immediately preceding fiscal quarter or
fiscal year of the Borrower, as applicable, in each case certified by a
representative of the Borrower as being true and correct in all material
respects and prepared in accordance with GAAP;
(d) at the time the financial statements and reports are furnished pursuant
to Section 9.2., a property budget and projections for each Unencumbered Pool
Property for the coming fiscal year of the Borrower;
(e) as soon as available and in any event within forty-five (45) days after
the end of each fiscal quarter of the Borrower, a statement demonstrating a
comparison between the cost budget of each Real Property Asset in development to
the actual disbursements made, together with a description of each such Real
Property Asset setting forth the ownership, scope, status of completion and
occupancy, if applicable, of each such Real Property Asset, certified as
complete and correct and as having been prepared in accordance with GAAP,
consistently applied, by the chief financial officer of the Borrower;
(f) [intentionally omitted];
(g) within ten (10) Business Days of the filing thereof, copies of all
registration statements (excluding the exhibits thereto and any registration
statements on Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K
(or their equivalents) and all other periodic reports which the Borrower, any
Subsidiary or any other Loan Party shall file with the Securities and Exchange
Commission (or any Governmental Authority substituted therefor) or any national
securities exchange;
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(h) promptly upon the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed and promptly upon the issuance thereof copies of all press releases
issued by the Borrower, any Subsidiary or any other Loan Party;
(i) within forty-five (45) days after the end of each fiscal quarter of the
Borrower, an updated Schedule 7.1.(f), certified by the chief financial officer
of the Borrower as true, correct and complete as of the date such updated
schedules are delivered;
(j) if and when any member of the ERISA Group (i) gives or is required to
give notice to the PBGC of any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability under
Title IV of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer any Plan, a copy of such notice; (iv) applies
for a waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to
make any payment or contribution to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security, a certificate of the controller of the
Borrower setting forth details as to such occurrence and action, if any, which
the Borrower or applicable member of the ERISA Group is required or proposes to
take;
(k) to the extent the Borrower, any Subsidiary or any other Loan Party is
aware of the same, prompt notice of the commencement of any proceeding or
investigation by or before any Governmental Authority and any action or
proceeding in any court or other tribunal or before any arbitrator against or in
any other way relating adversely to, or adversely affecting, the Borrower, such
Subsidiary or such Loan Party or any of their respective properties, assets or
businesses which, if determined or resolved adversely to such Person, could
reasonably be expected to have a Material Adverse Effect, and prompt notice of
the receipt of notice that any United States income tax returns of the Borrower,
any of its Subsidiaries or any other Loan Party are being audited;
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(1) a copy of any amendment to the declaration of trust, articles of
incorporation, bylaws, partnership agreement or other similar organizational
documents of the Borrower, any Subsidiary or any other Loan Party within five
(5) Business Days of the effectiveness thereof;
(m) prompt notice of any change in the senior management of the Borrower,
any Subsidiary or any other Loan Party and any change in the business, assets,
liabilities, financial condition, results of operations or business prospects of
the Borrower, any Subsidiary or any other Loan Party which has had or may have
Material Adverse Effect.
(n) prompt notice of the occurrence of any Default or Event of Default or
any event which constitutes or which with the passage of time, the giving of
notice, or otherwise, would constitute a default or event of default by the
Borrower, any Subsidiary or any other Loan Party under any Material Contract to
which any such Person is a party or by which any such Person or any of its
respective properties may be bound;
(o) prompt notice of any order, judgment or decree in excess of $500,000
having been entered against the Borrower, any Subsidiary or any other Loan Party
or any of their respective properties or assets;
(p) any notification of a material violation of any Applicable Law or any
inquiry shall have been received by the Borrower, any Subsidiary or any other
Loan Party from any Governmental Authority;
(q) prompt notice of the acquisition, incorporation or other creation of
any Subsidiary, the purpose for such Subsidiary, the nature of the assets and
liabilities thereof;
(r) the proposed sale, transfer or other disposition of any material assets
of the Borrower, any Subsidiary or any other Loan Party to any other Subsidiary,
Affiliate or other Person;
(s) prompt notice of any strikes, slow downs, work stoppages or walkouts or
other labor disputes in progress or threatened relating to the Borrower, any
Subsidiary or any other Loan Party;
(t) promptly upon entering into any Material Contract after the Agreement
Date, a copy to the Administrative Agent of such Material Contract; and
(u) from time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or further
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information regarding the business, assets, liabilities, financial condition,
results of operations or business prospects of the Borrower, any of its
Subsidiaries or any other Loan Party as the Administrative Agent or any Lender
may reasonably request.
Article X. Negative Covenants
For so long as this Agreement is in effect, unless (a) all Lenders consent
in the manner set forth in Section 13.7. to the violation of any of the
covenants set forth in Sections 10.1.(a) and 10.1(d), and (b) the Requisite
Lenders shall otherwise consent in the manner set forth in Section 13.7., the
Borrower shall not, directly or indirectly:
Section 10.1. Financial Covenants.
Permit:
(a) Leverage. The ratio of (i) the Total Liabilities of the Borrower and
its Subsidiaries determined on a consolidated basis to (ii) Gross Asset Value,
to be greater than 0.55 to 1.00 at any time.
(b) [Intentionally omitted.]
(c) Fixed Charge Coverage. The ratio of (i) EBITDA of the Borrower and its
Subsidiaries determined on a consolidated basis for the fiscal quarter period
most recently ended to (ii) Fixed Charges of the Borrower and its Subsidiaries
determined on a consolidated basis for such quarter, to be less than 1.75 to
1.00 at any time.
(d) Unencumbered Asset Test. The ratio of (i) the Capitalized NOI with
respect to all Unencumbered Pool Properties to (ii) the unsecured Total
Liabilities of the Borrower and its Subsidiaries determined on a consolidated
basis, to be less than 1.75 to 1.00 at any time.
(e) Unencumbered Asset Cash Flow Coverage. The ratio of (i) the Net
Operating Income for all Unencumbered Pool Properties for the prior fiscal
quarter period most recently ended to (ii) the greater of (x) actual Interest
Expense on Unsecured Indebtedness of the Borrower and its Subsidiaries for such
fiscal-quarter period determined on a consolidated basis or (y) imputed interest
expense on the outstanding Unsecured Indebtedness of the Borrower and its
Subsidiaries as of the end of such fiscal quarter period, assuming an interest
rate equal to 1.75% in excess of the then-current annual yield on seven-year
United States Treasury obligations issued most recently prior to such date, to
be less than 1.75 to 1.00 at any time.
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(f) Minimum Shareholder's Equity. The aggregate amount of the Shareholder's
Equity of the Borrower determined on a consolidated basis at any time to be less
than (i) $224,950,000.00 plus (ii) seventy-five percent (75%) of the Net
Proceeds of all Equity Issuances effected by the Borrower or any of its
Subsidiaries at any time after the Agreement Date plus (iii) one hundred percent
(100%) of the value generated by the issuance of operating partnership units.
(g) Secured Debt Ratio. The ratio of (i) the Secured Indebtedness of the
Borrower and its Subsidiaries determined on a consolidated basis to (ii) Gross
Asset Value, to be greater than 0.40 to 1.00 at any time.
Section 10.2. Indebtedness.
Create, incur, assume, or permit or suffer to exist, or permit any
Subsidiary or other Loan Party to create, incur, assume, or permit or suffer to
exist, any Indebtedness other than the following:
(a) the Obligations;
(b) Indebtedness set forth on Schedule 7.1(g) and any renewals, extensions,
amendments or refinancing's of such Indebtedness;
(c) intercompany Indebtedness among the Borrower and its Wholly Owned
Subsidiaries; provided, however, that the obligations of each obligor of such
Indebtedness shall be subordinate to the Obligations on terms acceptable to the
Requisite Lenders in their sole discretion;
(d) Indebtedness arising as a result of Contingent Obligations permitted
under Section 10.3.;
(e) other publicly issued debt or privately placed unsecured fixed rate
term debt which has a maturity after the Termination Date;
(f) Recourse Indebtedness in an aggregate principal amount not to exceed
$15,000,000.00 at any one time outstanding pursuant to the Borrower's current
recourse credit facility or any other recourse credit facilities that the
Borrower or its Subsidiaries may enter into after the date hereof; and
(g) warranties of products or services, in each case incurred in the
ordinary course of business; and
(h) other Indebtedness (other than Unsecured Indebtedness) incurred or
assumed after the Agreement Date so long as immediately prior to the incurring
or assumption thereof, and immediately thereafter and after giving
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effect thereto, no Default or Event of Default is or would be in existence,
including without limitation, a Default or Event of Default resulting from a
violation of any of the covenants contained in Section 10.1.
Section 10.3. Contingent Obligations.
Become or remain liable, or permit any Subsidiary to become or remain
liable, on or under any Contingent Obligation other than the following:
(a) Contingent Obligations in existence as of the Agreement Date and set
forth in Schedule 10.3.;
(b) Contingent Obligations under Interest Rate Agreements, approved by
Administrative Agent in its sole discretion, with respect to the Loans;
(c) the Reimbursement Obligations of the Borrower hereunder; and
(d) Contingent Obligations incurred in the ordinary course of business with
respect to surety and appeal bonds, performance and return-of-money bonds and
other similar obligations.
Section 10.4. Permitted Investments.
(a) Make any Investment, other than Investments existing on the date hereof
and other than Cash Equivalents, in or otherwise own, and shall not permit any
Subsidiary to make any Investment in or otherwise own, any of the following
items which would cause the value of such holdings of the Borrower and its
Subsidiaries (including Investments existing on the date hereof), determined on
a consolidated basis to exceed the following percentages of Gross Asset Value:
(i) Capital Stock, such that the aggregate value of such Capital Stock
calculated on the basis of the lower of cost or market, exceeds ten percent
(10%) of Gross Asset Value;
(ii) Investments made after the date hereof in partnerships, joint
ventures and other non-corporate Persons accounted for on an equity basis
(determined in accordance with GAAP), such that the aggregate book value
of such Investments exceeds ten percent (10%) of Gross Asset Value;
(iii) Mortgages in favor of the Borrower or any Subsidiary, such that
the aggregate book value of Indebtedness secured by such Mortgages exceeds
ten percent (10%) of Gross Asset Value;
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(iv) unimproved real estate (excluding unimproved real estate on which
development of a Property has commenced), such that the aggregate book
value of all such unimproved real estate exceeds five percent (5%) of Gross
Asset Value.
(v) (A) the unleased portion of Real Property Assets which is Under
Construction to exceed ten percent (10%) of total square footage owned by
the Borrower and any Subsidiary or (B) Construction in Process to exceed
ten percent (10%) of Gross Asset Value owned by the Borrower and any
Subsidiary.
(b) In addition to the foregoing limitations, the aggregate value of the
Investments subject to the limitations in the preceding clauses (i) through (iv)
shall not exceed twenty-five percent (25%) of such Gross Asset Value.
Section 10.5. Liens; Agreements Regarding Liens; Other Matters.
(a) Create, assume, incur or permit or suffer to exist, or permit any
Subsidiary or any other Loan Party to create, assume, incur or permit or suffer
to exist, any Lien (other than Permitted Liens) upon any of its properties,
assets, income or profits of any character whether now owned or hereafter
acquired;
(b) Enter into, assume or otherwise be bound by, or permit any Subsidiary
or any other Loan Party to enter into assume or otherwise be bound by any
agreement (other than the Loan Documents), prohibiting the creation or
assumption of any Lien upon its properties or assets, whether now owned or
hereafter acquired; or
(c) Create or otherwise cause or suffer to exist or become effective, or
permit any Subsidiary or any other Loan Party to create or otherwise cause or
suffer to exist or become effective, any consensual encumbrance or restriction
of any kind on the ability of any Subsidiary to: (i) pay dividends or make any
other distribution on any of the capital stock or other equity interests owned
by the Borrower, any Subsidiary or any other Loan Party; (ii) pay any
Indebtedness owed to the Borrower, any other Subsidiary or any other Loan Party;
(iii) make loans or advances to the Borrower, any Subsidiary or any other Loan
Party; or (iv) transfer any of its property or assets to the Borrower, any
Subsidiary or any other Loan Party.
Section 10.6. Restricted Payments.
Declare or make, or permit any Subsidiary or other Loan Party to declare or
make, any Restricted Payment; provided, however, that (a) so long as no Event of
Default specified in subsection (a), (b), (f) or (g) of Section 11.1. shall have
occurred and be continuing, or if as a result of the occurrence of any other
71
Event of Default the Obligations have not been accelerated, the Borrower may
make distributions to its shareholders during any period of four consecutive
fiscal quarters in an aggregate amount not to exceed ninety percent (90%) of its
Funds From Operations for such four-quarter period; and (b) Subsidiaries and
other Loan Parties may make Restricted Payments to the Borrower. Notwithstanding
anything contained in this Section to the contrary, the Borrower may make
distributions to its shareholders in the minimum amount necessary to maintain
compliance with Section 8.11.
Section 10.7. Merger, Consolidation and Sales of Assets.
(a) Enter into, or permit any Subsidiary or other Loan Party to enter into,
any transaction of merger or consolidation unless Borrower or such Subsidiary is
the surviving entity and, based on the assumption that the merger or
consolidation has occurred and measured as of the proposed closing date of such
transaction, no Default or Event of Default would exist; (b) liquidate, wind-up
or dissolve itself (or suffer any liquidation or dissolution) or permit any
Subsidiary or other Loan Party to do any of the foregoing; or (c) convey, sell,
lease, sublease, transfer or otherwise dispose of (x) in one transaction or a
series of transactions, all or any substantial part of its business or assets,
or the capital stock of or other equity interests in any of its Subsidiaries
(other than any Subsidiary which does not own an Unencumbered Pool Property or
which owns Unencumbered Pool Properties which have an aggregate market value of
less than or equal to $25,000,000.00), whether now owned or hereafter acquired
or (y) in one or more related transactions, Unencumbered Pool Properties which
individually and in the aggregate have a market value in excess of $25,000,000,
or permit any Subsidiary or other Loan Party to do any of the foregoing;
provided, however, that:
(i) any Subsidiary of the Borrower may merge or consolidate with the
Borrower or a Wholly Owned Subsidiary of the Borrower;
(ii) any Subsidiary or other Loan Party may sell, transfer or dispose
of its assets to the Borrower or a Wholly Owned Subsidiary of the Borrower;
and
(iii) a Wholly Owned Subsidiary may liquidate provided that
immediately prior to such liquidation and immediately thereafter and after
giving effect thereto, no Default or Event of Default is or would be in
existence;
Further, neither the Borrower, any Subsidiary nor any other Loan Party shall
enter into any sale-leaseback transactions or other transaction by which the
Borrower, a Subsidiary or a Loan Party shall remain liable as lessee (or the
economic equivalent thereof) of any real or personal property that it has sold
or leased to another Person.
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Section 10.8. No Plan Assets.
Shall not permit any Subsidiary or any other Loan Party to, permit any of
its respective assets to become or be deemed to be "plan assets" within the
meaning of ERISA, the Internal Revenue Code and the respective regulations
promulgated thereunder.
Section 10.9. Fiscal Year; Accounting Method.
Change its fiscal year from that in effect as of the Agreement Date or
change its method of accounting unless there shall occur a change in GAAP
requirements applicable to the Borrower and its Subsidiaries.
Section 10.10. Modifications to Organizational Documents and/or Material
Contracts.
(a) Modify any of the organizational documents of Borrower or any
Subsidiary without the prior written consent of the Requisite Lenders; or
(b) Enter into, or permit any Subsidiary or other Loan Party to enter into,
any amendment or modification to any Material Contract unless such amendments or
modifications are on terms no less favorable to such Subsidiary or other Loan
Party or provided that such amendment or modification could not reasonably be
expected to have a Material Adverse Effect or default in the performance of any
obligations of any Material Contract or permit any Material Contract to be
canceled or terminated prior to its stated maturity which, in each instance,
which could reasonably be expected to have a Material Adverse Effect.
Section 10.11. Transactions with Affiliates.
Permit to exist or enter into, and will not permit any of its Subsidiaries
or any of the other Loan Parties to permit to exist or enter into, any
transaction (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any Affiliate of the Borrower or with any
director, officer or employee of the Borrower or any other Loan Party, except
transactions in the ordinary course of and pursuant to the reasonable
requirements of the business of the Borrower or any of its Subsidiaries and upon
fair and reasonable terms which are fully disclosed to the Lenders and are no
less favorable to the Borrower or such Subsidiary than would be obtained in a
comparable arm's length transaction with a Person that is not an Affiliate.
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Article XI. Default
Section 11.1. Events of Default.
Each of the following shall constitute an Event of Default, whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of Applicable Law or pursuant to any judgment or order of
any Governmental Authority:
(a) Default in Payment of Principal. The Borrower shall fail to pay when
due (whether upon demand, quarterly to the extent required hereunder, at
maturity, by reason of acceleration or otherwise) the principal of any of the
Loans.
(b) Default in Payment of Other Amounts. The Borrower shall fail to pay
when due any interest on any of the Loans or any of the other payment
Obligations (other than the principal of any Loan) owing by the Borrower under
this Agreement or any other Loan Document.
(c) Default in Performance. (i) The Borrower shall fail to perform or
observe any term, covenant, condition or agreement on its part to be performed
or observed contained in Sections 8.4. through 8.9., 8.11. through 8.14.,
Article IX or Article X (other than Section 10.1), or (ii) the Borrower, any
Subsidiary or any other Loan Party shall fail to perform or observe any term,
covenant, condition or agreement contained in this Agreement or any other Loan
Document to which it is a party and not otherwise mentioned in this Section and
in the case of this clause (ii) such failure shall continue for a period of
thirty (30) days after the earlier of (x) the date upon which the Borrower, such
Subsidiary or such Loan Party obtains knowledge of such failure or (y) the date
upon which the Borrower has received written notice of such failure from the
Administrative Agent, or (iii) the Borrower, any Subsidiary or any other Loan
Party shall fail to perform or observe any term, covenant, condition or
agreement on its part to be performed or observed contained in Section 10.1. and
in the case of this clause (iii) such failure shall continue for a period of
thirty (30) days after the earlier of (x) the date upon which the Borrower, such
Subsidiary or such Loan Party obtains knowledge of such failure or (y) the date
upon which the Borrower has received written notice of such failure from the
Administrative Agent. No additional advances of the Loan proceeds shall be made
hereunder or under any of the other Loan Documents so long as any failure to
comply with the provisions of Section 10.1. hereof shall continue.
(d) Misrepresentations. Any written statement, representation or warranty
made or deemed made by or on behalf of the Borrower, any Subsidiary or any other
Loan Party under this Agreement or under any other Loan Document, or any
amendment hereto or thereto, or in any other writing or
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statement at any time furnished or made or deemed made by or on behalf of the
Borrower, any Subsidiary or any other Loan Party to the Administrative Agent or
any Lender, shall at any time prove to have been incorrect or misleading in any
material respect when furnished or made.
(e) Indebtedness Cross-Default.
(i) The Borrower, any Subsidiary or any other Loan Party shall fail to
pay when due and payable the principal of, or interest on, any Indebtedness
(other than the Loans) or any Contingent Obligations having an aggregate
outstanding principal amount of $10,000,000 or more; or
(ii) the maturity of any such Indebtedness shall have (x) been
accelerated in accordance with the provisions of any indenture, contract or
instrument evidencing, providing for the creation of or otherwise
concerning such Indebtedness or (y) been required to be prepaid prior to
the stated maturity thereof; or
(iii) any other event shall have occurred and be continuing which,
with or without the passage of time, the giving of notice, or otherwise,
would permit any holder or holders of such Indebtedness or Contingent
Obligation, any trustee or agent acting on behalf of such holder or holders
or any other Person, to accelerate the maturity of any such Indebtedness or
require any such Indebtedness to be prepaid prior to its stated maturity.
(f) Voluntary Bankruptcy Proceeding. The Borrower, any Subsidiary or any
other Loan Party shall: (i) commence a voluntary case under the Bankruptcy Code
of 1978, as amended or other federal bankruptcy laws (as now or hereafter in
effect); (ii) file a petition seeking to take advantage of any other Applicable
Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts; (iii) consent to, or fail to
contest in a timely and appropriate manner, any petition filed against it in an
involuntary case under such bankruptcy laws or other Applicable Laws or consent
to any proceeding or action described in the immediately following subsection;
(iv) apply for or consent to, or fail to contest in a timely and appropriate
manner, the appointment of, or the taking of possession by, a receiver,
custodian, trustee, or liquidator of itself or of a substantial part of its
property, domestic or foreign; (v) admit in writing its inability to pay its
debts as they become due; (vi) make a general assignment for the benefit of
creditors; (vii) make a conveyance fraudulent as to creditors under any
Applicable Law; or (viii) take any corporate or similar action for the purpose
of effecting any of the foregoing.
(g) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be
commenced against the Borrower, any Subsidiary or any other Loan
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Party, in any court of competent jurisdiction seeking: (i) relief under the
Bankruptcy Code of 1978, as amended or other federal bankruptcy laws (as now or
hereafter in effect) or under any other Applicable Laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding-up, or composition
or adjustment of debts; or (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of such Person, or of all or any substantial
part of the assets, domestic or foreign, of such Person and such actions remain
undischarged or unstayed for sixty (60) calendar days.
(h) Contest of Loan Documents. The Borrower or any other Loan Party shall
disavow, revoke or terminate any Loan Document to which it is a party or shall
otherwise challenge or contest in any action, suit or proceeding in any court or
before any Governmental Authority the validity or enforceability of this
Agreement, any Note or any other Loan Document.
(i) Judgment. A judgment or order for the payment of money shall be entered
against the Borrower, any Subsidiary or any other Loan Party by any court or
other tribunal which exceeds, individually or together with all other such
judgments or orders entered against the Borrower, the Subsidiaries and the other
Loan Parties, $5,000,000 in amount (or which shall otherwise have a Material
Adverse Effect) and such judgment or order shall continue for a period of thirty
(30) days without being stayed or dismissed through appropriate appellate
proceedings.
(j) Attachment. A warrant, writ of attachment, execution or similar process
shall be issued against any property of the Borrower or any other Loan Party
which exceeds, individually or together with all other such warrants, writs,
executions and processes, $5,000,000 in amount and such warrant, writ, execution
or process shall not be discharged, vacated, stayed or bonded for a period of
thirty (30) days; provided, however, that if a bond has been issued in favor of
the claimant or other Person obtaining such warrant, writ, execution or process,
the issuer of such bond shall execute a waiver or subordination agreement in
form and substance satisfactory to the Administrative Agent pursuant to which
the issuer of such bond subordinates its right of reimbursement, contribution or
subrogation to the Obligations and waives or subordinates any Lien it may have
on the assets of any Loan Party.
(k) ERISA. Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $5,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any
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Material Plan; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal from, or a
default, within the meaning of Section 42 19(c)(5) of ERISA, with respect to,
one or more Multiemployer Plans which could cause one or more members of the
ERISA Group to incur a current payment obligation in excess of $5,000,000.
(l) Loan Documents. An Event of Default (as defined therein) shall occur
under any of the other Loan Documents.
(m) Change of Control/Change in Management. ▇. ▇▇▇▇▇▇ Coues and any one of
▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall cease for any reason (including death or
disability) to be principally involved in the senior management of the Borrower
on a full-time basis and the Borrower shall fail to replace such individuals
with comparably qualified replacements within one hundred (100) days of the last
day of each such individual's employment with the Borrower without the approval
of the Requisite Lenders.
(n) Dissolution. Any order, judgment or decree is entered against the
Borrower, any Subsidiary or any other Loan Party decreeing the dissolution or
split up of the Borrower, such Subsidiary or such other Loan Party and such
order remains undischarged or unstayed for a period in excess of thirty (30)
days.
Section 11.2. Remedies Upon Event of Default.
Upon the occurrence and during the continuance of an Event of Default the
following provisions shall apply:
(a) Acceleration: Termination of Facilities.
(i) Automatic. Upon the occurrence of an Event of Default specified in
Sections 11.1.(f) or 11.1.(g), (A)(i) the principal of, and all accrued
interest on, the Loans and the Notes at the time outstanding, (ii) an
amount equal to the Stated Amount of all Letters of Credit then outstanding
and (iii) all of the other Obligations of the Borrower, including, but not
limited to, the other amounts owed to the Lenders and the Administrative
Agent under this Agreement, the Notes or any of the other Loan Documents
shall become immediately and automatically due and payable by the Borrower
without presentment, demand, protest, or other notice of any kind, all of
which are expressly waived by the Borrower and (B) each of the Commitments,
the obligation of the Lenders to make Revolving Loans hereunder and the
obligation of the Administrative Agent to issue Letters of Credit
hereunder, shall immediately and automatically terminate.
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(ii) Optional. If any other Event of Default shall have occurred and
be continuing, the Administrative Agent may, and at the direction or with
the consent of the Requisite Lenders shall: (I) declare (1) the principal
of, and accrued interest on, the Revolving Loans and the Notes at the time
outstanding, (2) an amount equal to the Stated Amount of all Letters of
Credit then outstanding and (3) all of the other Obligations, including,
but not limited to, the other amounts owed to the Lenders and the
Administrative Agent under this Agreement, the Notes or any of the other
Loan Documents to be forthwith due and payable, whereupon the same shall
immediately become due and payable without presentment, demand, protest or
other notice of any kind, all of which are expressly waived by the Borrower
and (II) terminate the Commitments and the obligation of the Lenders to
make Revolving Loans hereunder and the obligation of the Administrative
Agent to issue Letters of Credit hereunder. Not in limitation of the
foregoing, the Administrative Agent shall not exercise the remedy set forth
in the preceding sentence unless the Requisite Lenders have so directed the
Administrative Agent to exercise such remedy or have consented thereto.
(b) Loan Documents. The Requisite Lenders may direct the Administrative
Agent to, and the Administrative Agent if so directed shall, exercise any and
all of its rights under any and all of the other Loan Documents.
(c) Applicable Law. The Requisite Lenders may direct the Administrative
Agent to, and the Administrative Agent if so directed shall, exercise all other
rights and remedies it may have under any Applicable Law.
(d) Appointment of Receiver. To the extent permitted by Applicable Law, the
Administrative Agent and the Lenders shall be entitled to the appointment of a
receiver for the assets and properties of the Borrower and its Subsidiaries,
without notice of any kind whatsoever and without regard to the adequacy of any
security for the Obligations or the solvency of any party bound for its payment,
to take possession of all or any portion of the business operations of the
Borrower and its Subsidiaries and to exercise such power as the court shall
confer upon such receiver.
Section 11.3. Remedies Upon Certain Defaults.
Upon the occurrence and during the continuance of a Default specified in
Sections 11.1.(f) or 11.1.(g), the Commitments, and the obligation of the
Administrative Agent to issue Letters of Credit, shall immediately and
automatically terminate.
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Section 11.4. Allocation of Proceeds.
If an Event of Default shall have occurred and be continuing and the
Obligations have been accelerated, all payments received by the Administrative
Agent under any of the Loan Documents, in respect of any principal of or
interest on the Obligations or any other amounts payable by the Borrower
hereunder or thereunder, shall be applied by the Administrative Agent in the
following order and priority:
(a) amounts due to the Agents and the Lenders in respect of Fees and
expenses due under Section 13.2.;
(b) payments of interest on Loans and Reimbursement Obligations, to be
applied for the ratable benefit of the Lenders;
(c) payments of principal of Loans and Reimbursement Obligations, to be
applied for the ratable benefit of the Lenders;
(d) payments of cash amounts to the Administrative Agent in respect of
outstanding Letters of Credit pursuant to Section 2.13.;
(e) amounts due to the Administrative Agent and the Lenders pursuant to
Sections 12.7. and 13.10.;
(f) payments of all other amounts due under any of the Loan Documents, if
any, to be applied for the ratable benefit of the Lenders; and
(g) any amount remaining after application as provided above, shall be paid
to the Borrower or whomever else may be legally entitled thereto.
Section 11.5. Collateral Account.
(a) As collateral security for the prompt payment in full when due of all
Letter of Credit Liabilities, the Borrower hereby pledges and grants to the
Administrative Agent, for the benefit of the Administrative Agent and the
Lenders as provided herein, a security interest in all of its right, title and
interest in and to the Collateral Account and the balances from time to time in
the Collateral Account (including the investments and reinvestments therein
provided for below). The balances from time to time in the Collateral Account
shall not constitute payment of any Letter of Credit Liabilities until applied
by the Administrative Agent as provided herein. Anything in this Agreement to
the contrary notwithstanding, funds held in the Collateral Account shall be
subject to withdrawal only as provided in this Section and in Section 2.13.
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(b) Amounts on deposit in the Collateral Account shall be invested and
reinvested by the Administrative Agent in such Cash Equivalents as the
Administrative Agent shall determine in its sole discretion. All such
investments and reinvestments shall be held in the name of and be under the sole
dominion and control of the Administrative Agent. The Administrative Agent shall
exercise reasonable care in the custody and preservation of any funds held in
the Collateral Account and shall be deemed to have exercised such care if such
funds are accorded treatment substantially equivalent to that which the
Administrative Agent accords other funds deposited with the Administrative
Agent, it being understood that the Administrative Agent shall not have any
responsibility for taking any necessary steps to preserve rights against any
parties with respect to any funds held in the Collateral Account.
(c) If an Event of Default shall have occurred and be continuing, the
Administrative Agent may (and, if instructed by the Requisite Lenders, shall) in
its (or their) discretion at any time and from time to time elect to liquidate
any such investments and reinvestments and credit the proceeds thereof to the
Collateral Account and apply or cause to be applied such proceeds and any other
balances in the Collateral Account to the payment of any of the Letter of Credit
Liabilities due and payable.
(d) If (i) no Default or Event of Default has occurred and is continuing
and (ii) all of the Letter of Credit Liabilities have been paid in full, the
Administrative Agent shall, from time to time, at the request of the Borrower,
deliver to the Borrower, against receipt but without any recourse, warranty or
representation whatsoever, such of the balances in the Collateral Account as
exceed the aggregate amount of Letter of Credit Liabilities at such time. When
all of the Obligations shall have been paid in full and no Letters of Credit
remain outstanding, the Administrative Agent shall promptly deliver to the
Borrower, against receipt but without any recourse, warranty or representation
whatsoever, the balances remaining in the Collateral Account.
(e) The Borrower shall pay to the Administrative Agent from time to time
such fees as the Administrative Agent normally charges for similar services in
connection with the Administrative Agent's administration of the Collateral
Account and investments and reinvestments of funds therein.
Section 11.6. Performance by Administrative Agent.
If the Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Administrative Agent may perform or
attempt to perform such covenant, duty or agreement on behalf of the Borrower
after the expiration of any cure or grace periods set forth herein. In such
event, the Borrower shall, at the request of the Administrative Agent, promptly
pay any amount reasonably expended by the Administrative Agent in
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such performance or attempted performance to the Administrative Agent, together
with interest thereon at the applicable Post-Default Rate from the date of such
expenditure until paid. Notwithstanding the foregoing, neither the
Administrative Agent nor any Lender shall have any liability or responsibility
whatsoever for the performance of any obligation of the Borrower under this
Agreement or any other Loan Document.
Section 11.7. Rights Cumulative.
The rights and remedies of the Administrative Agent and the Lenders under
this Agreement and each of the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies which any of them may otherwise have under
Applicable Law. In exercising their respective rights and remedies the
Administrative Agent and the Lenders may be selective and no failure or delay by
the Administrative Agent or any of the Lenders in exercising any right shall
operate as a waiver of it, nor shall any single or partial exercise of any power
or right preclude its other or further exercise or the exercise of any other
power or right.
Section 11.8. Rescission of Acceleration by Requisite Lenders.
If at any time after acceleration of the maturity of the Obligations, the
Borrower shall pay all arrears of interest and all payments on account of
principal of the Obligations which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by
Applicable Law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Defaults (other than nonpayment of principal of
and accrued interest on the Obligations due and payable solely by virtue of
acceleration) shall be remedied or waived to the satisfaction of the Requisite
Lenders, then by written notice to the Borrower, the Requisite Lenders may
elect, in the sole discretion of such Requisite Lenders, to rescind and annul
the acceleration and its consequences; but such action shall not affect any
subsequent Default or Event of Default or impair any right or remedy consequent
thereon. The provisions of the preceding sentence are intended merely to bind
the Lenders to a decision which may be made at the election of the Requisite
Lenders; they are not intended to benefit the Borrower and do not give the
Borrower the right to require the Lenders to rescind or annul any acceleration
hereunder, even if the conditions set forth herein are satisfied.
Section 11.9. Duties in the Case of Enforcement.
In case one or more Events of Default have occurred and shall be
continuing, and whether or not acceleration of the Obligations shall have
occurred, the Administrative Agent shall, if (a) so requested by the Requisite
Lenders and (b) the Lenders have provided to the Administrative Agent such
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additional indemnities and assurances against expenses and liabilities as the
Administrative Agent may reasonably request, proceed to enforce the provisions
of this Agreement and exercise all or any such other legal and equitable and
other rights or remedies as it may have in respect of enforcement of the
Lenders' rights against the Borrower and the Guarantors under this Agreement and
the other Loan Documents. The Requisite Lenders may direct the Administrative
Agent in writing as to the method and the extent of any such enforcement, the
Lenders (including any Lender which is not one of the Requisite Lenders) hereby
agreeing to ratably and severally indemnify and hold the Administrative Agent
harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Administrative
Agent need not comply with any such direction to the extent that the
Administrative Agent reasonably believes the Administrative Agent's compliance
with such direction to be unlawful or commercially unreasonable in any
applicable jurisdiction.
Article XII. The Administrative Agent
Section 12.1. Authorization and Action.
Each Lender hereby appoints and authorizes the Administrative Agent to take
such action as agent on such Lender's behalf and to exercise such powers under
this Agreement and the other Loan Documents as are specifically delegated to the
Administrative Agent by the terms and thereof, together with such powers as are
reasonably incidental thereto. The relationship between the Administrative Agent
and the Lenders shall be that of principal and agent only and nothing herein
shall be construed to deem the Administrative Agent a trustee or fiduciary for
any Lender nor to impose on the Administrative Agent duties or obligations other
than those expressly provided for herein. Administrative Agent shall administer
the Loan in the same manner as it administers its own loans. At the request of a
Lender, the Administrative Agent will forward to such Lender copies or, where
appropriate, originals of the documents delivered to the Administrative Agent
pursuant to this Agreement or the other Loan Documents. The Administrative Agent
will also furnish to any Lender, upon the request of such Lender, a copy of any
certificate or notice furnished to the Administrative Agent by the Borrower, any
Subsidiary or any other Loan Party, pursuant to this Agreement or any other Loan
Document not already delivered to such Lender pursuant to the terms of this
Agreement or any such other Loan Document. As to any matters not expressly
provided for by the Loan Documents (including, without limitation, enforcement
or collection of any of the Obligations), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Requisite Lenders (or all
of the Lenders if explicitly required under any other provisions of this
Agreement), and such instructions
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shall be binding upon all Lenders and all holders of any of the Obligations;
provided, however, that, notwithstanding anything in this Agreement to the
contrary, the Administrative Agent shall not be required to take any action
which exposes the Administrative Agent to personal liability or which is
contrary to this Agreement or any other Loan Document or Applicable Law. Not in
limitation of the foregoing, the Administrative Agent shall not exercise any
right or remedy it or the Lenders may have under any Loan Document upon the
occurrence of a Default or an Event of Default unless the Requisite Lenders have
so directed the Administrative Agent to exercise such right or remedy.
Section 12.2. Administrative Agent's Reliance, Etc.
Notwithstanding any other provision of any Loan Document, neither the
Administrative Agent nor any of its directors, officers, agents, employees or
counsel shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement, except for its or their own
gross negligence or willful misconduct. Without limiting the generality of the
foregoing, the Administrative Agent: (a) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives written notice of the
assignment or transfer thereof signed by such payee and in form satisfactory to
the Administrative Agent; (b) may consult with legal counsel (including its own
counsel or counsel for the Borrower or any Loan Party), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (c) makes no warranty or
representation to any Lender or any other Person and shall not be responsible to
any Lender or any other Person for any statements, warranties or representations
made by any Person in or in connection with this Agreement or any other Loan
Document; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any of
this Agreement or any other Loan Document or the satisfaction of any conditions
precedent under this Agreement or any Loan Document on the part of the Borrower
or other Persons or inspect the property, books or records of the Borrower or
any other Person; (e) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other Loan Document, any other instrument or document
furnished pursuant thereto or any Collateral covered thereby or the perfection
or priority of any Lien in favor of the Administrative Agent on behalf of the
Lenders in any such Collateral; and (f) shall incur no liability under or in
respect of this Agreement or any other Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telephone
or telecopy) believed by it to be genuine and signed, sent or given by the
proper party or parties.
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Section 12.3. Notice of Defaults.
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of a Default or Event of Default unless the Administrative Agent
has received written notice from a Lender or the Borrower referring to this
Agreement, describing with reasonable specificity such Default or Event of
Default and stating that such notice is a "notice of default." If any Lender
becomes aware of any Default or Event of Default, it shall promptly send to the
Administrative Agent such a "notice of default." Further, if the Administrative
Agent receives such a "notice of default", the Administrative Agent shall give
prompt notice thereof to the Lenders.
Section 12.4. ▇▇▇▇▇ Fargo and BankBoston as Lender.
Each of ▇▇▇▇▇ Fargo and BankBoston, as a Lender, shall have the same rights
and powers under this Agreement and any other Loan Document as any other Lender
and may exercise the same as though it were not an Agent; and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated, include ▇▇▇▇▇ Fargo
and BankBoston, as applicable, in each case in its individual capacity. ▇▇▇▇▇
Fargo and BankBoston and their respective affiliates may each accept deposits
from, maintain deposits or credit balances for, invest in, lend money to, act as
trustee under indentures of, serve as financial advisor to, and generally engage
in any kind of business with the Borrower, any Subsidiary, any other Loan Party
or any other affiliate thereof as if it were any other bank and without any duty
to account therefor to the other Lenders. Further, each Agent and any affiliate
may accept fees and other consideration from the Borrower for services in
connection with this Agreement and otherwise without having to account for the
same to the other Lenders.
Section 12.5. Approvals of Lenders.
All communications from the Administrative Agent to any Lender requesting
such Lender's determination, consent, approval or disapproval (a) shall be given
in the form of a written notice to such Lender, (b) shall be accompanied by a
description of the matter or issue as to which such determination, approval,
consent or disapproval is requested, or shall advise such Lender where
information, if any, regarding such matter or issue may be inspected, or shall
otherwise describe the matter or issue to be resolved, (c) shall include, if
reasonably requested by such Lender and to the extent not previously provided to
such Lender, written materials and a summary of all oral information provided to
the Administrative Agent by the Borrower in respect of the matter or issue to be
resolved, and (d) shall include the Administrative Agent's recommended course of
action or determination in respect thereof. Each Lender shall reply promptly,
but in any event within ten (10) Business Days (or such lesser period as may be
required under the Loan Documents for the
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Administrative Agent to respond). Unless a Lender shall give written notice to
the Administrative Agent that it objects to the recommendation or determination
of the Administrative Agent (together with a written explanation of the reasons
behind such objection) within the applicable time period for reply, such Lender
shall be deemed to have conclusively approved of or consented to such
recommendation or determination.
Section 12.6. Lender Credit Decision, Etc.
Each Lender expressly acknowledges and agrees that neither any of the
Agents nor any of their respective officers, directors, employees, agents,
counsel, attorneys-in-fact or other affiliates has made any representations or
warranties as to the financial condition, operations, creditworthiness, solvency
or other information concerning the business or affairs of the Borrower, any
Subsidiary, any other Loan Party or other Person to such Lender and that no act
by such Agent hereinafter taken, including any review of the affairs of the
Borrower, shall be deemed to constitute any such representation or warranty by
such Agent to any Lender. Each Lender acknowledges that it has, independently
and without reliance upon any Agent, any other Lender or counsel to any Agent,
or any of their respective officers, directors, employees and agents, and based
on the financial statements of the Borrower, the Subsidiaries or any other
Affiliate thereof, and inquiries of such Persons, its independent due diligence
of the business and affairs of the Borrower, the Subsidiaries, the other Loan
Parties and other Persons, its review of the Loan Documents, the legal opinions
required to be delivered to it hereunder, the advice of its own counsel and such
other documents and information as it has deemed appropriate, made its own
credit and legal analysis and decision to enter into this Agreement and the
transaction contemplated hereby. Each Lender also acknowledges that it will,
independently and without reliance upon any Agent, any other Lender or counsel
to any Agent or any of their respective officers, directors, employees and
agents, and based on such review, advice, documents and information as it shall
deem appropriate at the time, continue to make its own decisions in taking or
not taking action under the Loan Documents. Except for notices, reports and
other documents and information expressly required to be furnished to the
Lenders by the Administrative Agent under this Agreement or any of the other
Loan Documents, no Agent shall have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Borrower, any
other Loan Party or any other Affiliate thereof which may come into possession
of an Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or other affiliates. Each Lender acknowledges that the
Documentation Agent's legal counsel in connection with the transactions
contemplated by this Agreement is only acting as counsel to the Documentation
Agent and is not acting as counsel to such Lender.
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Section 12.7. Indemnification of Agents.
Each Lender agrees to indemnify each Agent (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so) pro
rata in accordance with such Lender's respective Commitment Percentage, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may at any time be imposed on, incurred by, or asserted
against such Agent in any way relating to or arising out of the Loan Documents
(collectively "Indemnifiable Amounts"), any transaction contemplated hereby or
thereby or any action taken or omitted by such Agent under the Loan Documents;
provided, however, that no Lender shall be liable for any portion of such
Indemniflable Amounts to the extent resulting solely from such Agent's gross
negligence or willful misconduct or, in the case of the Administrative Agent, if
the Administrative Agent fails to follow the written direction of the Requisite
Lenders unless such failure is pursuant to the advice of counsel of which the
Lenders have received notice. Without limiting the generality of the foregoing,
each Lender agrees to reimburse the Administrative Agent and the Documentation
Agent promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees of the counsel(s) of the Administrative Agent's or
Documentation Agent's own choosing) incurred by the Administrative Agent or the
Documentation Agent in connection with the preparation, execution,
administration, or enforcement of, or legal advice with respect to the rights or
responsibilities of the parties under, the Loan Documents, any suit or action
brought by the Administrative Agent to enforce the terms of the Loan Documents
and/or collect any Obligations, any "lender liability" suit or claim brought
against the Administrative Agent and/or the Lenders, and any claim or suit
brought against the Administrative Agent and/or the Lenders arising under any
Environmental Laws, to the extent that the Administrative Agent is not
reimbursed for such expenses by the Borrower. Such out-of-pocket expenses
(including counsel fees) shall be advanced by the Lenders on the request of the
Administrative Agent notwithstanding any claim or assertion that the
Administrative Agent is not entitled to indemnification hereunder upon receipt
of an undertaking by the Administrative Agent that the Administrative Agent will
reimburse the Lenders if it is actually and finally determined by a court of
competent jurisdiction that the Administrative Agent is not so entitled to
indemnification. The agreements in this Section shall survive the payment of the
Loans and all other amounts payable hereunder or under the other Loan Documents
and the termination of this Agreement. If the Borrower shall reimburse the
Administrative Agent for any Indemnifiable Amount following payment by any
Lender to the Administrative Agent in respect of such Indemnifiable Amount
pursuant to this Section, the Administrative Agent shall share such
reimbursement on a ratable basis with each Lender making any such payment.
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Section 12.8. Successor Administrative Agent.
The Administrative Agent may resign at any time as Administrative Agent
under the Loan Documents by giving written notice thereof to the Lenders and the
Borrower. Further, the Administrative Agent hereby agrees that it shall resign
in the event that the Administrative Agent at any time ceases to hold a
Commitment in an amount at least equal to the Commitment held by ▇▇▇▇▇ Fargo. In
addition, the Documentation Agent hereby agrees that it shall resign as
Documentation Agent (without any need to appoint a successor Documentation
Agent) in the event that the Documentation Agent at any times ceases to hold a
Commitment in an amount at least equal to the Commitment held by Administrative
Agent. In the event of a material breach of its duties hereunder, the
Administrative Agent may be removed as Administrative Agent under the Loan
Documents at any time by the Requisite Lenders upon thirty (30) day's prior
notice. Upon any such resignation or removal, the Requisite Lenders shall have
the right to appoint a successor Administrative Agent which appointment shall be
subject to the approval of the Documentation Agent and, provided no Default or
Event of Default shall have occurred and be continuing, be subject to the
Borrower's approval, which approval shall not be unreasonably withheld or
delayed and shall be deemed given in the event Borrower does not respond to any
request for Borrower's approval within five (5) Business Days of any such
request (except that Borrower shall, in all events, be deemed to have approved
each Lender as a successor Administrative Agent). If no successor Administrative
Agent shall have been so appointed by the Requisite Lenders, and shall have
accepted such appointment, within thirty (30) days after the resigning
Administrative Agent's giving of notice of resignation or the Requisite Lenders'
removal of the resigning Administrative Agent, then the resigning or removed
Administrative Agent or the Documentation Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be a Lender, if any Lender
shall be willing to serve, and otherwise shall be a commercial bank having total
combined assets of at least $10,000,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the resigning
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under the Loan Documents. After any resigning
Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Article XII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under the
Loan Documents.
Section 12.9. [Intentionally omitted.]
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Section 12.10. Approvals and Other Actions by Requisite Lenders.
Each of the following shall require the approval of, or may be taken at the
request of, the Requisite Lenders:
(a) Determinations of materiality as provided in the last sentence of
definition of Material Adverse Effect;
(b) Approvals of any Rating Agency (other than S&P or ▇▇▇▇▇'▇) as provided
in the definition of Rating Agency;
(c) Approval of the terms of subordination of any Subordinated Debt as
provided in the definition of such term;
(d) [Intentionally omitted];
(e) Consenting to any amendment, supplement or other modification of any
Letter of Credit to the extent required and as contemplated by Section 2.3.(h);
(f) [Intentionally omitted];
(g) Termination of the Commitments and acceleration of the Obligations upon
the occurrence of an Event of Default as provided in Section 11.2.;
(h) Rescission of acceleration of any of the Obligations as provided in
Section 11.8.;
(i) Removing the Administrative Agent in accordance with the provisions of
Section 12.8. for good cause and approving of its replacement as provided in
Section 12.8.; and
(j) Except as specifically provided otherwise in Section 13.7., any consent
or approval regarding, any waiver of the performance or observance by the
Borrower of and the waiver of the continuance of any Default or Event of Default
in respect of, any term of this Agreement or any other Loan Document.
Article XIII. Miscellaneous
Section 13.1. Notices.
Unless otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed, telecopied or delivered as follows:
88
If to the Borrower:
MGI Properties
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Administrative Agent:
BankBoston, N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
For Credit Notices:
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
For Operating Notices:
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Documentation Agent:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: Manager, Loan Administration Department
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Lender:
KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
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To such Lender's address or telecopy number, as applicable, set forth on its
signature page hereto or in the applicable Assignment and Acceptance Agreement;
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section. All such notices and other communications shall be effective (i) if
mailed, when received; (ii) if telecopied, when transmitted; (iii) if delivered
by reputable overnight delivery company, upon receipt; or (iv) if hand
delivered, when delivered. Notwithstanding the immediately preceding sentence,
all notices or communications to the Administrative Agent or any Lender under
Article II shall be effective only when actually received. Neither the
Administrative Agent nor any Lender shall incur any liability to the Borrower
(nor shall the Administrative Agent incur any liability to the Lenders) for
acting upon any telephonic notice referred to in this Agreement which the
Administrative Agent or such Lender, as the case may be, believes in good faith
to have been given by a Person authorized to deliver such notice or for
otherwise acting in good faith under hereunder.
Section 13.2. Expenses.
The Borrower agrees (a) to pay or reimburse the Agents for all of their
reasonable out-of-pocket costs and expenses incurred in connection with the
preparation, negotiation and execution of, and any amendment, supplement or
modification to, any of the Loan Documents (including due diligence expenses and
travel expenses relating to closing), and the consummation of the transactions
contemplated thereby, including the reasonable fees and disbursements of counsel
to the Documentation Agent, (b) to pay or reimburse the Administrative Agent and
the Lenders for all their reasonable costs and expenses incurred in connection
with the enforcement or preservation of any rights under the Loan Documents,
including the reasonable fees and disbursements of their respective counsel
(including the allocated fees and expenses of in-house counsel) and any payments
in indemnification or otherwise payable by the Lenders to the Administrative
Agent pursuant to the Loan Documents, (c) to pay, indemnify and hold the
Administrative Agent and the Lenders harmless from any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
failure to pay or delay in paying, documentary, stamp, excise and other similar
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of any of the Loan Documents, or consummation of
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, any Loan Document and (d) to the extent not already covered by
any of the preceding subsections, to pay or reimburse the Administrative Agent
and the Lenders for all their reasonable costs and expenses incurred in
connection with any bankruptcy or other proceeding of the type described in
Sections l1.1.(f)
90
or 1l.l.(g), including the reasonable fees and disbursements of counsel to the
Administrative Agent and any Lender, whether such fees and expenses are incurred
prior to, during or after the commencement of such proceeding or the
confirmation or conclusion of any such proceeding.
Section 13.3. Setoff.
Subject to Section 3.3. and in addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
after the occurrence and during the continuance of an Event of Default, the
Administrative Agent and each Lender and each Participant is hereby authorized
by the Borrower, at any time or from time to time, without notice to the
Borrower or to any other Person, any such notice being hereby expressly waived,
to set-off and to appropriate and to apply any and all deposits (general or
special, including, but not limited to, indebtedness evidenced by certificates
of deposit, whether matured or unmatured) and any other indebtedness at any time
held or owing by the Administrative Agent, such Lender or any affiliate of the
Administrative Agent or such Lender, to or for the credit or the account of the
Borrower against and on account of any of the Obligations, irrespective of
whether or not any or all of the Loans and all other Obligations have declared
to be due and payable as permitted by Section 11.2., and although such
obligations shall be contingent or unmatured; provided, however, that any such
set-off shall require the consent of all Lenders.
Section 13.4. Waiver of Jury Trial; Consent to Jurisdiction.
BORROWER, DOCUMENTATION AGENT, ADMINISTRATIVE AGENT AND LENDERS HEREBY
WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THE
COMMITMENT, THE LOAN DOCUMENTS AND/OR THE TRANSACTIONS CONTEMPLATED THEREBY. AT
THE OPTION OF LENDERS, THIS AGREEMENT MAY BE ENFORCED IN ANY FEDERAL COURT
SITTING IN THE COMMONWEALTH OF MASSACHUSETTS OR MASSACHUSETTS STATE COURT; AND
BORROWER CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY
ARGUMENT THAT VENUE IN SUCH FORUM IS NOT CONVENIENT. IN THE EVENT BORROWER
COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT
THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS
AGREEMENT, LENDERS, AT THEIR OPTION, SHALL BE ENTITLED TO HAVE THE CASE
TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH
TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE
DISMISSED WITHOUT PREJUDICE.
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Section 13.5. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or otherwise transfer any of its rights
under this Agreement without the prior written consent of all Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the account
of, any of its branch offices or the office of an affiliate of such Lender
except to the extent such transfer would result in increased costs to the
Borrower.
(c) Any Lender may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in its
Commitment or the Obligations owing to such Lender; provided, however, (i) any
such participating interest must be for a constant and not a varying percentage
interest, (ii) no Lender may grant a participating interest in its Commitment,
or if the Commitments have been terminated, the aggregate outstanding principal
balance of Notes held by it, in an amount less than $10,000,000 and integral
multiples of $5,000,000 in excess thereof and (iii) after giving effect to any
such participation a Lender, the amount of its Commitment, or if the Commitments
have been terminated, the aggregate outstanding principal balance of Notes held
by it, in which it has not granted any participating interests must be at least
$10,000,000. Except as otherwise provided in Section 13.3., no Participant shall
have any rights or benefits under this Agreement or any other Loan Document. In
the event of any such grant by a Lender of a participating interest to a
Participant, such Lender shall remain responsible for the performance of its
obligations hereunder, and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement pursuant to
which any Lender may grant such a participating interest shall provide that such
Lender shall retain the sole right and responsibility to enforce the obligations
of the Borrower hereunder including, without limitation, the right to approve
any amendment, modification or waiver of any provision of this Agreement;
provided, however, such Lender may agree with the Participant that it will not,
without the consent of the Participant, agree to (i) increase, or extend the
term or extend the time or waive any requirement for the reduction or
termination of, such Lender's Commitment, (ii) extend the date fixed for the
payment of principal of or interest on the Loans or portions thereof owing to
such Lender, (iii) reduce the amount of any such payment of principal, or (iv)
reduce the rate at which interest is payable thereon. An assignment or other
transfer which is not permitted by subsection (d) or (e) below shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in
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accordance with this subsection (c). The selling Lender shall notify the
Administrative Agent and the Borrower of the sale of any participation hereunder
and the terms thereof.
(d) Any Lender may with the prior written consent of the Arrangers and, so
long as no Default or Event of Default shall have occurred and be continuing,
the Borrower (which consent in the case of the Arrangers and the Borrower shall
not be unreasonably withheld and shall be deemed granted if either of the
Arrangers fails to notify the other of its disapproval of such assignment within
fifteen (15) Business Days after request therefor, and which consent of Borrower
shall be deemed given in the event Borrower fails to respond to any request for
its consent to such assignment within five (5) Business Days) assign to one or
more Eligible Assignees (each an "Assignee") all or a portion of its Commitment
and its other rights and obligations under this Agreement and the Notes;
provided, however, (i) no such consent by the Borrower or the Arrangers shall be
required in the case of any assignment to another Lender or any affiliate of
such Lender or another Lender; (ii) any partial assignment shall be in an amount
at least equal to $10,000,000 and integral multiples in of $500,000 in excess
thereof and after giving effect to such assignment the assigning Lender retains
a Commitment, or if the Commitments have been terminated, holds Notes having an
aggregate outstanding principal balance, of at least $10,000,000 and integral
multiples of $500,000 in excess thereof; and (iii) each such assignment shall be
effected by means of an Assignment and Acceptance Agreement. Upon execution and
delivery of such instrument and payment by such Assignee to such transferor
Lender of an amount equal to the purchase price agreed between such transferor
Lender and such Assignee, such Assignee shall be deemed to be a Lender party to
this Agreement as of the effective date of the Assignment and Acceptance
Agreement and shall have all the rights and obligations of a Lender with a
Commitment as set forth in such Assignment and Acceptance Agreement, and the
transferor Lender shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection
(d), the transferor Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements so that new Notes are issued to the Assignee and such
transferor Lender, as appropriate. In connection with any such assignment, the
transferor Lender shall pay to the Administrative Agent an administrative fee
for processing such assignment in the amount of $4,000.
(e) [Intentionally omitted.]
(f) The Administrative Agent shall maintain at the Principal Office a copy
of each Assignment and Acceptance Agreement delivered to and accepted by it and
a register for the recordation of the names and addresses of the Lenders and the
Commitment of each Lender from time to time (the "Register").
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The Administrative Agent shall give each Lender and the Borrower notice of the
assignment by any Lender of its rights as contemplated by this Section. The
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register and copies of each Assignment and Acceptance Agreement
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice to the
Administrative Agent. Upon its receipt of an Assignment and Acceptance
Agreement executed by an assigning Lender, together with each Note subject to
such assignment (the "Surrendered Note"), the Administrative Agent shall, if
such Assignment and Acceptance Agreement has been completed and if the
Administrative Agent receives the processing and recording fee described in
subsection (d) above, (i) accept such Assignment and Acceptance Agreement, (ii)
record the information contained therein in the Register, and (iii) give prompt
notice thereof to the Borrower.
(g) In addition to the assignments and participations permitted under the
foregoing provisions of this Section, any Lender may assign and pledge all or
any portion of its Loans and its Notes to any Federal Reserve Bank as collateral
security pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank, and such Loans and Notes shall be fully transferable as
provided therein. No such assignment shall release the assigning Lender from its
obligations hereunder.
(h) A Lender may furnish any information concerning the Borrower, any other
Loan Party or any of their respective Subsidiaries in the possession of such
Lender from time to time to Assignees and Participants (including prospective
Assignees and Participants) subject to compliance with Section 13.9.
(i) Anything in this Section to the contrary notwithstanding, no Lender may
assign or participate any interest in any Loan held by it hereunder to the
Borrower, any other Loan Party or any of their respective Affiliates or
Subsidiaries.
(j) Each Lender agrees that, without the prior written consent of the
Borrower, the Administrative Agent and the Documentation Agent, it will not make
any assignment hereunder in any manner or under any circumstances that would
require registration or qualification of, or filings in respect of, any Loan or
Note under the Securities Act or any other securities laws United States of
America or of any other jurisdiction.
Section 13.6. [Intentionally omitted.]
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Section 13.7. Amendments; Consents.
Except as otherwise expressly provided in this Agreement, any consent or
approval required or permitted by this Agreement or in any Loan Document to be
given by the Lenders may be given, and any term of this Agreement or of any
other Loan Document may be amended, and the performance or observance by the
Borrower or any Loan Party or Subsidiary of any terms of this Agreement or such
other Loan Document or the continuance of any Default or Event of Default may be
waived (either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Requisite Lenders
(and, in the case of an amendment to any Loan Document, the written consent of
the Borrower). Notwithstanding the foregoing, no amendment, waiver or consent
shall, unless in writing, and signed by all of the Lenders (or the
Administrative Agent at the written direction of all of the Lenders), do any of
the following: (i) increase or decrease the Commitments of the Lenders or
subject the Lenders to any additional obligations; (ii) reduce the principal of,
or interest rates that have accrued or that will be charged on the outstanding
principal amount of, any Loans or other Obligations; (iii) reduce the amount of
any Fees payable hereunder; (iv) postpone any date fixed for any payment of any
principal of, interest on, or Fees with respect to, any Loans or any other
Obligations; (v) change the Commitment Percentages; (vi) amend this Section or
Sections 4.1., 4.2., 8.8., 1O.1.(a), 1O.1.(d) and 1O.1.(e) hereof, amend the
definitions of the terms used in this Agreement or the other Loan Documents
insofar as such definitions affect the aforementioned Sections or the substance
of this Section; (vii) release any Guarantor from its obligations under its
Guaranty or (viii) modify the definition of the term "Requisite Lenders" or
modify in any other manner the number or percentage of the Lenders required to
make any determinations or waive any rights hereunder or to modify any provision
hereof. Further, no amendment, waiver or consent unless in writing and signed by
the Administrative Agent, in addition to the Lenders required hereinabove to
take such action, shall affect the rights or duties of the Administrative Agent
under this Agreement or any of the other Loan Documents. No waiver shall extend
to or affect any obligation not expressly waived or impair any right consequent
thereon and any amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose set forth therein. No course of
dealing or delay or omission on the part of the Administrative Agent or any
Lender in exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. Except as otherwise explicitly provided for herein or in
any other Loan Document, no notice to or demand upon the Borrower shall entitle
the Borrower to other or further notice or demand in similar or other
circumstances.
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Section 13.8. Nonliability of Agents and Lenders.
The relationship between the Borrower, on the one hand, and the Lenders and
the Agents, on the other, shall be solely that of borrower and lender. No Agent
nor any Lender shall have any fiduciary responsibilities to the Borrower and no
provision in this Agreement or in any of the other Loan Documents, and no course
of dealing between or among any of the parties hereto, shall be deemed to create
any fiduciary duty owing by any Agent or any Lender to any Lender, the Borrower
or any Subsidiary. No Agent nor any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with any
phase of the Borrower's business or operations.
Section 13.9. Confidentiality.
Except as otherwise provided by Applicable Law, the Administrative Agent
and each Lender shall utilize all non-public information obtained pursuant to
the requirements of this Agreement which has been identified as confidential or
proprietary by the Borrower in accordance with its customary procedure for
handling confidential information of this nature and in accordance with safe and
sound banking practices but in any event may make disclosure: (a) to any of
their respective amliates (provided they shall agree to keep such information
confidential in accordance with the terms of this Section); (b) as reasonably
required by any bona fide Assignee, Participant or other transferee in
connection with the contemplated transfer of any Commitment or participations
therein as permitted hereunder (provided they shall agree to keep such
information confidential in accordance with the terms of this Section); (c) as
required by any Governmental Authority or representative thereof or pursuant to
legal process; (d) to the Administrative Agent's or such Lender's independent
auditors and other professional advisors (provided they shall be notified of the
confidential nature of the information); and (e) after the happening and during
the continuance of an Event of Default, to any other Person, in connection with
the exercise by the Administrative Agent or the Lenders of rights hereunder or
under any of the other Loan Documents.
Section 13.10. Indemnification.
(a) The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Agents, any affiliate of the Agents and each of the Lenders and
their respective directors, officers, shareholders, agents, employees and
counsel (each referred to herein as an "Indemnified Party") from and against any
and all losses, costs, claims, damages, liabilities, deficiencies, judgments or
expenses of every kind and nature (including, without limitation, amounts paid
in settlement, court costs and the fees and disbursements of counsel incurred in
connection with any litigation, investigation, claim or proceeding or any advice
rendered in connection therewith) (the foregoing items referred to herein as
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"Claims and Expenses") incurred by an Indemnified Party in connection with,
arising out of, or by reason of, any suit, cause of action, claim, arbitration,
investigation or settlement, consent decree or other proceeding (the foregoing
referred to herein as an "Indemnity Proceeding") which is in any way related
directly or indirectly to: (i) this Agreement or any other Loan Document or the
transactions contemplated thereby; (ii) the making of any Loans or issuance of
Letters of Credit hereunder; (iii) any actual or proposed use by the Borrower of
the proceeds of the Loans or Letters of Credit; (iv) the Administrative Agent's
or any Lender's entering into this Agreement; (v) the fact that the
Administrative Agent and the Lenders have established the credit facility
evidenced hereby in favor of the Borrower; (vi) the fact that the Administrative
Agent and the Lenders are creditors of the Borrower and have or are alleged to
have information regarding the financial condition, strategic plans or business
operations of the Borrower' and the Subsidiaries; (vii) the fact that the
Administrative Agent and the Lenders are material creditors of the Borrower and
are alleged to influence directly or indirectly the business decisions or
affairs of the Borrower and the Subsidiaries or their financial condition;
(viii) the exercise of any right or remedy the Administrative Agent or the
Lenders may have under this Agreement or the other Loan Documents; provided,
however, that the Borrower shall not be obligated to indemnify any Indemnified
Party for any acts or omissions of such Indemnified Party in connection with
matters described in this clause (viii) that constitute gross negligence or
willful misconduct; (ix) any violation or non-compliance by the Borrower or any
Subsidiary of any Applicable Law (including any Environmental Law) including,
but not limited to, any Indemnity Proceeding commenced by (A) the Internal
Revenue Service or state taxing authority or (B) any Governmental Authority or
other Person under any Environmental Law, including any Indemnity Proceeding
commenced by a Governmental Authority or other Person seeking remedial or other
action to cause the Borrower or its Subsidiaries (or its respective properties)
(or the Administrative Agent and/or the Lenders as successors to the Borrower)
to be in compliance with such Environmental Laws.
(b) The Borrower's indemnification obligations under this Section shall
apply to all Indemnity Proceedings arising out of, or related to, the foregoing
whether or not an Indemnified Party is a named party in such Indemnity
Proceeding. In this connection, this indemnification shall cover all costs and
expenses of any Indemnified Party in connection with any deposition of any
Indemnified Party or compliance with any subpoena (including any subpoena
requesting the production of documents). This indemnification shall, among other
things, apply to any Indemnity Proceeding commenced by other creditors of the
Borrower or any Subsidiary, any shareholder of the Borrower or any Subsidiary
(whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of the
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Borrower), any account debtor of the Borrower or any Subsidiary or by any
Governmental Authority.
(c) This indemnification shall apply to any Indemnity Proceeding arising
during the pendency of any bankruptcy proceeding filed by or against the
Borrower and/or any Subsidiary.
(d) All reasonable out-of-pocket fees and expenses of, and all amounts paid
to third-persons by, an Indemnified Party shall be advanced by the Borrower at
the request of such Indemnified Party notwithstanding any claim or assertion by
the Borrower that such Indemnified Party is not entitled to indemnification
hereunder upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrower if it is actually and finally
determined by a court of competent jurisdiction that such Indemnified Party is
not so entitled to indemnification hereunder.
(e) An Indemnified Party may conduct its own investigation and defense of,
and may formulate its own strategy with respect to, any Indemnified Proceeding
covered by this Section and, as provided above, all reasonable costs and
expenses incurred by the Indemnified Party shall be reimbursed by the Borrower.
No action taken by legal counsel chosen by an Indemnified Party in investigating
or defending against any such Indemnified Proceeding shall vitiate or in any way
impair the obligations and duties of the Borrower hereunder to indemnify and
hold harmless each such Indemnified Party; provided, however, that (i) if the
Borrower is required to indemnify an Indemnified Party pursuant hereto and (ii)
the Borrower has provided evidence reasonably satisfactory to such Indemnified
Party that the Borrower has the financial wherewithal to reimburse such
Indemnified Party for any amount paid by such Indemnified Party with respect to
such Indemnified Proceeding, such Indemnified Party shall not settle or
compromise any such Indemnified Proceeding without the prior written consent of
the Borrower (which consent shall not be unreasonably withheld or delayed).
(f) If and to the extent that the obligations of the Borrower hereunder are
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law.
(g) The Borrower's obligations hereunder shall survive any termination of
this Agreement and the other Loan Documents and the payment in full of the
Obligations, and are in addition to, and not in substitution of, any other of
their obligations set forth in this Agreement or any other Loan Document to
which it is a party.
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Section 13.11. Termination; Survival.
At such time as (a) all of the Commitments have been terminated, (b) none
of the Lenders is obligated any longer under this Agreement to make any Loans,
(c) the Administrative Agent is no longer obligated under this Agreement to
issue any Letters of Credit, (d) no Letters of Credit remain outstanding and (e)
all Obligations (other than obligations which survive as provided in the
following sentence) have been paid and satisfied in full, this Agreement shall
terminate. Notwithstanding any termination of this Agreement, or of the other
Loan Documents, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of Sections 12.7., 13.2. and 13.10.
and any other provision of this Agreement and the other Loan Documents, and the
waivers of jury trial and submission to jurisdictions contained in Section
13.4., shall continue in full force and effect and shall protect the
Administrative Agent and the Lenders against events arising after such
termination as well as before.
Section 13.12. Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 13.13. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH, AND
CONSTITUTE AN INSTRUMENT UNDER SEAL UNDER, THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN
SUCH JURISDICTION.
Section 13.14. Counterparts.
This Agreement and any amendments, waivers, consents or supplements may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument.
Section 13.15. Obligations with Respect to Loan Parties.
The obligations of the Borrower to direct or prohibit the taking of certain
actions by the other Loan Parties as specified herein shall be absolute and not
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subject to any defense the Borrower may have that the Borrower does not control
such Loan Parties.
Section 13.16. Limitation of Liability.
Neither the Administrative Agent nor any Lender, nor any affiliate,
officer, director, employee, attorney, or agent of the Administrative Agent or
any Lender shall have any liability with respect to, and the Borrower hereby
waives, releases, and agrees not to ▇▇▇ any of them upon, any claim for any
special, indirect, incidental, or consequential damages suffered or incurred by
the Borrower in connection with, arising out of, or in any way related to, this
Agreement or any of the other Loan Documents, or any of the transactions
contemplated by this Agreement or any of the other Loan Documents. The Borrower
hereby waives, releases, and agrees not to ▇▇▇ the Administrative Agent or any
Lender or any of the Administrative Agent's or any Lender's affiliates,
officers, directors, employees, attorneys, or agents for punitive damages in
respect of any claim in connection with, arising out of, or in any way related
to, this Agreement or any of the other Loan Documents, or any of the
transactions contemplated by this Agreement or financed hereby.
Borrower is a Massachusetts trust and all persons dealing with the Borrower
must look solely to the property of the Borrower or the other Loan Parties for
the enforcement of any claims against the Borrower. Neither the trustees,
officers, agents nor shareholders of the Borrower assume any personal liability
for obligations entered into on its behalf.
Section 13.17. Entire Agreement.
This Agreement, the Notes, and the other Loan Documents referred to herein
embody the final, entire agreement among the parties hereto and supersede any
and all prior commitments, agreements, representations, and understandings,
whether written or oral, relating to the subject matter hereof and may not be
contradicted or varied by evidence of prior, contemporaneous, or subsequent oral
agreements or discussions of the parties hereto.
Section 13.18. Construction.
The Administrative Agent, the Borrower and each Lender acknowledge that
each of them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement and the other Loan Documents
with its legal counsel and that this Agreement and the other Loan Documents
shall be construed as if jointly drafted by the Administrative Agent, the
Borrower and each Lender.
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Section 13.19. Time of Essence.
Time is of the essence hereof with respect to the dates, terms and
conditions of this Agreement.
Section 13.20. Notice of Claims; Claims Bar.
BORROWER HEREBY AGREES THAT IT SHALL GIVE PROMPT WRITTEN NOTICE TO THE
ADMINISTRATIVE AGENT OF ANY CLAIM OR CAUSE OF ACTION IT BELIEVES IT HAS, OR MAY
SEEK TO ASSERT OR ALLEGE AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER, WHETHER
SUCH CLAIM IS BASED IN LAW OR EQUITY, ARISING UNDER OR RELATED TO THIS AGREEMENT
OR ANY OF THE OTHER LOAN DOCUMENTS, OR TO THE LOANS, OR ANY ACT OR OMISSION TO
ACT BY THE AGENT OR ANY LENDER WITH RESPECT HERETO OR THERETO, AND THAT IF
BORROWER SHALL FAIL TO GIVE SUCH PROMPT NOTICE TO THE AGENT WITH REGARD TO ANY
SUCH CLAIM OR CAUSE OF ACTION, BORROWER SHALL BE DEEMED TO HAVE WAIVED, AND
SHALL BE FOREVER BARRED FROM BRINGING OR ASSERTING, SUCH CLAIM OR CAUSE OF
ACTION IN ANY ARBITRATION OR ANY SUIT, ACTION OR PROCEEDING IN ANY COURT OR
BEFORE ANY GOVERNMENTAL AGENCY.
[Signatures on Following Pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to
be executed under seal by their authorized officers all as of the day and year
first above written.
BORROWER:
MGI PROPERTIES
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Ex. Vice President and Treasurer
[Signatures Continued on Next Page]
102
[Signature Page to Credit Agreement dated as of
April 2, 1998]
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as Documentation Agent,
Syndication Agent, Arranger and as a
Lender
By: /s/ ▇.▇. ▇▇▇▇ III
--------------------------------
Name: ▇.▇. ▇▇▇▇ III
Title: Vice President
Initial Commitment Amount:
$27,500,000.00
Lending Office (all Types of Loans):
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: Manager, Loan Administration
Department
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
103
[Signature Page to Credit Agreement dated as of
April 2, 1998]
BANKBOSTON, N.A., as Administrative
Agent, as Co-Arranger and as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Initial Commitment Amount:
$27,500,000.00
Lending Office (all Types of Loans):
Attn: _____________________________
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
104
[Signature Page to Credit Agreement dated
April 2, 1998]
KEYBANK NATIONAL ASSOCIATION
Name: /s/ [ILLEGIBLE]
Title: Vice President
Initial Commitment Amount:
$20,000,000.00
Lending Office (all Types of Loans):
Attn: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
105