EXHIBIT 10.1
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
among
BEACON PROPERTIES, L.P.
and
BANKBOSTON, N.A.
USTRUST
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
FLEET NATIONAL BANK
THE FIRST NATIONAL BANK OF CHICAGO
COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK BRANCH>
MELLON BANK, N.A.
PNC BANK, NATIONAL ASSOCIATION
COMERICA BANK
UNION BANK OF CALIFORNIA, N.A.
AND
OTHER BANKS WHICH MAY BECOME
PARTIES TO THIS AGREEMENT
AND
BANKBOSTON, N.A.
AS AGENT
WITH
BANCBOSTON SECURITIES INC.
ACTING AS LOAN ARRANGER
DATED AS OF AUGUST 8, 1997
TABLE OF CONTENTS
Section Page
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(S)1. DEFINITIONS AND RULES OF INTERPRETATION................................... 1
(S)1.1. Definitions..................................................... 1
(S)1.2. Rules of Interpretation......................................... 27
(S)2. THE REVOLVING CREDIT FACILITY............................................. 27
(S)2.1. Commitment to Lend.............................................. 27
(S)2.2. [Intentionally Omitted]......................................... 28
(S)2.3. Reduction of Commitment......................................... 28
(S)2.4. The Revolving Credit Notes...................................... 28
(S)2.5. Interest on Revolving Credit Loans; Fees........................ 29
(S)2.6. Requests for Revolving Credit Loans............................. 30
(S)2.7. Conversion Options.............................................. 32
(S)2.8. Funds for Revolving Credit Loans................................ 33
(S)2A. LETTERS OF CREDIT......................................................... 34
(S)2A.1. Letter of Credit Commitments.................................... 34
(S)2A.2. Reimbursement Obligation of the Borrower........................ 35
(S)2A.3. Letter of Credit Payments; Funding of a4
Revolving Credit Loan........................................... 36
(S)2A.4. Obligations Absolute............................................ 36
(S)2A.5. Reliance by Issuer.............................................. 37
(S)2A.6. Letter of Credit Fee............................................ 37
(S)2A.7. Existing Letter of Credit....................................... 38
(S)2B. COMPETITIVE BID LOANS..................................................... 38
(S)2B.1. The Competitive Bid Option...................................... 38
(S)2B.2. Competitive Bid Loan Accounts:
Competitive Bid Notes........................................... 38
(S)2B.3. Competitive Bid Quote Request; Invitation for
Competitive Bid Quotes.......................................... 40
(S)2B.4. Alternative Manner of Procedure................................. 40
(S)2B.5. Submission and Contents of Competitive Bid Quotes............... 41
(S)2B.6. Notice to Borrower.............................................. 42
(S)2B.7. Acceptance and Notice by Borrower and Agent..................... 43
(S)2B.8. Allocation by Agent............................................. 43
(S)2B.9. Funding of Competitive Bid Loans................................ 44
(S)2B.10. Funding Losses.................................................. 44
Section Page
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(S)2B.11. Repayment of Competitive Bid Loans; Interest................. 45
(S)2B.12 Optional Repayment of Competitive Bid Loans.................. 45
(S)3. REPAYMENT OF THE REVOLVING CREDIT LOANS................................. 45
(S)3.1. Maturity..................................................... 45
(S)3.2. Optional Repayments of Revolving Credit Loans................ 46
(S)4. CERTAIN GENERAL PROVISIONS.............................................. 46
(S)4.1. Funds for Payments........................................... 46
(S)4.2. Computations................................................. 47
(S)4.3. Inability to Determine Eurodollar Rate....................... 47
(S)4.4. Illegality................................................... 47
(S)4.5. Additional Costs, Etc........................................ 48
(S)4.6. Capital Adequacy............................................. 49
(S)4.7. Certificate.................................................. 50
(S)4.8. Indemnity.................................................... 50
(S)4.9. Interest on Overdue Amounts.................................. 50
(S)4.10. HLT Classification........................................... 50
(S)5. GUARANTIES.............................................................. 51
(S)6. REPRESENTATIONS AND WARRANTIES.......................................... 51
(S)6.1. Authority; Etc............................................... 51
(S)6.2. Governmental Approvals....................................... 56
(S)6.3. Title to Properties; Leases.................................. 57
(S)6.4. Financial Statements......................................... 57
(S)6.5. [Intentionally Omitted]...................................... 58
(S)6.6. Franchises, Patents, Copyrights, Etc......................... 58
(S)6.7. Litigation................................................... 58
(S)6.8. No Materially Adverse Contracts, Etc......................... 59
(S)6.9. Compliance With Other Instruments, Laws, Etc................. 59
(S)6.10. Tax Status................................................... 59
(S)6.11. No Event of Default.......................................... 50
(S)6.12. Investment Company Acts...................................... 60
(S)6.13. Absence of UCC Financing Statements, Etc..................... 60
(S)6.14. Absence of Liens............................................. 60
(S)6.15. Certain Transactions......................................... 61
(S)6.16. Employee Benefit Plans; Multiemployer Plans Guaranteed
Pension Plans................................................ 61
(S)6.17. Regulations U and X.......................................... 61
(S)6.18. Environmental Compliance..................................... 61
(S)6.19. Subsidiaries................................................. 63
(ii)
Section Page
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(S)6.20. Loan Documents................................................ 63
(S)6.21. REIT Status................................................... 63
(S)6.22. Subsequent Guarantors......................................... 64
(S)7. AFFIRMATIVE COVENANTS OF THE BORROWER AND THE GUARANTOR................... 64
(S)7.1. Punctual Payment.............................................. 64
(S)7.2. Maintenance of Office......................................... 64
(S)7.3. Records and Accounts.......................................... 64
(S)7.4. Financial Statements, Certificates and Information............ 64
(S)7.5. Notices....................................................... 68
(S)7.6. Existence of Borrower and Subsidiary
Guarantors; Maintenance of Properties......................... 70
(S)7.7. Existence of BPC; Maintenance of REIT Status
of BPC; Maintenance of Properties............................. 70
(S)7.8. Insurance..................................................... 71
(S)7.9. Taxes......................................................... 71
(S)7.10. Inspection of Properties and Books............................ 72
(S)7.11. Compliance with Laws, Contracts, Licenses, and Permit......... 72
(S)7.12. Use of Proceeds............................................... 73
(S)7.13. Acquisition of Unencumbered Assets............................ 73
(S)7.14. Additional Guarantors; Solvency of Guarantors................. 73
(S)7.15. Further Assurances............................................ 73
(S)7.16. Interest Rate Protection...................................... 73
(S)7.17. Environmental Indemnification................................. 74
(S)7.18. Response Actions.............................................. 74
(S)7.19. Environmental Assessments..................................... 74
(S)7.20. Employee Benefit Plans........................................ 75
(S)7.21. [Intentionally Omitted]....................................... 76
(S)7.22. No Amendments to Certain Documents............................ 76
(S)7.23. [Intentionally Omitted]....................................... 76
(S)7.24. [Intentionally Omitted]....................................... 76
(S)7.25. Management.................................................... 76
(S)7.26. [Intentionally Omitted]....................................... 77
(S)7.27. Location and Class of Real Estate Assets...................... 77
(S)8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER AND THE GUARANTOR.............. 77
(S)8.1. Restrictions on Indebtedness.................................. 77
(S)8.2. Restrictions on Liens, Etc.................................... 79
(S)8.3. Restrictions on Investments................................... 81
(S)8.4. Merger, Consolidation and Disposition of Assets............... 82
(S)8.5. [Intentionally Omitted]....................................... 84
(iii)
Section Page
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(S)8.6. Compliance with Environmental Laws............................. 84
(S)8.7. Distributions.................................................. 84
(S)9. FINANCIAL COVENANTS OF THE BORROWER....................................... 85
(S)9.1. Consolidated Outstanding Indebtedness.......................... 85
(S)9.2. Consolidated Secured Indebtedness.............................. 85
(S)9.3. Net Worth...................................................... 85
(S)9.4. Unencumbered Assets............................................ 86
(S)9.5 Cash Flow...................................................... 86
(S)9.6 Unencumbered Asset Debt Service Coverage....................... 87
(S)9.7 Assets Under Development....................................... 87
(S)9.9 Covenant Calculations.......................................... 87
(S)10. [INTENTIONALLY OMITTED]................................................... 89
(S)11 CONDITIONS TO THE CLOSING DATE............................................ 89
(S)11.1. Loan Documents................................................. 89
(S)11.2. Certified Copies of Organization Documents..................... 89
(S)11.3. By-laws; Resolutions........................................... 89
(S)11.4. Incumbency Certificate; Authorized Signers..................... 90
(S)11.5. Title Policies................................................. 90
(S)11.6. Certificates of Insurance...................................... 90
(S)11.7. Opinion of Counsel Concerning Organization
and Loan Documents............................................. 90
(S)11.8. [Intentionally Omitted]........................................ 90
(S)11.9. Tax and Securities Law Compliance.............................. 90
(S)11.10. Guaranties..................................................... 91
(S)11.11. Interest Rate Protection....................................... 91
(S)11.12. Financial Analysis of Properties............................... 91
(S)11.13. Inspection of Unencumbered Assets.............................. 91
(S)11.14 Certifications from Government Officials;
UCC-11 Reports................................................. 91
(S)11.15 Proceedings and Documents...................................... 91
(S)11.16 Fees........................................................... 92
(S)11.17 Closing Certificate; Compliance Certificate.................... 92
(S)11.18 Capital Reserves............................................... 92
(S)11.19 Partnership Documents.......................................... 92
(S)11.20 Existing Indebtedness.......................................... 92
(S)11.21 Release Documents.............................................. 92
(S)11.22 Subsequent Guarantors.......................................... 92
(iv)
Section Page
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(S)12. CONDITIONS TO ALL BORROWINGS.............................................. 92
(S)12.1 Representations True; No Event of Default;
Compliance Certificate......................................... 92
(S)12.2 No Legal Impediment............................................ 93
(S)12.3 Governmental Regulation........................................ 93
(S)13. EVENTS OF DEFAULT; ACCELERATION; ETC...................................... 93
(S)13.1. Events of Default and Acceleration............................. 93
(S)13.2. Termination of Commitments..................................... 97
(S)13.3. Remedies....................................................... 98
(S)14. SETOFF.................................................................... 98
(S)15. THE AGENT................................................................. 99
(S)15.1. Authorization.................................................. 99
(S)15.2. Employees and Agents...........................................100
(S)15.3. No Liability...................................................100
(S)15.4. No Representations.............................................100
(S)15.5. Payments.......................................................101
(S)15.6. Holders of Revolving Credit Notes..............................102
(S)15.7. Indemnity......................................................102
(S)15.8. Agent as Bank..................................................102
(S)15.9. Notification of Defaults and Events of Default.................102
(S)15.10. Duties in the Case of Enforcement..............................102
(S)15.11. Successor Agent................................................103
(S)15.12. Notices........................................................104
(S)16. EXPENSES..................................................................104
(S)17. INDEMNIFICATION...........................................................104
(S)18. SURVIVAL OF COVENANTS, ETC................................................105
(S)19. ASSIGNMENT; PARTICIPATIONS; ETC...........................................106
(S)19.1. Conditions to Assignments by Banks.............................106
(S)19.2. Certain Representations and Warranties;
Limitations; Covenants.........................................107
(S)19.3. Register.......................................................107
(S)19.4. New Revolving Credit Notes.....................................108
(S)19.5. Participations.................................................108
(S)19.6. Pledge by Bank.................................................109
(v)
Section Page
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S)19.7. No Assignment by Borrower............................. 109
S)19.8. Disclosure............................................ 109
S)19.9. Syndication........................................... 109
(S)20. NOTICES, ETC.................................................. 109
(S)21. GOVERNING LAW; CONSENT TO JURISDICTION
AND SERVICE................................................... 110
(S)22. HEADINGS...................................................... 110
(S)23. COUNTERPARTS.................................................. 111
(S)24. ENTIRE AGREEMENT, ETC......................................... 111
(S)25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS................ 111
(S)26. CONSENTS, AMENDMENTS, WAIVERS, ETC............................ 111
(S)27. SEVERABILITY.................................................. 113
(S)28. LIMITED RECOURSE AGAINST BPC.................................. 113
(S)29. TRANSITIONAL ARRANGEMENTS..................................... 115
S)29.1 Original Credit Agreement Superseded................... 115
S)29.2 Return and Cancellation of Notes....................... 115
S)29.3 Interest and Fees Under Original Credit Agreement...... 115
(iv)
EXHIBITS
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A Form of Revolving Credit Note
B [Intentionally Omitted]
C Form of Revolving Credit Loan Request
D Form of Compliance Certificate
E Form of Closing Certificate
F Form of Assignment and Assumption Agreement
G Form of Competitive Bid Note
H Form of Competitive Bid Quote Request
I Form of Invitation for Competitive Bid Quotes
J Form of Competitive Bid Quote
K Form of Notice of Acceptance or Non-Acceptance of Competitive Bid
Quote
(vii)
Schedules to Revolving Credit Agreement
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SCHEDULE 1.2 Capitalization Rate
SCHEDULE 1.3 Banks' Commitments
SCHEDULE 1.4 Rowes Wharf Debt
SCHEDULE 1.5 Russia Wharf Debt
SCHEDULE 1.6 South Station Debt
SCHEDULE 6.1(b) Capitalization; Outstanding Securities, Etc.
SCHEDULE 6.3 Partially Owned Real Estate Holding Entities
SCHEDULE 6.7 Litigation
SCHEDULE 6.15 Certain Transactions
SCHEDULE 6.19 Subsidiaries
(viii)
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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This AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made as of the 8th
day of August, 1997, by and among (a) BEACON PROPERTIES, L.P., a Delaware
limited partnership (the "Borrower"), having its principal place of business at
▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (b) BANKBOSTON, N.A., F/K/A THE
FIRST NATIONAL BANK OF BOSTON ("BankBoston"), having its principal place of
business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, USTrust
("USTrust"), ▇▇▇▇▇ Fargo Bank, National Association ("▇▇▇▇▇"), Fleet National
Bank ("Fleet"), The First National Bank of Chicago ("First Chicago"),
Commerzbank Aktiengesellschaft, New York Branch ("Commerzbank"), Mellon Bank,
N.A. ("Mellon"), PNC Bank, National Association ("PNC"), Comerica Bank
("Comerica"), Union Bank of California, N.A. ("Union Bank") and the other
lending institutions which may become parties hereto pursuant to (S)19
(individually, a "Bank" and collectively, the "Banks"), and (c) BANKBOSTON, as
agent for itself and each other Bank.
RECITALS
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A. The Borrower is primarily engaged in the business of owning,
purchasing, developing, constructing, renovating and operating Class A office
buildings and mixed use facilities in the United States.
B. The Borrower, the Banks and the Agent (as hereinafter defined) are
parties to a Revolving Credit Agreement dated as of March 31, 1997, as amended
by Amendment No. 1 to Revolving Credit Agreement dated as of April 30, 1997 (the
"Original Credit Agreement"), pursuant to which the Banks have agreed to make
loans to the Borrower.
C. Beacon Properties Corporation, a Maryland corporation ("BPC"), is the
sole general partner of the Borrower, holds in excess of 85% of the partnership
interests in the Borrower, and is qualified to elect REIT status for income tax
purposes and has agreed to guaranty the obligations of the Borrower hereunder on
a limited recourse basis as set forth in (S)28 hereof and in the BPC Guaranty
and to make certain representations, warranties and covenants under said
Guaranty.
D. Each of 1333 H Street, L.P., a Delaware limited partnership ("1333")
and Burlington Holding, L.P., a Delaware limited partnership ("Burlington") is
an Affiliate of the Borrower and has agreed to guaranty the obligations of the
Borrower hereunder and to make certain representations, warranties and covenants
under their respective Guaranties.
E. The Borrower has requested, and the Banks and the Agent have agreed,
to amend and restate the Original Credit Agreement in its entirety as set forth
herein, with the Borrower hereby acknowledging that all Obligations outstanding
under or pursuant to the Original Credit Agreement remain outstanding hereunder
or pursuant hereto.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
(S)1. DEFINITIONS AND RULES OF INTERPRETATION.
---------------------------------------
(S)1.1. Definitions. The following terms shall have the meanings set
-----------
forth in this (S)1 or elsewhere in the provisions of this Agreement referred to
below:
1333. As defined in the recitals hereto.
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1333 Agreement of Limited Partnership. The Limited Partnership
-----------------------------------------
Agreement of 1333 dated August 12, 1996, between Beacon Property Management,
L.P., as general partner, and the Borrower, as limited partner, as the same may
be amended from time to time as permitted by (S)7.22.
1333 Guaranty. The Guaranty dated as of March 31, 1997 made by 1333 in
-------------
favor of the Agent and the Banks pursuant to which 1333 guaranties to the Agent
and the Banks the unconditional payment and performance of the Obligations,
which Guaranty is being restated and reaffirmed as of the date hereof.
Absolute Competitive Bid Loan. See (S)2B.3(a).
-----------------------------
Accountants. In each case, independent certified public accountants
-----------
reasonably acceptable to the Majority Banks. The Banks hereby acknowledge that
the Accountants may include Coopers & ▇▇▇▇▇▇▇ L.L.P. and Price Waterhouse LLP.
Affiliate. With reference to any Person, (i) any director or
---------
executive officer of that Person, (ii) any other Person controlling, controlled
by or under direct or indirect common control of that Person, (iii) any other
Person directly or indirectly holding 10% or more of any class of the capital
stock or other equity interests (including options, warrants, convertible
securities and similar rights) of that Person and (iv) any other Person 10% or
more of any class of whose capital stock or other equity interests (including
options, warrants, convertible securities and similar rights) is held directly
or indirectly by that Person.
(2)
Agent. BankBoston, N.A. acting as agent for the Banks, or any successor
-----
agent, as permitted by (S)15.
Agent's Head Office. The Agent's head office located at 100 Federal
-------------------
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as the Agent may
designate from time to time, or the office of any successor Agent permitted
under (S)15 hereof, provided such office (which need not be such successor
--------
Agent's head office) is located in Boston, Massachusetts.
Agreement. This Amended and Restated Revolving Credit Agreement,
---------
including the Schedules and Exhibits hereto, as the same may be from time to
--------- --------
time amended and in effect.
Agreement of Limited Partnership of the Borrower. The Amended and
------------------------------------------------
Restated Agreement of Limited Partnership of the Borrower, dated May 26, 1994,
among BPC and the limited partners named therein, as amended through the date
hereof and as the same may be further amended from time to time as permitted by
(S)7.22.
Annual Unfunded Capital Expenditure Reserve. The amounts determined
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by the Borrower, shown on schedules to be submitted to and approved by the Agent
in its reasonable discretion on an annual basis, to be an appropriate reserve
for repairs, replacements, Leasing Costs and other Capital Expenditures for the
Real Estate Assets (including the Unencumbered Assets). The Annual Unfunded
Capital Expenditure Reserve shall be appropriately revised at such time as any
Real Estate Asset (including the Unencumbered Assets) or interest therein is
acquired or sold by the Borrower. The Annual Unfunded Capital Expenditure
Reserve for 1997 shall be calculated at the rate of $1.50 per square foot for
each now existing or hereafter acquired Real Estate Asset.
Applicable L/C Percentage. As of any date of determination, a per
-------------------------
annum percentage equal to the Applicable Margin for Revolving Credit Eurodollar
Rate Loans then in effect.
Applicable Margin. The applicable margin over the then Base Rate or
-----------------
Eurodollar Rate, as applicable to the Revolving Credit Loan(s) in question, as
set forth below used in calculating the interest rate applicable to Revolving
Credit Loans, which shall vary from time to time in accordance with the
Borrower's long term unsecured debt ratings (or, if applicable, Borrower's
Indicative Ratings). The Applicable Margin to be used in calculating the
interest rate applicable to Base Rate or Revolving Credit Eurodollar Rate Loans
shall vary from time to time in accordance with the Borrower's then applicable
(x) ▇▇▇▇▇'▇ debt rating, (y) S&P's debt rating and (z) any Third Debt Rating, as
set forth below in this definition, and the Applicable Margin shall be adjusted
(3)
effective on the next Business Day following any change in Borrower's ▇▇▇▇▇'▇
debt rating or S&P's debt rating or Third Debt Rating, as the case may be. The
Borrower shall notify the Agent in writing promptly after becoming aware of any
change in any of its debt ratings. The Borrower shall obtain and maintain debt
ratings from both ▇▇▇▇▇'▇ and S&P; provided that if ▇▇▇▇▇'▇ and/or S&P shall
--------
discontinue the business of providing debt ratings for the REIT industry, the
Borrower shall obtain and maintain one or more Third Debt Ratings so that the
Borrower shall at all times maintain at least two debt ratings; and provided
--------
further that if Borrower fails to maintain at least two debt ratings, the
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Applicable Margin shall be based upon an S&P rating of less than BBB- in the
table below. The Borrower may, at its option, obtain and maintain three debt
ratings (of which two must be from S&P and ▇▇▇▇▇'▇ except as set forth in the
previous sentence). If at any time of determination of the Applicable Margin,
(a) the Borrower has then current debt ratings from two (2) rating agencies,
then the Applicable Margin shall be based on the lower of such ratings, or (b)
the Borrower has then current debt ratings from three (3) rating agencies, then
the Applicable Margin shall be based on the lower of the two highest ratings.
The applicable debt ratings and the Applicable Margins are set forth in the
following table:
@@
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APPLICABLE APPLICABLE
MARGIN MARGIN
FOR REVOLVING CREDIT EURODOLLAR FOR BASE RATE LOANS
S&P RATING ▇▇▇▇▇'▇ RATING THIRD RATING RATE LOANS
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A- or higher A3 or higher A-/A3 equivalent or higher .75% 0%
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BBB+ Baa1 BBB+/Baa1 equivalent .80% 0%
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BBB Baa2 BBB/Baa2 equivalent .90% 0%
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BBB- Baa3 BBB-/Baa3 equivalent 1.00% 0%
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Less than BBB- Less than Baa3 less than BBB-/Baa3 1.25% 0%
equivalent
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@@
If a rating agency downgrade or discontinuance results in an increase in
the Applicable Margin for Base Rate Loans or the Applicable Margin for Revolving
Credit Eurodollar Rate Loans and if such downgrade or discontinuance is reversed
and the affected Applicable Margin is restored within ninety (90) days
thereafter to the Applicable Margin in effect immediately prior to such
downgrade or discontinuance, then, upon notice from the Borrower of such
reversal, Borrower shall receive a credit against interest next due the Banks
equal to interest accrued from time to time during such period of
(4)
downgrade or discontinuance on the Loans at the differential between such
Applicable Margins.
Asset Value. As of any date of determination with respect to a Real Estate
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Asset, an amount equal to the Net Operating Income attributable to such Real
Estate Asset for the most recent one (1) completed fiscal quarter of the
Borrower multiplied by four (4), minus that portion of the Annual Unfunded
---------- -----
Capital Expenditure Reserve applicable to such Real Estate Asset in effect for
such quarter, with the difference being divided by the Capitalization Rate;
----------
provided that the Asset Value of any Real Estate Asset owned or ground-leased by
--------
a Partially-Owned Real Estate Holding Entity shall be limited to the Borrower's
pro rata share of the amount as determined above in this definition.
Assignment and Assumption. See (S)19.1.
-------------------------
Banks. Collectively, BankBoston, USTrust, ▇▇▇▇▇, Fleet, First Chicago,
-----
Commerzbank, Mellon, PNC, Comercia, Union Bank, any other banks which may
provide additional commitments and become parties to this Agreement, and any
other Person who becomes an assignee of any rights of a Bank pursuant to (S)19
or a Person who acquires all or substantially all of the stock or assets of a
Bank.
Base Rate. The higher of (a) the annual rate of interest announced from
---------
time to time by BankBoston at its head office in Boston, Massachusetts as its
"base rate" and (b) one half of one percent (1/2%) above the overnight federal
funds effective rate as published by the Board of Governors of the Federal
Reserve System, as in effect from time to time. Any change in the Base Rate
during an Interest Period shall result in a corresponding change on the same day
in the rate of interest accruing from and after such day on the unpaid balance
of principal of the Base Rate Loans, if any, applicable to such Interest Period,
effective on the day of such change in the Base Rate.
Base Rate Loans. Those Revolving Credit Loans bearing interest calculated
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by reference to the Base Rate.
BCN Center Plaza. BCN Center Plaza, LLC, a Delaware limited liability
----------------
company which is the general partner of Center Plaza Associates.
Beacon Group. Collectively, TBC Holdings Limited Partnership (formerly
------------
known as The Beacon Companies), a Massachusetts limited partnership, and any of
its Affiliates or related entities which were the Borrower's predecessors in
interest in the ownership of any Real Estate Asset.
Borrower. As defined in the preamble hereto.
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(5)
BPC Guaranty. The Guaranty dated as of March 31, 1997 made by BPC in favor
--- --------
of the Agent and the Banks pursuant to which BPC guarantees to the Agent and the
Banks the unconditional payment and performance of the Obligations, subject to
the limitations on liability set forth therein, which Guaranty is being restated
and reaffirmed as of the date hereof.
Budgeted Project Costs. With respect to Real Estate Assets Under
----------------------
Development, the budgeted project cost of such Real Estate Asset Under
Development shown on schedules submitted to the Agent; provided that for Real
--------
Estate Assets Under Development owned by any Partially-Owned Real Estate Holding
Entity, the Budgeted Project Cost of such Real Estate Asset Under Development
shall be the Borrower's pro-rata share of the budgeted project cost of such Real
Estate Asset Under Development (based on the greater of (x) the Borrower's
percentage equity interest in such Partially-Owned Real Estate Holding Entity or
(y) the Borrower's obligation to provide funds to such Partially-Owned Real
Estate Holding Entity).
Building. Individually and collectively, the buildings, structures and
--------
improvements now or hereafter located on the Real Estate Assets.
Burlington. As defined in the recitals hereto.
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Burlington Agreement of Limited Partnership. The Limited Partnership
-------------------------------------------
Agreement of Burlington dated as of November 13, 1996, between the Borrower, as
general partner, and BPC, as limited partner, as the same may be amended from
time to time as permitted by (S)7.22.
Burlington Guaranty. The Guaranty dated as of March 31, 1997 made by
-------------------
Burlington in favor of the Agent and the Banks, pursuant to which Burlington
guarantees to the Agent and the Banks the unconditional payment and performance
of the Obligations, subject to the limitations on the liability of BPC set forth
therein, which Guaranty is being restated and reaffirmed as of the date hereof.
Business Day. Any day on which banking institutions in Boston,
------------
Massachusetts, are open for the transaction of banking business and, in the case
of Eurodollar Rate Loans, also a day which is a Eurodollar Business Day.
Capital Expenditures. Any expenditure for any item that would be treated
--------------------
or defined as a capital expenditure under GAAP or the Code.
Capitalization Rate. The rate set forth on Schedule 1.2 hereto with
------------------- ------------
respect to each type of Real Estate Asset.
(6)
Capitalized Leases. Leases under which the Borrower or any of its
------------------
Subsidiaries or any Partially-Owned Real Estate Holding Entity is the lessee or
obligor, the discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of the lessee or obligor in
accordance with GAAP.
Center Plaza. The nine-story office and retail property located in
------------
downtown Boston, Massachusetts, commonly known as One, Two and Three Center
Plaza, and more particularly described in the Center Plaza Subordinate Mortgage.
Center Plaza Associates. Center Plaza Associates Limited Partnership, a
-----------------------
Massachusetts limited partnership, of which the Borrower is a 75% limited
partner, the CPA Trust is a 24% limited partner and BCN Center Plaza is a 1%
sole general partner.
Center Plaza Beacon Note. The Amended and Restated Beacon Note dated as of
------------------------
June 10, 1993 in the original principal amount of $7,500,000 made by Center
Plaza Associates in favor of Scollay Corp., a Massachusetts corporation, which
promissory note has been assigned by Scollay Corp. to the Borrower, which has in
turn assigned said note to CIGNA, as collateral security.
Center Plaza First Tier Notes. Collectively, the thirteen separate
-----------------------------
promissory notes evidencing indebtedness incurred by Center Plaza Associates in
connection with Center Plaza in an aggregate original principal amount equal to
$61,000,000, each dated June 10, 1993, made by Center Plaza Associates in favor
of certain lenders, which promissory notes have been assigned by such lenders to
the Borrower, which has in turn assigned said notes to CIGNA, as collateral
security.
Center Plaza Option Agreements. Collectively, (i) the Option Agreement
------------------------------
(Second Tier Notes), dated as of November 30, 1994, between the Center Plaza
Second Tier Trust and the Borrower (the "Center Plaza Option Agreement (Second
Tier Notes)"), pursuant to which the Borrower is granted an option to purchase
the Center Plaza Second Tier Note, and (ii) the Option Agreement (Limited
Partnership Interests), dated as of November 30, 1994, between the CPA Trust and
the Borrower (the "Center Plaza Option Agreement (Limited Partnership
Interest)") pursuant to which the Borrower is granted an option to purchase all
limited partnership interests of the CPA Trust in Center Plaza Associates.
Center Plaza Second Tier Note. The promissory note evidencing indebtedness
-----------------------------
on Center Plaza in the original principal amount equal to
(7)
$48,060,479.50 executed November 30, 1994 and effective as of June 10, 1993,
made by Center Plaza Associates in favor of the Center Plaza Second Tier Trust.
The Borrower has purchased an option to acquire the Center Plaza Second Tier
Note from the Center Plaza Second Tier Trust pursuant to the terms of the Center
Plaza Option Agreement (Second Tier Notes).
Center Plaza Second Tier Trust. The Note Holding Trust, a Massachusetts
------------------------------
common law grantor trust whose trustee is CP Holding Corp., a Massachusetts
corporation of which ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is the sole stockholder.
Center Plaza Subordinate Debt. That certain outstanding indebtedness of
-----------------------------
Center Plaza Associates which is evidenced by the Center Plaza Beacon Note, the
Center Plaza First Tier Notes and the Center Plaza Second Tier Note.
Center Plaza Subordinate Mortgage. The Mortgage, Security Agreement,
---------------------------------
Financing Statement and Assignment of Leases and Rents dated as of December 1,
1986, as amended by First Amendment of Mortgage, Security Agreement, Financing
Statement and Assignment of Leases and Rents dated as of March 15, 1987 and by
Mortgage Amendment, Consolidation and Extension Agreement dated June 10, 1993,
by Center Plaza Associates in favor of The Sakura Bank, Limited, New York
Branch, as agent (successor in interest to Center Plaza Finance Corporation),
originally recorded with the Suffolk Registry of Deeds in Book 13151, Page 65,
and filed with the Suffolk Registry District of the Land Court as Document No.
414822, as amended and assigned. The Center Plaza Subordinate Mortgage secures
the Center Plaza First Tier Notes and the Center Plaza Second Tier Note.
CERCLA. See (S)6.18.
------
CIGNA. Connecticut General Life Insurance Company.
-----
Closing Date. The first date on which all of the conditions set forth in
------------
(S)11 have been satisfied.
Code. The Internal Revenue Code of 1986, as amended and in effect from
----
time to time.
Competitive Bid Loan Accounts. See (S)2B.2(a).
----------- --- -------------
Competitive Bid Loans. A borrowing hereunder consisting of one or more
----------- --- -----
loans made by any of the Banks whose Competitive Bid Quote to make a Competitive
Bid Loan as part of such borrowing has been accepted by the Borrower under the
auction bidding procedure described in (S)2B hereof.
(8)
Competitive Bid Margin. See (S)2B.5(b)(iv).
----------- --- ------
Competitive Bid Notes. See (S)2B.2(b).
----------- --- -----
Competitive Bid Quote. An offer by a Bank to make a Competitive Bid Loan
----------- --- -----
in accordance with (S)2B.5 hereof.
Competitive Bid Quote Request. See (S)2B.3.
----------- --- ----- -------
Competitive Bid Rate. See (S)2B.5(b)(v).
----------- --- ----
Completed Revolving Credit Loan Request. A loan request for a Revolving
---------------------------------------
Credit Loan accompanied by all information required to be supplied under the
applicable provisions of (S)2.6.
Commitment. With respect to each Bank, the amount set forth from time to
----------
time on Schedule 1.3 hereto as the amount of such Bank's Commitment to make
-------- ---
Revolving Credit Loans to, and to participate in the issuance, extension and
renewal of Letters of Credit for the account of, the Borrower, as such
commitment may be reduced in accordance with (S)2.3.
Commitment Fee. See (S)2.5(e).
--------------
Commitment Percentage. With respect to each Bank, the percentage set forth
---------------------
on Schedule 1.3 hereto as such Bank's percentage of the Total Commitment and any
------------
changes thereto from time to time.
Consolidated or consolidated. With reference to any term defined herein,
----------------------------
shall mean that term as applied to the accounts of the Borrower and its
subsidiaries, or BPC and its subsidiaries (as the case may be), consolidated in
accordance with GAAP.
Consolidated Capitalization Value. An amount equal to Consolidated Cash
----------------------------------
Flow for the most recent one (1) completed fiscal quarter multiplied by 4, with
the product being divided by 9.5%.
----------
Consolidated Cash Flow. For any fiscal quarter, an amount equal to the sum
-----------------------
of (a) Funds From Operations for such quarter plus (b) Consolidated Total
----
Interest Expense for such quarter plus (c) corporate general and administrative
----
expenses for such quarter.
Consolidated Debt Service. For any fiscal quarter, (a) Consolidated Total
-------------------------
Interest Expense for such quarter plus (b) the aggregate amount of scheduled
----
principal payments of Indebtedness (excluding (x) optional prepayments and (y)
(9)
scheduled principal payments in respect of any Indebtedness which is not
amortized through equal periodic installments of principal and interest over the
term of such Indebtedness, including, without limitation, balloon payments at
maturity) required to be made during such quarter by the Borrower and any of its
Subsidiaries plus (c) the aggregate amount of capitalized interest required in
----
accordance with GAAP to be paid or accrued by the Borrower or its Subsidiaries
during such quarter.
Consolidated Market Value. As of any date, an amount equal to (a) the sum
-------------------------
of (i) the Consolidated Capitalization Value as of such date, plus (ii) 100% of
----
the value of Unrestricted Cash and Cash Equivalents (excluding, until forfeited
or otherwise entitled to be retained by the Borrower, the Guarantors or their
respective Subsidiaries, tenant security and other restricted deposits), plus
----
(iii) 100% of the aggregate costs incurred and paid to date by the Borrower with
respect to Real Estate Assets Under Development, provided that the aggregate of
costs incurred and paid to date by the Borrower with respect to Real Estate
Assets under Development which are less than 50% pre-leased by square footage of
rentable space shall be limited to $100,000,000 for purposes hereof ("Eligible
Real Estate Development Costs"), minus (b) the Value of Nonconforming Assets, if
-----
any.
Consolidated Net Worth. As of any date of determination, the
------------------------
Consolidated Market Value minus Consolidated Outstanding Indebtedness.
-----
Consolidated Outstanding Indebtedness. As of any date of determination,
---------------------------------------
all Indebtedness of the Borrower and its Subsidiaries as of such date determined
on a consolidated basis in accordance with GAAP.
Consolidated Outstanding Recourse Indebtedness. As of any date of
----------------------------------------------
determination, all Consolidated Outstanding Indebtedness that is Recourse to any
of the Credit Parties (including, without limitation, the outstanding amount of
the Revolving Credit Loans and the Maximum Drawing Amount).
Consolidated Secured Indebtedness. As of any date of determination, the
---------------------------------
aggregate principal amount of all Indebtedness of the Borrower and its
Subsidiaries outstanding at such date secured by a Lien on properties or other
assets of the Borrower or its Subsidiaries, without regard to recourse.
Consolidated Total Interest Expense. For any fiscal quarter of the
-----------------------------------
Borrower, the aggregate amount of interest required in accordance with GAAP to
be paid or accrued (but excluding interest reserves funded from the proceeds of
any construction loan), without double-counting, by the Borrower and its
Subsidiaries during such quarter on: (i) all Indebtedness of the Borrower and
its Subsidiaries (including the Loans and including original issue discount and
(10)
amortization of prepaid interest, if any) and (ii) all amounts available for
borrowing, or for drawing under letters of credit, if any, issued for the
account of the Borrower or its Subsidiaries, but only if such interest was or is
required to be reflected as an item of expense, including commitment fees,
agency fees, facility fees (other than the modification fee payable pursuant to
(S)2.5(d) hereof), balance deficiency fees and similar fees and expenses in
connection with the borrowing of money.
Consolidated Unencumbered Asset Cash Flow. For any fiscal quarter, Net
-------------------------------------------
Operating Income for each Unencumbered Asset for such quarter minus the Annual
-----
Unfunded Capital Expenditure Reserve for such Unencumbered Asset in effect for
such quarter.
Consolidated Unsecured Debt Service Charges. For any fiscal quarter, an
-------------------------------------------
amount determined by the Agent to be the payments which would be required during
such quarter to amortize the average amount of Consolidated Unsecured
Indebtedness outstanding during such quarter using a twenty-five (25) year
mortgage style amortization schedule, and using an annual interest rate equal to
the higher of (i) the actual annual interest rate applicable to the Revolving
Credit Loans outstanding during such fiscal quarter, and (ii) the sum of two
percent (2%) plus the imputed seven (7) year United States Treasury notes annual
----
yield as of the last day of such fiscal quarter based upon published quotes for
Treasury notes having seven (7) years to maturity.
Consolidated Unsecured Indebtedness. As of any date of determination,
-----------------------------------
the aggregate principal amount of all Unsecured Indebtedness of the Borrower and
its Subsidiaries outstanding at such date, including without limitation all the
Obligations under this Agreement as of such date, determined on a consolidated
basis in accordance with GAAP.
Conversion Request. A notice given by the Borrower to the Agent of its
------------------
election to convert or continue a Revolving Credit Loan in accordance with
(S)2.7.
CP Holding Corp. CP Holding Corp., a Massachusetts corporation which is
---------------
the trustee of the CPA Trust.
CPA Trust. The Partnership Holding Trust, a Massachusetts common law
---------
grantor trust, the stock of the trustee of which, CP Holding Corp., is owned by
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, which trust is a 24% limited partner of Center Plaza
Associates.
Credit Parties. Collectively, the Borrower, the Operating Subsidiaries,
--------------
BPC, the other Guarantors and any other wholly-owned Subsidiary for which
(11)
the Borrower or BPC has legal liability for such wholly-owned Subsidiary's
obligations and liabilities, directly or indirectly.
default. When used with reference to this Agreement or any other Loan
-------
Document, any of the events or conditions specified in (S)13.1, whether or not
any requirement for the giving of notice, the lapse of time or both, has been
satisfied.
Default. As of the relevant time of determination, an event or occurrence
-------
which:
(i) requires notice and time to cure to become an Event of
Default and as to which notice has been given to the Borrower by
the Agent; or
(ii) has occurred and will become an Event of Default
(without notice) if such event remains uncured after any grace
period specified in (S)13.1 or, in the case of matters referred
to in (S)13.1(m), in the other applicable Loan Document(s).
Disqualifying Environmental Event. Any Release or threatened Release of
---------------------------------
Hazardous Substances, any violation of Environmental Laws or any other similar
environmental event with respect to a Real Estate Asset that causes (x) such
Real Estate Asset (in the case of an office building) to no longer be a Class A
or Class B office building or such Real Estate Asset (if a Real Estate Asset
other than a Class A or Class B office building) to be no longer in the same
asset class, (y) the occupancy or rent of such Real Estate Asset to be adversely
affected, as compared to what otherwise would have been the occupancy or rent of
such Real Estate Asset in the absence of such environmental event (provided that
an environmental event that reduces a Class A to a Class B office building at
Class B occupancy and rent which are standard in the relevant market shall not
constitute a Disqualifying Environmental Event under this clause (y) or clause
(x) above) or (z) such Real Estate Asset to no longer be financeable on a non-
recourse (with customary exceptions) long-term debt basis under the then
generally accepted underwriting standards of national insurance company or
pension fund real estate institutional lenders.
Distribution. With respect to:
------------
(i) the Borrower, any distribution of cash or other
cash equivalent, directly or indirectly, to the partners of the
Borrower; or any other distribution on or in respect of any
partnership interests of the Borrower; and
(12)
(ii) BPC, the declaration or payment of any dividend
on or in respect of any shares of any class of capital stock of
BPC, other than dividends payable solely in shares of common
stock by BPC; the purchase, redemption, or other retirement of
any shares of any class of capital stock of BPC, directly or
indirectly through a Subsidiary of BPC or otherwise; the return
of capital by BPC to its shareholders as such; or any other
distribution on or in respect of any shares of any class of
capital stock of BPC.
Dollars or $. Dollars in lawful currency of the United States of America.
------- -
Drawdown Date. The date on which any Loan is made or is to be made, and
-------------
the date on which any Revolving Credit Loan is converted or continued in
accordance with (S)2.7.
Duff & ▇▇▇▇▇▇. ▇▇▇▇ & ▇▇▇▇▇▇, and its successors.
-------------
Eligible Assignee. Any of (a) a commercial bank organized under the laws
-----------------
of the United States, or any State thereof or the District of Columbia, and
having total assets in excess of $1,000,000,000; (b) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof or the District of Columbia, and having a net worth of at
least $100,000,000, calculated in accordance with GAAP; and (c) a commercial
bank organized under the laws of any other country (including the central bank
of such country) which is a member of the Organization for Economic Cooperation
and Development (the "OECD"), or a political subdivision of any such country,
and having total assets in excess of $1,000,000,000, provided that such bank is
--------
acting through a branch or agency located in the United States of America.
Eligible Real Estate Development Costs. See definition of "Consolidated
--------------------------------------
Market Value".
Employee Benefit Plan. Any employee benefit plan within the meaning of
---------------------
(S)3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
Environmental Laws. See (S)6.18(a).
------------------
ERISA. The Employee Retirement Income Security Act of 1974, as amended and
-----
in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with the
---------------
Borrower under (S)414 of the Code.
(13)
ERISA Reportable Event. A reportable event with respect to a Guaranteed
----------------------
Pension Plan within the meaning of (S)4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar Rate
-------------------------
Loan, the weighted average of the rates (expressed as a decimal) at which all of
the Banks subject thereto would be required to maintain reserves under
Regulation D of the Board of Governors of the Federal Reserve System (or any
successor or similar regulations relating to such reserve requirements) against
"Eurocurrency Liabilities" (as that term is used in Regulation D), if such
liabilities were outstanding. The Eurocurrency Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in the Eurocurrency
Reserve Rate.
Eurodollar Breakage Costs. With respect to any Eurodollar Rate Loan to be
-------------------------
prepaid or not drawn after elected, a prepayment "breakage" fee in an amount
determined by the Agent in the following manner:
(i) First, the Agent shall determine the amount by which
(a) the total amount of interest which would have otherwise
accrued hereunder on each installment of principal prepaid or not
so drawn, during the period beginning on the date of such
prepayment or failure to draw and ending on the last day of the
applicable Eurodollar Rate Loan Interest Period (the
"Reemployment Period"), exceeds (b) the total amount of interest
which would accrue, during the Reemployment Period, on any
readily marketable bond or other obligation of the United States
of America designated by the Agent in its sole discretion at or
about the time of such payment, such bond or other obligation of
the United States of America to be in an amount equal (as nearly
as may be) to the amount of principal so paid or not drawn after
elected and to have maturity at the end of the Reemployment
Period, and the interest to accrue thereon to take account of
amortization of any discount from par or accretion of premium
above par at which the same is selling at the time of
designation. Each such amount is hereinafter referred to as an
"Installment Amount".
(ii) Second, each Installment Amount shall be treated as
payable on the last day of the Eurodollar Rate
(14)
Loan Interest Period which would have been applicable had such
principal installment not been prepaid or not borrowed.
(iii) Third, the amount to be paid on each such date shall
be the present value of the Installment Amount determined by
discounting the amount thereof from the date on which such
Installment Amount is to be treated as payable, at the same yield
to maturity as that payable upon the bond or other obligation of
the United States of America designated as aforesaid by the
Agent.
Eurodollar Business Day. Any day on which commercial banks are open for
-----------------------
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Agent in its sole
discretion acting in good faith.
Eurodollar Competitive Bid Loan(s). See (S)2B.3(a).
----------------------------------
Eurodollar Rate. For any Interest Period with respect to a Eurodollar Rate
---------------
Loan, the rate per annum equal to the quotient of (a) the rate at which the
Agent is offered Dollar deposits two Eurodollar Business Days prior to the
beginning of such Interest Period in an interbank eurodollar market where the
eurodollar and foreign currency and exchange operations of the Agent are
customarily conducted for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to the amount
of the Eurodollar Rate Loan to which such Interest Period applies, divided by
(b) a number equal to 1.00 minus the Eurocurrency Reserve Rate.
-----
Eurodollar Rate Loan(s). Loans bearing interest calculated by reference to
----------------------
the Eurodollar Rate.
Event of Default. See (S)13.1.
----------------
Financial Statement Date. With respect to (i) the Borrower, December 31,
------------------------
1996, and (ii) with respect to BPC, December 31, 1996.
Fitch. Fitch Investors Service, Inc., and its successors.
-----
Fronting Bank. BankBoston.
-------------
Funds from Operations. With respect to any fiscal period of the Borrower,
---------------------
an amount, without double-counting, equal to the net income of the Borrower and
its Subsidiaries, as determined in accordance with GAAP, before deduction of
depreciation and amortization, and excluding gains (or losses) from the sale of
(15)
real property or interests therein, debt restructurings or other extraordinary
items, and after adjustments for unconsolidated partnerships, joint ventures or
other entities (such adjustments to be calculated to reflect Funds from
Operations on the same basis, to the extent that such Funds from Operations
attributable to unconsolidated partnerships, joint ventures and other entities
are not subject to the claims of any other Person); plus amortization of pre-
----
paid deferred financing costs to the extent deducted in calculating Funds from
Operations.
"funds from operations". As defined in accordance with resolutions adopted
---------------------
by the Board of Governors of the National Association of Real Estate Investment
Trusts from time to time.
GAAP. Generally accepted accounting principles, consistently applied.
----
Guaranteed Pension Plan. Any employee pension benefit plan within the
-----------------------
meaning of (S)3(2) of ERISA maintained or contributed to by the Borrower or any
Guarantor, as the case may be, or any ERISA Affiliate of any of them the
benefits of which are guaranteed on termination in full or in part by the PBGC
pursuant to Title IV of ERISA, other than a Multiemployer Plan.
Guaranties. Collectively, the BPC Guaranty, the 1333 Guaranty, the
----------
Burlington Guaranty and any other guaranty of the Obligations made by an
Affiliate of the Borrower in favor of the Agent and the Banks.
Guarantor. Collectively, BPC, 1333, Burlington and any other Affiliate of
---------
the Borrower executing a Guaranty, provided, however, when the context so
requires, Guarantor shall refer to BPC, 1333, Burlington or such Affiliate, as
appropriate. Any Guarantor that is the owner or ground lessee of an
Unencumbered Asset shall be a wholly-owned Subsidiary. Provided further,
however, from and after the release of the Guaranty of any Subsidiary Guarantor
pursuant to (S)5 below, such Subsidiary Guarantor shall no longer be considered
a "Guarantor" for purposes of this Agreement.
Hazardous Substances. See (S)6.18(b).
--------------------
Indebtedness. All obligations, contingent and otherwise, that in
------------
accordance with GAAP should be classified upon the obligor's balance sheet as
liabilities, or to which reference should be made by footnotes thereto,
including in any event and whether or not so classified: (a) all debt and
similar monetary obligations, whether direct or indirect; (b) all liabilities
secured by any mortgage, pledge, security interest, lien, charge, or other
encumbrance existing on property owned or acquired subject thereto, whether or
not the liability secured thereby shall have been assumed; and (c) all
guarantees for borrowed
(16)
money, endorsements and other contingent obligations, whether direct or
indirect, in respect of indebtedness or obligations of others, including any
obligation to supply funds (including partnership obligations and capital
requirements) to or in any manner to invest in, directly or indirectly, the
debtor, to purchase indebtedness, or to assure the owner of indebtedness against
loss, through an agreement to purchase goods, supplies, or services for the
purpose of enabling the debtor to make payment of the indebtedness held by such
owner or otherwise, and the obligations to reimburse the issuer in respect of
any letters of credit.
Indicative Rating. An unissued long-term unsecured debt rating provided to
-----------------
the Borrower in writing by Moody's, S&P or a Third Rating Agency, which rating
has not been revised or withdrawn and is no older than twelve (12) months.
Interest Payment Date. As to any Revolving Credit Loan, the last day of
---------------------
any calendar month in which such Revolving Credit Loan is outstanding.
Interest Period. With respect to each Loan, (a) initially, the period
---------------
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the following periods (as selected by the Borrower in a Completed Revolving
Credit Loan Request or in a Competitive Bid Quote Request): (i) for any Base
Rate Loan, the last day of the calendar month, (ii) for any Revolving Credit
Eurodollar Rate Loan, 1, 2, 3, 6 or 12 months (iii) for any Absolute Competitive
Bid Loan, from 14 to 180 days, and (iv) for any Eurodollar Competitive Bid Loan,
1, 2, 3 or 6 months; and (b) thereafter, with respect to Revolving Credit Loans,
each period commencing at the end of the last day of the immediately preceding
Interest Period applicable to such Revolving Credit Loan and ending on the last
day of the applicable period set forth in (a)(i) and (ii) above selected by the
Borrower in a Conversion Request; provided that all of the foregoing provisions
--------
relating to Interest Periods are subject to the following:
(A) if any Interest Period with respect to a Base Rate Loan would end
on a day that is not a Business Day, that Interest Period shall end on the
next succeeding Business Day;
(B) if any Interest Period with respect to a Eurodollar Rate Loan
would otherwise end on a day that is not a Business Day, that Interest
Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end on
the immediately preceding Business Day;
(17)
(C) if the Borrower shall fail to give notice of conversion as
provided in (S)2.7, the Borrower shall be deemed to have requested a
conversion of the affected Revolving Credit Eurodollar Rate Loan to a Base
Rate Loan on the last day of the then current Interest Period with respect
thereto;
(D) any Interest Period relating to any Eurodollar Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall, subject to subparagraph (E) below, end on
the last Business Day of a calendar month; and
(E) any Interest Period that would otherwise extend beyond the
Maturity Date shall end on the Maturity Date.
Investments. All expenditures made and all liabilities incurred
-----------
(contingently or otherwise, but without double-counting): (i) for the
acquisition of stock, partnership or other equity interests or Indebtedness of,
or for loans, advances, capital contributions or transfers of property to, any
Person; and (ii) for the acquisition of any other obligations of any Person. In
determining the aggregate amount of Investments outstanding at any particular
time: (a) there shall be included as an Investment all interest accrued with
respect to Indebtedness constituting an Investment unless and until such
interest is paid; (b) there shall be deducted in respect of each such Investment
any amount received as a return of capital (but only by repurchase, redemption,
retirement, repayment, liquidating dividend or liquidating distribution); (c)
there shall not be deducted in respect of any Investment any amounts received as
earnings on such Investment, whether as dividends, interest or otherwise, except
that accrued interest included as provided in the foregoing clause (a) may be
deducted when paid; and (d) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
Leases. Leases, licenses and agreements, whether written or oral, relating
------
to the use or occupation of space in or on the Buildings or on the Real Estate
Assets by persons other than the Borrower, its Subsidiaries or any Partially-
Owned Real Estate Holding Entity.
Leasing Costs. Collectively, leasing commissions, legal fees, design
-------------
costs, tenant improvement costs and other costs incurred by the Borrower, its
Subsidiaries or any Partially-Owned Real Estate Holding Entity in connection
with entering into Leases or amendments thereto.
Letter of Credit. See (S)2A.1.1.
----------------
(18)
Letter of Credit Application. See (S)2A.1.1.
----------------------------
Letter of Credit Fee. See (S)2A.6.
--------------------
Letter of Credit Participation. See (S)2A.1.4.
------------------------------
Lien. See (S)8.2.
----
Loan Documents. Collectively, this Agreement, the Letter of Credit
--------------
Applications, the Letters of Credit, the Revolving Credit Notes, the Competitive
Bid Notes, the Guaranties, and any and all other agreements, instruments or
documents now or hereafter evidencing or otherwise relating to the Revolving
Credit Loans, Letters of Credit or Competitive Bid Loans and executed or
delivered by or on behalf of the Borrower or its Subsidiaries or any Guarantor
or its Subsidiaries in connection therewith, or referred to herein or therein
and delivered to the Agent or the Banks by or on behalf of the Borrower, any
Guarantor or their respective Subsidiaries, and all schedules, exhibits and
annexes hereto or thereto, as the same may from time to time be amended and in
effect.
Loans. The Revolving Credit Loans and the Competitive Bid Loans.
-----
Majority Banks. As of any date, the Banks whose aggregate Commitments
--------------
constitute at least fifty-one percent (51%) of the Total Commitment, but in no
event fewer than two Banks; provided that if the Total Commitment has been
--------
terminated by the Banks and no Revolving Credit Loans or Letters of Credit are
outstanding, the Majority Banks shall be the Banks holding fifty-one percent
(51%) of the outstanding principal amount of the Competitive Bid Loans on such
date.
Maturity Date. March 31, 2000, or such earlier date on which all of the
-------------
Loans shall become due and payable pursuant to the terms thereof.
Maximum Drawing Amount. The maximum aggregate amount that the
----------------------
beneficiaries may at any time draw under outstanding Letters of Credit, as such
maximum aggregate amount may be reduced from time to time pursuant to the terms
of the Letters of Credit.
Modification Fee. See (S)2.5(d).
----------------
Moody's. ▇▇▇▇▇'▇ Investors Service, Inc., and its successors.
-------
(19)
Multiemployer Plan. Any multiemployer plan within the meaning of (S)3(37)
------------------
of ERISA maintained or contributed to by the Borrower or any Guarantor as the
case may be or any ERISA Affiliate.
Net Operating Income. With respect to any fiscal quarter, the total rental
--------------------
and other income from the operation of all Real Estate Assets of the entity in
question, less all expenses and other proper charges incurred in connection with
the operation of such Real Estate Assets during such fiscal quarter (including,
without limitation, real estate taxes, management fees, bad debt expenses and
rent under ground leases), but before payment of or provision for debt service
charges for such fiscal quarter, income taxes for such period, and depreciation,
amortization, and other non-cash expenses for such fiscal quarter, all as
determined in accordance with GAAP (except that any rent leveling adjustments
shall be excluded from rental income).
Notes. The Revolving Credit Notes and the Competitive Bid Notes.
-----
Obligations. All indebtedness, obligations and liabilities of the Borrower
-----------
and its Subsidiaries to any of the Banks and the Agent, individually or
collectively, under this Agreement or any of the other Loan Documents or in
respect of any of the Loans or the Revolving Credit Notes or Reimbursement
Obligations incurred or the Letter of Credit Applications or the Letters of
Credit or other instruments at any time evidencing any thereof, whether existing
on the date of this Agreement or arising or incurred hereafter, direct or
indirect, joint or several, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising by contract, operation
of law or otherwise.
Operating Accounts. Collectively, all deposit or other accounts of the
------------------
Borrower relating to each of the Unencumbered Assets other than segregated
accounts that the Borrower is required to maintain with third parties.
Operating Subsidiaries. Those Subsidiaries of the Borrower that, at any
----------------------
time of reference, provide management, construction, design or other services
(excluding any such Subsidiary which may provide any such services which are
only incidental to that Subsidiary's ownership of one or more Real Estate
Assets) but including, in any case, Beacon Property Management Corporation,
Beacon Design Corporation, Beacon Property Management, L.P., Beacon Design, L.P.
and Beacon Property South Station Management Company, L.P., and any successors
or assigns of their respective businesses and/or assets which are Subsidiaries
of the Borrower or the Guarantors.
Original Credit Agreement. As defined in the recitals hereto.
-------------------------
(20)
Partially-Owned Real Estate Holding Entity(ies). Any of the partnerships,
-----------------------------------------------
joint ventures and other entities owning real estate assets in which the
Borrower and/or BPC collectively, directly or indirectly through its full or
partial ownership of another entity, own less than 100% of the equity interests,
whether or not such entity is required in accordance with GAAP to be
consolidated with the Borrower for financial reporting purposes. For purposes
of the calculations to be made under (S)9 of this Agreement, the beneficial
interests of BPC in the other Guarantors, in BeaMetFed, Inc. (the entity which
owns the property at ▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇) and in
Crystal Holdings Limited Partnership (the partnership that owns the Polk
Building and the ▇▇▇▇▇▇ Building), and the interests of Rowes Wharf Holding,
L.P. in Rowes Wharf Limited Partnership, shall all be treated as if the Borrower
were the owner of such interests; provided, however, that none of the BPC-owned
-------- -------
beneficial interests shall at any time as to any such property exceed 1% of the
entire beneficial interest in such property.
Partnership Documents. Collectively, (i) the Agreement of Limited
---------------------
Partnership of the Borrower, (ii) the Borrower's Certificate of Limited
Partnership, (iii) all of the partnership or any other related agreements to
which the Borrower or any Guarantor is a party, including, without limitation,
all of the partnership or other related agreements between the Borrower and the
other partner(s) in each Partially-Owned Real Estate Holding Entity (and any
other parties thereto) relating to the Borrower's interests in such Entities,
and (iv) all other agreements, instruments or contracts which shall from time to
time be identified in writing by the Agent, the Banks and the Borrower as
"Partnership Documents" for purposes of this Agreement.
PBGC. The Pension Benefit Guaranty Corporation created by (S)4002 of ERISA
----
and any successor entity or entities having similar responsibilities.
Permits. All governmental permits, licenses, and approvals necessary or
-------
useful for the lawful operation and maintenance of the Real Estate Assets.
Permitted Liens. Liens, security interests and other encumbrances
---------------
permitted by (S)8.2.
Person. Any individual, corporation, partnership, trust, unincorporated
------
association, business, or other legal entity, and any government (or any
governmental agency or political subdivision thereof).
Protected Interest Rate Agreement. Those three certain agreements, dated
---------------------------------
as of April 24, 1995, June 29, 1995, and June 24, 1996, respectively, which
collectively evidence the interest protection arrangements required by
(S)7.16
(21)
hereof, and all extensions, renewals, modifications, amendments, substitutions
and replacements thereof.
RCRA. See (S)6.18.
----
Real Estate Assets. The fixed and tangible properties consisting of land,
------------------
buildings and/or other improvements owned or ground-leased by the Borrower, by
any Guarantor or by any other entity in which the Borrower is the holder of an
equity interest at the relevant time of reference thereto, including, without
limitation, (i) the Unencumbered Assets at such time of reference, and (ii) the
real estate assets owned or ground-leased by each of the Partially-Owned Real
Estate Holding Entities at such time of reference, but excluding all leaseholds
other than (x) the leasehold under the South Station ground lease, and (y) other
leaseholds under ground leases having an unexpired term of not less than thirty
(30) years from the date hereof (which ground lease term will include only
renewal options exercisable solely at the ground lessee's option and, if
exercisable prior to the Maturity Date, so exercised).
Real Estate Assets Under Development. Any Real Estate Assets for which the
------------------------------------
Borrower, any Guarantor, any of the Borrower's Subsidiaries or any Partially-
Owned Real Estate Holding Entity is actively pursuing construction of Buildings
or other improvements and for which construction is proceeding to completion
without undue delay from Permit denial, construction delays or otherwise, all
pursuant to such Person's ordinary course of business and not inconsistent with
(S)7.27 hereof; provided that such Real Estate Asset will no longer be
--------
considered a Real Estate Asset Under Development when it achieves and maintains
a fifty percent (50%) occupancy rate for two (2) consecutive fiscal quarters.
Notwithstanding the foregoing, tenant improvements to previously constructed
and/or leased Real Estate Assets shall not be considered Real Estate Assets
Under Development. For purposes of this definition, a tenant shall be deemed to
be in "occupancy" if such tenant or its subtenant(s) is in possession of the
leased premises and such tenant is paying stipulated rent, if any.
Record. The grid attached to any Note, or the continuation of such grid,
------
or any other similar record, including computer records, maintained by any Bank
with respect to any Loan.
Recourse. With reference to any obligation or liability, any liability or
--------
obligation that is not Without Recourse to the obligor thereunder, directly or
indirectly. For purposes hereof, a Person shall not be deemed to be
"indirectly" liable for the liabilities or obligations of an obligor solely by
reason of the fact that such Person has an ownership interest in such obligor,
provided that such Person is not otherwise legally liable, directly or
indirectly, for such obligor's liabilities or obligations (e.g., by reason of a
guaranty or contribution obligation,
(22)
by operation of law or by reason of such Person being a general partner of such
obligor).
Reimbursement Obligation. The Borrower's obligation to reimburse the Banks
------------------------
and the Agent on account of any drawing under any Letter of Credit as provided
in (S)2A.2. Notwithstanding the foregoing, unless the Borrower shall notify the
Agent of its intent to repay the Reimbursement Obligation on the date of the
related drawing under any Letter of Credit as provided in (S)2A.2, such
Reimbursement Obligation shall simultaneously with such drawing be converted to
and become a Base Rate Loan as set forth in (S)2A.3.
REIT. A "real estate investment trust", as such term is defined in Section
----
856 of the Code.
Release. See (S)6.18(c)(iii).
-------
Revolving Credit Eurodollar Rate Loan. A Revolving Credit Loan which is a
-------------------------------------
Eurodollar Rate Loan.
Revolving Credit Loan(s). Each and every revolving credit loan made or to
------------------------
be made by the Banks to the Borrower pursuant to (S)2.
Revolving Credit Notes. Collectively, the separate promissory notes of the
----------------------
Borrower in favor of each Bank in substantially the form of Exhibit A hereto, in
---------
the aggregate principal amount of $350,000,000, dated as of the date hereof or
as of such later date as any Person becomes a Bank under this Agreement, and
completed with appropriate insertions, as each of such notes may be amended
and/or restated from time to time.
Revolving Credit Note Record. A Record with respect to the Revolving
----------------------------
Credit Notes.
Rowes Wharf Debt. The indebtedness described on Schedule 1.4 hereto.
---------------- ------------
Russia Wharf Debt. The indebtedness described on Schedule 1.5 hereto.
----------------- ------------
S&P. Standard & Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc., and
---
its successors.
▇▇▇▇. See (S)6.18.
----
SEC Filings. Collectively, (a) BPC's Annual Report on Form 10-K for the
-----------
year ended December 31, 1996, filed with the Securities and Exchange Commission
(the "SEC") pursuant to the Securities and Exchange Act of 1934,
(23)
as amended (the "Exchange Act"), including all amendments thereto, (b) BPC's
Quarterly Report on Form 10-Q for the period ended March 31, 1997, filed with
the SEC pursuant to the Exchange Act, including all amendments thereto, (c) the
Borrower's Quarterly Report on Form 10-Q for the period ended March 31, 1997,
filed with the SEC pursuant to the Exchange Act, including all amendments
thereto, (d) BPC's Current Reports on Form 8-K, dated March 27, 1997 and June 4,
1997, filed with the SEC pursuant to the Exchange Act, including all amendments
thereto, (e) the Borrower's Current Report on Form 8-K dated June 4, 1997, filed
with the SEC pursuant to the Exchange Act, including all amendments thereto, (f)
the description of BPC's Common Stock contained in its Registration Statement on
Form 8-A filed with the SEC pursuant to the Exchange Act, including all
amendments and reports updating such description, (g) the description of BPC's
8.98% Series A Cumulative Redeemable Preferred Stock contained in its
Registration Statement on Form 8-A/A dated July 10, 1997, including all
amendments and reports updating such description, (h) the Borrower's
Registration Statement on Form 10 filed with the SEC pursuant to the Exchange
Act, including all amendments and reports updating the same, (i) BPC's
Prospectus Supplement dated April 10, 1997 relating to 7,000,000 Shares of
Common Stock, and (j) BPC's Prospectus Supplement dated June 10, 1997 relating
to 8,000,000 Shares of 8.98% Series A Cumulative Redeemable Preferred Stock.
South Station Debt. The indebtedness described on Schedule 1.6 hereto.
------------------
subsidiary. Any entity required to be consolidated with its direct or
----------
indirect parent in accordance with GAAP.
Subsidiary. Any corporation, association, partnership, trust, or other
----------
business entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes or controlling interests) of the outstanding voting interests or at
least a majority of the economic interests (including, in any case, the
Operating Subsidiaries and any entity required to be consolidated with its
designated parent in accordance with GAAP), provided, however, that (i) in the
-------- -------
case of the Borrower, the term Subsidiary shall always include all Operating
Subsidiaries and exclude the Partially-Owned Real Estate Holding Entities, and
(ii) in the case of BPC, the term Subsidiary shall not include the Borrower or
its Subsidiaries or the Partially-Owned Real Estate Holding Entities.
Subsidiary Guarantor. Any Guarantor other than BPC.
--------------------
Third Debt Rating. The Borrower's long term unsecured debt rating from a
-----------------
Third Rating Agency.
(24)
Third Rating Agency. Duff & ▇▇▇▇▇▇, ▇▇▇▇▇'▇ or another nationally-
-------------------
recognized rating agency (other than S&P or ▇▇▇▇▇'▇) reasonably satisfactory to
the Agent.
Title Insurance Company. Commonwealth Land Title Insurance Company or
-----------------------
other nationally-recognized title insurance company.
Title Policies. For each Unencumbered Asset, an ALTA standard form title
--------------
policy (or, if such form is not available, an equivalent form of title insurance
policy) issued by the Title Insurance Company, insuring that the Borrower holds
good and clear marketable fee simple or leasehold title to such Unencumbered
Asset, subject only to Permitted Liens.
Total Commitment. As of any date, the sum of the then-current Commitments
----------------
of the Banks, provided that the Total Commitment shall not at any time exceed
--------
the lesser of: (i) $350,000,000 or (ii) the amount that is the maximum amount
that permits compliance with the terms of (S)9.
Type. As to any Revolving Credit Loan, its nature as a Base Rate Loan or a
----
Eurodollar Rate Loan.
Unanimous Bank Approval. The written consent of each Bank that is a party
-----------------------
to this Agreement at the time of reference.
Unencumbered Asset. Any Real Estate Asset that on any date of
------------------
determination: (a) is not subject to any Liens (including any such Lien imposed
by the organizational documents of the owner of such asset, but excluding
Permitted Liens), (b) is not the subject of any matter that materially adversely
affects the value of such Real Estate Asset, (c) is not the subject of a
Disqualifying Environmental Event, (d) has been improved with a Building or
Buildings which (1) have been issued a certificate of occupancy (where
available) or is otherwise lawfully occupied for its intended use, (2) are fully
operational, and (3) have an aggregate average occupancy of all Building(s) in
such Real Estate Asset of not less than 50% for the fiscal quarter most recently
ended, provided that at any date of determination all Real Estate Assets that
are Unencumbered Assets shall have an aggregate average occupancy of not less
than 80% for the fiscal quarter most recently ended, (e) is wholly owned or
ground-leased by the Borrower or a Guarantor and (f) has not been designated by
the Borrower in writing to the Agent as a Real Estate Asset that is not an
Unencumbered Asset, which designation shall not be permitted during the
continuance of a Default or an Event of Default and shall be accompanied by a
compliance certificate in the form of Exhibit D attached hereto. For purposes
---------
of this definition, a tenant shall be deemed to be in "occupancy" if such tenant
or its subtenant(s) is in possession of the leased premises and such tenant is
(25)
paying stipulated rent, if any; provided that up to 10% of the actual occupancy
--------
may be comprised of tenants which are not (and do not have subtenants which are)
in possession of the leased premises but continue to pay stipulated rent, if
any.
Uniform Customs. With respect to any Letter of Credit, the Uniform Customs
---------------
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, or any successor version thereof adopted by the
Agent in the ordinary course of its business as a letter of credit issuer and in
effect at the time of issuance of such Letter of Credit.
Unrestricted Cash and Cash Equivalents. As of any date of determination,
--------------------------------------
the sum of (a) the aggregate amount of unrestricted cash then held by the
Borrower or any of its Subsidiaries and (b) the aggregate amount of unrestricted
cash equivalents (valued at fair market value) then held by the Borrower or any
of its Subsidiaries. As used in this definition, (i) "unrestricted" means the
specified asset is not subject to any Liens in favor of any Person and (ii)
"cash equivalents" means that such asset has a liquid, par value in cash and is
convertible to cash on demand. Notwithstanding anything contained herein to the
contrary, the term Unrestricted Cash and Cash Equivalents shall not include the
Commitments of the Banks to make Loans under this Agreement.
Unsecured Indebtedness. All Indebtedness of any Person that is not
----------------------
secured by a Lien on any asset of such Person.
Value of Nonconforming Assets. See (S)7.27.
-----------------------------
wholly-owned Subsidiary. Any Subsidiary of which the Borrower and/or BPC
-----------------------
shall at any time own directly or indirectly through a Subsidiary or
Subsidiaries at least a majority (by number of votes or controlling interests)
of the outstanding voting interests and one hundred percent (100%) of the
economic interests, of which at least ninety-nine percent (99%) of the economic
interests shall be owned by the Borrower.
"Without Recourse" or "without recourse". With reference to any obligation
---------------- ----------------
or liability, any obligation or liability for which the obligor thereunder is
not liable or obligated other than as to its interest in a designated Real
Estate Asset or other specifically identified asset only, subject to such
limited exceptions to the non-recourse nature of such obligation or liability,
such as fraud, misappropriation, misapplication and environmental indemnities,
as are usual and customary in like transactions involving institutional lenders
at the time of the incurrence of such obligation or liability.
(26)
(S)1.2. Rules of Interpretation.
-----------------------
(i) A reference to any document or agreement shall
include such document or agreement as amended, modified or
supplemented from time to time in accordance with its terms or
the terms of this Agreement.
(ii) The singular includes the plural and the plural
includes the singular.
(iii) A reference to any law includes any amendment or
modification to such law.
(iv) A reference to any Person includes its permitted
successors and permitted assigns.
(v) Accounting terms not otherwise defined herein have
the meanings assigned to them by generally accepted accounting
principles applied on a consistent basis by the accounting entity
to which they refer.
(vi) The words "include", "includes" and "including"
are not limiting.
(vii) All terms not specifically defined herein or by
generally accepted accounting principles, which terms are defined
in the Uniform Commercial Code as in effect in Massachusetts,
have the meanings assigned to them therein.
(viii) Reference to a particular "(S)" refers to that
section of this Agreement unless otherwise indicated.
(ix) The words "herein", "hereof", "hereunder" and
words of like import shall refer to this Agreement as a whole and
not to any particular section or subdivision of this Agreement.
(S)2. THE REVOLVING CREDIT FACILITY.
-----------------------------
(S)2.1. Commitment to Lend. Subject to the provisions of (S)2.6 and the
------------------
other terms and conditions set forth in this Agreement, each of the Banks
severally agrees to lend to the Borrower and the Borrower may borrow, repay, and
reborrow from each Bank from time to time between the Closing Date and the
Maturity Date upon notice by the Borrower to the Agent (with copies for
(27)
each Bank) given in accordance with (S)2.6 hereof, such sums as are requested by
the Borrower up to a maximum aggregate principal amount outstanding (after
giving effect to all amounts requested) at any one time equal to such Bank's
Commitment minus such Bank's Commitment Percentage of the Maximum Drawing
-----
Amount; provided that the sum of the outstanding amount of the Revolving Credit
--------
Loans (after giving effect to all amounts requested) and the Competitive Bid
Loans plus the Maximum Drawing Amount shall not at any time exceed the Total
----
Commitment in effect at such time.
The Revolving Credit Loans shall be made pro rata in accordance with each
--- ----
Bank's Commitment Percentage. Each request for a Revolving Credit Loan made
pursuant to (S)2.6 hereof shall constitute a representation and warranty by the
Borrower that the conditions set forth in (S)11 have been satisfied as of the
Closing Date (to the extent such conditions have not been waived in writing by
the Banks and/or deferred in writing to be a condition to the initial advance)
and that the conditions set forth in (S)12 have been satisfied on the date of
such request and will be satisfied on the proposed Drawdown Date of the
requested Revolving Credit Loan, provided that the making of such representation
--------
and warranty by the Borrower shall not limit the right of any Bank not to lend
if such conditions have not been met. No Revolving Credit Loan shall be
required to be made by any Bank unless all of the conditions contained in (S)11
have been satisfied as of the Closing Date (to the extent such conditions have
not been waived in writing by the Banks and/or deferred in writing to be a
condition to the initial advance) and that the conditions set forth in (S)12
have been met at the time of any request for a Revolving Credit Loan.
(S)2.2. [Intentionally Omitted.]
----------------------
(S)2.3. Reduction of Commitment. The Borrower shall have the right at any
-----------------------
time and from time to time upon five (5) Business Days' prior written notice to
the Agent (with copies for each Bank) to reduce by $500,000 or an integral
multiple of $100,000 in excess thereof or terminate entirely the unborrowed
portion of the then Total Commitment, whereupon the Commitments of the Banks
shall be reduced pro rata in accordance with their respective Commitment
--- ----
Percentages by the amount specified in such notice or, as the case may be,
terminated. Upon the effective date of any such reduction or termination, the
Borrower shall pay to the Agent for the respective accounts of the Banks the
full amount of the Commitment Fee then accrued and unpaid on the amount of the
reduction. No reduction or termination of the Commitments may be reinstated.
(S)2.4. The Revolving Credit Notes. The Revolving Credit Loans shall be
--------------------------
evidenced by the Revolving Credit Notes. A Revolving Credit Note shall be
payable to the order of each Bank in an aggregate principal amount equal to
(28)
such Bank's Commitment. The Borrower irrevocably authorizes each Bank to make
or cause to be made, at or about the time of the Drawdown Date of any Revolving
Credit Loan or at the time of receipt of any payment of principal on such Bank's
Revolving Credit Notes, an appropriate notation on such Bank's Revolving Credit
Note Record reflecting the making of such Revolving Credit Loan or (as the case
may be) the receipt of such payment. The outstanding amount of the Revolving
Credit Loans set forth on such Bank's Revolving Credit Note Record shall be
prima facie evidence of the principal amount thereof owing and unpaid to such
----- -----
Bank, but the failure to record, or any error in so recording, any such amount
on such Bank's Revolving Credit Note Record shall not limit or otherwise affect
the obligations of the Borrower hereunder or under any Revolving Credit Note to
make payments of principal of or interest on any Revolving Credit Note when due.
(S)2.5. Interest on Revolving Credit Loans; Fees.
----------------------------------------
(a) Interest on Base Rate Loans. Each Base Rate Loan shall bear
---------------------------
interest for the period commencing with the Drawdown Date thereof and ending on
the last day of the Interest Period with respect thereto (unless earlier paid in
accordance with (S)3.2) at a rate equal to the Base Rate plus the Applicable
----
Margin for Base Rate Loans.
(b) Interest on Revolving Credit Eurodollar Rate Loans. Each
--------------------------------------------------
Revolving Credit Eurodollar Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto (unless earlier paid in accordance with
(S)3.2) at a rate equal to the Eurodollar Rate determined for such Interest
Period plus the Applicable Margin for Revolving Credit Eurodollar Rate Loans.
----
(c) Interest Payments. The Borrower unconditionally promises to
-----------------
pay interest on each Revolving Credit Loan in arrears on each Interest Payment
Date with respect thereto.
(d) Modification Fee. The Borrower agrees to pay to the Agent,
----------------
for the accounts of the Banks, a one-time loan modification fee as set forth in
that certain letter agreement of even date herewith between the Borrower and the
Agent.
(e) Commitment Fee. The Borrower agrees to pay to the Agent,
--------------
for the accounts of the Banks in accordance with their respective Commitment
Percentages, a commitment fee calculated at the rate of 0.15% per annum on the
Total Commitment during each calendar quarter or portion thereof from the date
hereof to the Maturity Date (the "Commitment Fee"). The Commitment Fee shall be
payable quarterly in arrears on the first day of each calendar
(29)
quarter for the immediately preceding calendar quarter commencing on the first
such date following the Closing Date, with a final payment on the Maturity Date
or any earlier date on which the Commitments shall terminate.
(f) Agent's Fee. The Borrower shall pay to the Agent an Agent's
-----------
fee as set forth in that certain letter agreement of even date herewith between
the Borrower and the Agent.
(S)2.6. Requests for Revolving Credit Loans.
-----------------------------------
The following provisions shall apply to each request by the Borrower for a
Revolving Credit Loan:
(i) The Borrower shall submit a Completed Revolving Credit
Loan Request to the Agent, together with a duplicate copy of such Completed
Revolving Credit Loan Request for each Bank which is then a party to this
Agreement at the time such loan request is made. Such Completed Revolving
Credit Loan Requests shall be delivered in separate envelopes to the Agent
and be addressed to the Agent and each Bank, respectively, and each such
envelope shall be conspicuously marked with the following legend: "LOAN
REQUEST -- TIME SENSITIVE -- MUST RESPOND WITHIN [ ] DAYS" and with the
appropriate period filled in. Except as otherwise provided herein, each
Completed Revolving Credit Loan Request shall be in a minimum amount of
$500,000 or an integral multiple thereof. Each Completed Revolving Credit
Loan Request shall be irrevocable and binding on the Borrower and shall
obligate the Borrower to accept the Revolving Credit Loans requested from
the Banks on the proposed Drawdown Date, unless such Completed Revolving
Credit Loan Request is withdrawn (x) in the case of a request for a
Revolving Credit Eurodollar Rate Loan, at least three (3) Business Days
prior to the proposed Drawdown Date for such Revolving Credit Loan, and (y)
in the case of a request for a Base Rate Loan, at least two (2) Business
Days prior to the proposed Drawdown Date for such Revolving Credit Loan.
(ii) Each Completed Revolving Credit Loan Request may be
delivered by the Borrower to the Agent by 10:00 a.m. on any Business Day,
and at least two (2) Business Days prior to the proposed Drawdown Date of
any Base Rate Loan, and at least three (3) Business Days prior to the
proposed Drawdown Date of any Revolving Credit Eurodollar Rate Loan.
(iii) Each Completed Revolving Credit Loan Request shall include
a completed writing in the form of Exhibit C hereto specifying: (1) the
---------
principal amount of the Revolving Credit Loan requested, (2) the proposed
(30)
Drawdown Date of such Revolving Credit Loan, (3) the Interest Period
applicable to such Revolving Credit Loan, and (4) the Type of such
Revolving Credit Loan being requested.
(iv) No Bank shall be obligated to fund any Revolving Credit
Loan unless:
(a) a Completed Revolving Credit Loan Request has been
timely received by the Agent as provided in subsection (i) above; and
(b) both before and after giving effect to the
Revolving Credit Loan to be made pursuant to the Completed Revolving
Credit Loan Request, all of the conditions contained in (S)11 shall
have been satisfied as of the Closing Date (to the extent such
conditions have not been waived in writing by the Banks and/or
deferred in writing to be a condition to the initial advance) and all
of the conditions set forth in (S)12 shall have been met, including,
without limitation, the condition under (S)12.1 that there be no
Default or Event of Default under this Agreement; and
(c) the Agent shall have received (with copies for
each Bank) a certificate in the form of Exhibit D hereto signed by the
---------
chief financial officer or treasurer of the Borrower setting forth
computations evidencing compliance with the covenants contained in
(S)9 on a pro forma basis after giving effect to such requested
--- -----
Revolving Credit Loan, and, for purposes of calculating pro forma
--- -----
compliance under (S)9.6, Consolidated Unsecured Debt Service Charges
shall be calculated, for the quarter in which the loan request is
made, using the higher of (x) the actual annual interest rate
applicable to the Revolving Credit Loans on the date that such
certificate is submitted, and (y) the sum of two percent (2%) plus the
----
imputed seven (7) year United States Treasury notes yield on such date
based upon published quotes for Treasury notes having seven (7) years
to maturity (and attaching a copy of the pro forma analysis used in
--- -----
determining such compliance), and certifying that, both before and
after giving effect to such requested Revolving Credit Loan, no
Default or Event of Default exists or will exist under this Agreement
or any other Loan Document, and that after taking into account such
requested Revolving Credit Loan, no default will exist as of the
Drawdown Date or thereafter.
(v) The Agent will use best efforts to cause the Completed Revolving
Credit Loan Request to be delivered to each Bank on the same
(31)
day or the Business Day following the day a Completed Revolving Credit Loan
Request is received by the Agent.
(S)2.7. Conversion Options.
------------------
(a) The Borrower may elect from time to time to convert any
outstanding Revolving Credit Loan to a Revolving Credit Loan of another Type,
provided that (i) with respect to any such conversion of a Revolving Credit
--------
Eurodollar Rate Loan to a Base Rate Loan, such conversion shall take place
automatically at the end of the applicable Interest Period unless the Borrower
provides notice to the Agent of its request to continue such Loan as a Revolving
Credit Eurodollar Rate Loan as provided in (S)2.7(b) and (S)2.7(a)(ii); (ii)
subject to the further proviso at the end of this (S)2.7(a) and subject to
(S)2.7(b) and 2.7(d), with respect to any conversion of a Base Rate Loan to a
Revolving Credit Eurodollar Rate Loan (or a continuation of a Revolving Credit
Eurodollar Rate Loan, as provided in (S)2.7(b)), the Borrower shall give the
Agent (with copies for each Bank) at least three (3) Eurodollar Business Days'
prior written notice of such election, which notice must be received by the
Agent by 10:00 a.m. on any Business Day; and (iii) no Revolving Credit Loan may
be converted into a Revolving Credit Eurodollar Rate Loan when any Default or
Event of Default has occurred and is continuing. All or any part of outstanding
Revolving Credit Loans of any Type may be converted as provided herein, provided
--------
that each Conversion Request relating to the conversion of a Base Rate Loan to a
Revolving Credit Eurodollar Rate Loan shall be for an amount equal to $500,000
or an integral multiple of $100,000 in excess thereof and shall be irrevocable
by the Borrower.
(b) Any Revolving Credit Loan of any Type may be continued as
such upon the expiration of the Interest Period with respect thereto (i) in the
case of Base Rate Loans, automatically and (ii) in the case of Revolving Credit
Eurodollar Rate Loans by compliance by the Borrower with the notice provisions
contained in (S)2.7(a)(ii); provided that no Revolving Credit Eurodollar Rate
--------
Loan may be continued as such when any Default or Event of Default has occurred
and is continuing but shall be automatically converted to a Base Rate Loan on
the last day of the first Interest Period relating thereto ending during the
continuance of any Default or Event of Default. The Agent shall notify the
Banks promptly when any such automatic conversion contemplated by this (S)2.7(b)
is scheduled to occur.
(c) In the event that the Borrower does not notify the Agent of
its election hereunder with respect to any Revolving Credit Loan, such Revolving
Credit Loan shall be automatically converted to a Base Rate Loan at the end of
the applicable Interest Period.
(32)
(d) The Borrower may not request or elect a Revolving Credit
Eurodollar Rate Loan pursuant to (S)2.6, elect to convert a Base Rate Loan to a
Revolving Credit Eurodollar Loan pursuant to (S)2.7(a) or elect to continue a
Revolving Credit Eurodollar Rate Loan pursuant to (S)2.7(b) if, after giving
effect thereto, there would be greater than five (5) Revolving Credit Eurodollar
Rate Loans then outstanding. Any Completed Revolving Credit Loan Request for a
Revolving Credit Eurodollar Rate Loan that would create greater than five (5)
Revolving Credit Eurodollar Rate Loans outstanding shall be deemed to be a
Completed Revolving Credit Loan Request for a Base Rate Loan.
(S)2.8. Funds for Revolving Credit Loans.
--------------------------------
(a) Subject to the other provisions of this (S)2, not later than
11:00 a.m. (Boston time) on the proposed Drawdown Date of any Revolving Credit
Loan, each of the Banks will make available to the Agent, at its Head Office, in
immediately available funds, the amount of such Bank's Commitment Percentage of
the amount of the requested Revolving Credit Loan. Upon receipt from each Bank
of such amount, the Agent will make available to the Borrower the aggregate
amount of such Revolving Credit Loan made available to the Agent by the Banks;
all such funds received by the Agent by 11:00 a.m. (Boston Time) on any Business
Day will be made available to the Borrower not later than 2:00 p.m. on the same
Business Day. Funds received after such time will be made available by not later
than 11:00 a.m. on the next Business Day. The failure or refusal of any Bank to
make available to the Agent at the aforesaid time and place on any Drawdown Date
the amount of its Commitment Percentage of the requested Revolving Credit Loan
shall not relieve any other Bank from its several obligation hereunder to make
available to the Agent the amount of its Commitment Percentage of any requested
Revolving Credit Loan but in no event shall the Agent (in its capacity as Agent)
have any obligation to make any funding or shall any Bank be obligated to fund
more than its Commitment Percentage of the requested Revolving Credit Loan or to
increase its Commitment Percentage on account of such failure or otherwise.
(b) The Agent may, unless notified to the contrary by any Bank
prior to a Drawdown Date, assume that such Bank has made available to the Agent
on such Drawdown Date the amount of such Bank's Commitment Percentage of the
Revolving Credit Loan to be made on such Drawdown Date, and the Agent may (but
it shall not be required to), in reliance upon such assumption, make available
to the Borrower a corresponding amount. If any Bank makes available to the Agent
such amount on a date after such Drawdown Date, such Bank shall pay to the Agent
on demand an amount equal to the product of (i) the average, computed for the
period referred to in clause (iii) below, of the weighted average interest rate
paid by the Agent for federal funds acquired by the Agent during each day
included in such period, multiplied by (ii)
---------- --
(33)
the amount of such Bank's Commitment Percentage of such Revolving Credit
Loan, multiplied by (iii) a fraction, the numerator of which is the number of
---------- --
days that elapsed from and including such Drawdown Date to the date on which the
amount of such Bank's Commitment Percentage of such Revolving Credit Loan shall
become immediately available to the Agent, and the denominator of which is 365.
A statement of the Agent submitted to such Bank with respect to any amounts
owing under this paragraph shall be prima facie evidence of the amount due and
----- -----
owing to the Agent by such Bank.
(S)2A. LETTERS OF CREDIT.
------- -- ------
(S)2A.1. Letter of Credit Commitments.
------ -- ------ -----------
(S)2A.1.1. Commitment to Issue Letters of Credit. Subject to the
-------------------------------------
terms and conditions hereof and the execution and delivery by the Borrower of a
letter of credit application on the Fronting Bank's customary form as part of a
Completed Revolving Credit Loan Request (a "Letter of Credit Application")
deleting, however, the terms and conditions customarily attached thereto, the
Fronting Bank on behalf of the Banks and in reliance upon the agreement of the
Banks set forth in (S)2A.1.4 and upon the representations and warranties of the
Borrower contained herein, agrees, in its individual capacity, to issue, extend
and renew for the account of the Borrower one or more letters of credit
(individually, a "Letter of Credit"), in such form as may be requested from time
to time by the Borrower and reasonably agreed to by the Fronting Bank; provided,
--------
however, that, after giving effect to such Completed Revolving Credit Loan
-------
Request, (a) the Maximum Drawing Amount shall not exceed $50,000,000 at any one
time, (b) the sum of (i) the Maximum Drawing Amount on all Letters of Credit and
(ii) the amount of all Revolving Credit Loans and Competitive Bid Loans
outstanding shall not exceed the Total Commitment in effect at such time, and
(c) the total number of Letters of Credit outstanding shall not exceed five (5).
(S)2A.1.2. Letter of Credit Applications. Each Letter of Credit
-----------------------------
Application shall be completed to the reasonable satisfaction of the Agent and
the Fronting Bank. In the event that any provision of any Letter of Credit
Application shall be inconsistent with any provision of this Agreement
(including provisions applicable to a Completed Revolving Credit Loan Request),
then the provisions of this Agreement shall, to the extent of any such
inconsistency, govern.
(S)2A.1.3. Terms of Letters of Credit. Each Letter of Credit issued,
--------------------------
extended or renewed hereunder shall, among other things, (i) provide for the
payment of sight drafts for honor thereunder when presented in accordance with
the terms thereof and when accompanied by the documents described therein,
(34)
and (ii) have an expiry date no later than the date which is fourteen (14) days
prior to the Maturity Date. Each Letter of Credit so issued, extended or renewed
shall be subject to the Uniform Customs.
(S)2A.1.4. Reimbursement Obligations of Banks. Each Bank severally
----------------------------------
agrees that it shall be absolutely liable, without regard to the occurrence of
any Default or Event of Default or any other condition precedent whatsoever, to
the extent of such Bank's Commitment Percentage, to reimburse the Fronting Bank
on demand pursuant to (S)2A.3 for the amount of each draft paid by the Fronting
Bank under each Letter of Credit to the extent that such amount is not
reimbursed by the Borrower pursuant to (S)2A.2 (such agreement for a Bank being
called herein the "Letter of Credit Participation" of such Bank).
(S)2A.2. Reimbursement Obligation of the Borrower. In order to induce the
----------------------------------------
Fronting Bank to issue, extend and renew each Letter of Credit and the Banks to
participate therein, the Borrower hereby agrees, except as contemplated in
(S)2A.3 below, to reimburse or pay to the Fronting Bank, for the account of the
Fronting Bank or (as the case may be) the Banks, with respect to each Letter of
Credit issued, extended or renewed by the Fronting Bank hereunder,
(a) except as otherwise expressly provided in (S)2A.2(b) and (c) or
(S)2A.3, on each date that any draft presented under such Letter of Credit is
honored by the Fronting Bank, or the Fronting Bank otherwise makes a payment
with respect thereto, (i) the amount paid by the Fronting Bank under or with
respect to such Letter of Credit, and (ii) any amounts payable pursuant to
(S)4.5 hereof under, or with respect to, such Letter of Credit,
(b) upon the reduction (but not termination) of the Total Commitment
to an amount less than the then Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Agent in an interest-bearing
account (with interest to be added to such account) as cash collateral for the
benefit of the Banks and the Agent for all Reimbursement Obligations, and
(c) upon the termination of the Total Commitment, or the acceleration
of the Reimbursement Obligations with respect to all Letters of Credit in
accordance with (S)13, an amount equal to the then Maximum Drawing Amount on all
Letters of Credit, which amount shall be held by the Agent in an interest-
bearing account (with interest to be added to such account) as cash collateral
for the benefit of the Banks and the Agent for all Reimbursement Obligations.
Each such payment shall be made to the Agent for the benefit of the Banks
at the Agent's Head Office in immediately available funds. Interest on
(35)
any and all amounts not converted to a Revolving Credit Loan pursuant to (S)2A.3
and remaining unpaid by the Borrower under this (S)2A.2 at any time from the
date such amounts become due and payable (whether as stated in this (S)2A.2, by
acceleration or otherwise) until payment in full (whether before or after
judgment) shall be payable to the Agent for the benefit of the Banks on demand
at the rate specified in (S)4.9 for overdue principal on the Loans.
(S)2A.3. Letter of Credit Payments; Funding of a Revolving Credit Loan.
-------------------------------------------------------------
If any draft shall be presented or other demand for payment shall be made under
any Letter of Credit, the Fronting Bank shall notify the Borrower and the Banks,
on or before the date the Fronting Bank intends to honor such drawing, of the
date and amount of the draft presented or demand for payment and of the date and
time when it expects to pay such draft or honor such demand for payment, and,
except as provided in this (S)2A.3, Borrower shall reimburse Agent, as set forth
in (S)2A.2 above. Notwithstanding anything contained in (S)2A.2 above or this
(S)2A.3 to the contrary, however, unless Borrower shall have notified the Agent
and Fronting Bank prior to 11:00 a.m. (New York time) on the Business Day
immediately prior to the date of such drawing that Borrower intends to reimburse
Fronting Bank for the amount of such drawing with funds other than the proceeds
of the Loans, Borrower shall be deemed to have timely given a Completed
Revolving Credit Loan Request pursuant to (S)2.6 to Agent, requesting a Base
Rate Loan on the date on which such drawing is honored and in an amount equal to
the amount of such drawing. The Borrower may thereafter convert any such Base
Rate Loan to a Revolving Credit Loan of another Type in accordance with (S)2.7.
Each Bank shall, in accordance with (S)2.8, make available such Bank's
Commitment Percentage of such Revolving Credit Loan to Agent, the proceeds of
which shall be applied directly by Agent to reimburse Fronting Bank for the
amount of such draw. In the event that any Bank fails to make available to
Agent the amount of such Bank's Commitment Percentage of such Revolving Credit
Loan on the date of the drawing, Agent shall be entitled to recover such amount
on demand from such Bank plus any additional amounts payable under (S)2.8(b) in
the event of a late funding by a Bank. The Fronting Bank is irrevocably
authorized by the Borrower and each of the Banks to honor draws on each Letter
of Credit by the beneficiary thereof in accordance with the terms of the Letter
of Credit. The responsibility of the Agent to the Borrower and the Banks shall
be only to determine that the documents (including each draft) delivered under
each Letter of Credit in connection with such presentment shall be in conformity
in all material respects with such Letter of Credit.
(S)2A.4. Obligations Absolute. The Borrower's obligations under this (S)2A
--------------------
shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Agent, any Bank or any
(36)
beneficiary of a Letter of Credit. The Borrower further agrees with the Agent
and the Banks that the Agent and the Banks shall not be responsible for, and the
Borrower's Reimbursement Obligations under (S)2A.2 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon (so long as the documents delivered under each Letter of
Credit in connection with such presentment shall be in the form required by, and
in conformity in all material respects with, such Letter of Credit), even if
such documents should in fact prove to be in any or all respects invalid,
fraudulent or forged, or any dispute between or among the Borrower, the
beneficiary of any Letter of Credit or any financing institution or other party
to whom any Letter of Credit may be transferred, or any claims or defenses
whatsoever of the Borrower against the beneficiary of any Letter of Credit or
any such transferee. If done in good faith and absent gross negligence, the
Agent and the Banks shall not be liable for any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit. The Borrower agrees that
any action taken or omitted by the Agent or any Bank under or in connection with
each Letter of Credit and the related drafts and documents, if done in good
faith and absent gross negligence, shall be binding upon the Borrower and shall
not result in any liability on the part of the Agent or any Bank to the
Borrower.
(S)2A.5. Reliance by Issuer. To the extent not inconsistent with (S)2A.4,
------------------
the Agent and any Fronting Bank shall be entitled to rely, and shall be fully
protected in relying upon, any Letter of Credit, draft, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Agent. The Agent and any Fronting
Bank shall be fully justified in failing or refusing to take any action under
this (S)2A unless it shall first have received such advice or concurrence of the
Majority Banks as it reasonably deems appropriate or it shall first be
indemnified to its reasonable satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent and any Fronting Bank shall in all
cases be fully protected by the Banks in acting, or in refraining from acting,
under this (S)2A in accordance with a request of the Majority Banks, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon the Banks and all future holders of the Notes or of a Letter of Credit
Participation.
(S)2A.6. Letter of Credit Fee. The Borrower shall pay to the Agent a fee
--------------------
(in each case, a "Letter of Credit Fee") in an amount equal to the Applicable
L/C Percentage of the undrawn amount of each outstanding Letter of Credit, which
(37)
fee (a) shall be payable quarterly in arrears on the first day of each calendar
quarter for the immediately preceding calendar quarter, with a final payment on
the Maturity Date or any earlier date on which the Commitments shall terminate
(which Letter of Credit Fee shall be pro-rated for any calendar quarter in which
such Letter of Credit is issued, drawn upon or otherwise reduced or terminated)
and (b) shall be for the accounts of the Banks as follows: (i) an amount equal
to 0.25% per annum of the undrawn amount of the Letter of Credit shall be for
the account of the Fronting Bank and (ii) the remainder of the Letter of Credit
Fee shall be for the accounts of the Bank (including the Fronting Bank) pro rata
in accordance with their respective Commitment Percentages.
(S)2A.7. Existing Letter of Credit. The letter of credit dated November
-------------------------
14, 1996 issued by BankBoston to Burlington Retail Limited Partnership shall for
all purposes be deemed to be a Letter of Credit issued under this Agreement.
(S)2B. COMPETITIVE BID LOANS.
---------------------
(S)2B.1. The Competitive Bid Options. In addition to the Revolving Credit
---------------------------
Loans made pursuant to (S)2 hereof, the Borrower may request Competitive Bid
Loans pursuant to the terms of this (S)2B. The Banks may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept such offers in the manner set forth in this (S)2B.
Notwithstanding any other provision herein to the contrary, at no time shall (a)
the aggregate principal amount of Competitive Bid Loans outstanding at any time
exceed the lesser of (i) the Total Commitment minus the sum of (A) the aggregate
outstanding principal amount of Revolving Credit Loans, plus (B) the Maximum
Drawing Amount, or (ii) $140,000,000, or (b) Competitive Bid Loans be
outstanding in respect of more than five (5) Competitive Bid Quote Requests.
(S)2B.2. Competitive Bid Loan Accounts: Competitive Bid Notes.
----------------------------------------------------
(a) The obligation of the Borrower to repay the outstanding principal
amount of any and all Competitive Bid Loans, plus interest accrued thereon at
the Competitive Bid Rate or the sum of the Competitive Bid Margin plus the
applicable Eurodollar Rate (as the case may be), shall be evidenced by this
Agreement and by individual loan accounts (collectively, the "Competitive Bid
Loan Accounts" and individually, a "Competitive Bid Loan Account") maintained by
the Agent on its books for each of the Banks, it being the intention of the
parties hereto that, except as provided for in paragraph (b) of this (S)2B.2,
the Borrower's obligations with respect to Competitive Bid Loans are to be
evidenced only as stated herein and not by separate promissory notes and shall
hereby constitute an absolute promise to pay without notice, presentment,
(38)
demand or set off, except as otherwise provided in this Agreement or the other
Loan Documents.
(b) Any Bank may at any time, and from time to time, request that any
Competitive Bid Loans outstanding to such Bank be evidenced by a promissory note
of the Borrower in substantially the form of Exhibit G hereto (each, a
"Competitive Bid Note"), dated as of the Closing Date and completed with
appropriate insertions. One Competitive Bid Note shall be payable to the order
of each Bank in an amount equal to the maximum principal amount of the
Competitive Bid Loan(s) made or which may thereafter be made by such Bank to the
Borrower, and representing the obligation of the Borrower to pay such Bank such
principal amount or, if less, the outstanding principal amount of any and all
Competitive Bid Loans made by such Bank, plus interest at the applicable
Competitive Bid Rate or the sum of the Competitive Bid Margin plus the
applicable Eurodollar Rate accrued thereon, as set forth herein. Upon execution
and delivery by the Borrower of a Competitive Bid Note, the Borrower's
obligation to repay any and all Competitive Bid Loans made to it by such Bank
and all interest thereon shall thereafter be evidenced by such Competitive Bid
Note.
(c) The Borrower irrevocably authorizes (i) each Bank to make or cause
to be made, at the time of the Drawdown Date of any Competitive Bid Loan or at
the time of receipt of any payment of principal on such Bank's Competitive Bid
Note in the case of a Competitive Bid Note, and (ii) the Agent to make or cause
to be made, at the time of the Drawdown Date of any Competitive Bid Loan or at
the time of receipt of any payment of principal on such Bank's Competitive Bid
Loan Account in the case of a Competitive Bid Loan Account, an appropriate
notation on such Bank's records or on the schedule (or a continuation thereof)
attached to such Bank's Competitive Bid Note, or the Agent's records, as
applicable, reflecting the making of the Competitive Bid Loan or the receipt of
such payment (as the case may be) and may, prior to any permitted transfer of a
Competitive Bid Note, endorse on the reverse side thereof the outstanding
principal amount of Competitive Bid Loans evidenced thereby. The outstanding
amount of the Competitive Bid Loans set forth on such Bank's records or the
Agent's records, as applicable, shall be prima facie evidence of the principal
amount thereof owing and unpaid to such Bank, but the failure to record, or any
error in so recording, any such amount shall not limit or otherwise affect the
obligations of the Borrower hereunder or under any Competitive Bid Note to make
payments of principal of or interest on any Competitive Bid Loan when due.
(39)
(S)2B.3. Competitive Bid Quote Request; Invitation for Competitive Bid
-------------------------------------------------------------
Quotes.
------
(a) When the Borrower wishes to request offers to make Competitive
Bid Loans under this (S)2B, it shall transmit to the Agent by telex or facsimile
a Competitive Bid Quote Request substantially in the form of Exhibit H hereto (a
"Competitive Bid Quote Request") so as to be received no later than 10:00 a.m.
(Boston time) (i) five (5) Business Days prior to the requested Drawdown Date in
the case of a Competitive Bid Loan bearing interest calculated by reference to
the Eurodollar Rate (a "Eurodollar Competitive Bid Loan") or (ii) three (3)
Business Days prior to the requested Drawdown Date in the case of a Competitive
Bid Loan bearing interest calculated by reference to a fixed rate of interest
(an "Absolute Competitive Bid Loan"), specifying:
(A) the requested Drawdown Date (which must be a Business Day);
(B) the aggregate amount of such Competitive Bid Loans, which
shall be $10,000,000 or an integral multiple of $500,000 in excess thereof;
(C) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period; and
(D) whether the Competitive Bid Quotes requested are for
Eurodollar Competitive Bid Loans or Absolute Competitive Bid Loans.
The Borrower may request offers to make Competitive Bid Loans for more than one
(1) Interest Period in a single Competitive Bid Quote Request. No new
Competitive Bid Quote Request shall be given until the Borrower has notified the
Agent of its acceptance or non-acceptance of the Competitive Bid Quotes relating
to any outstanding Competitive Bid Quote Request.
(b) Promptly upon receipt of a Competitive Bid Quote Request and
payment by the Borrower of a $1,500.00 auction fee to the Agent for its own
account, the Agent shall send to the Banks by telecopy or facsimile transmission
an Invitation for Competitive Bid Quotes substantially in the form of Exhibit I
hereto, which shall constitute an invitation by the Borrower to each Bank to
submit Competitive Bid Quotes in accordance with this (S)2B.
(S)2B.4. Alternative Manner of Procedure. If, after receipt by the Agent
-------------------------------
and each of the Banks of a Competitive Bid Quote Request from the Borrower in
accordance with (S)2B.3, the Agent or any Bank shall be unable to complete any
procedure of the auction process described in (S)(S)2B.5 through 2B.6
(inclusive) due to the inability of such Person to transmit or receive
communications
(40)
through the means specified therein, such Person may rely on telephonic notice
for the transmission or receipt of such communications. In any case where such
Person shall rely on telephone transmission or receipt, any communication made
by telephone shall, as soon as possible thereafter, be followed by written
confirmation thereof.
(S)2B.5. Submission and Contents of Competitive Bid Quotes.
-------------------------------------------------
(a) Each Bank may, but shall be under no obligation to, submit a
Competitive Bid Quote containing an offer or offers to make Competitive Bid
Loans in response to any Competitive Bid Quote Request. Each Competitive Bid
Quote must comply with the requirements of this (S)2B.5 and must be submitted to
the Agent by telex or facsimile transmission at its offices as specified in or
pursuant to (S)20 not later than (i) 3:00 p.m. (Boston time) on the fourth (4th)
Business Day prior to the proposed Drawdown Date, in the case of a Eurodollar
Competitive Bid Loan or (ii) 10:30 a.m. (Boston time) on the second (2nd)
Business Day prior to the proposed Drawdown Date, in the case of an Absolute
Competitive Bid Loan, provided that Competitive Bid Quotes may be submitted by
the Agent in its capacity as a Bank only if it submits its Competitive Bid Quote
to the Borrower not later than (x) one hour prior to the deadline for the other
Banks, in the case of a Eurodollar Competitive Bid Loan, or (y) 45 minutes prior
to the deadline for the other Banks, in the case of an Absolute Competitive Bid
Loan. Subject to the provisions of (S)(S)11 and 12 hereof, any Competitive Bid
Quote so made shall be irrevocable except with the written consent of the Agent
given on the instructions of the Borrower.
(b) Each Competitive Bid Quote shall be in substantially the form of
Exhibit J hereto and shall in any case specify:
(i) the proposed Drawdown Date;
(ii) the principal amount of the Competitive Bid Loan for which
each proposal is being made, which principal amount (i) may be greater than or
less than the Commitment of the quoting Bank, (ii) must be $5,000,000 or an
integral multiple of $500,000 in excess thereof, (iii) may not exceed the
aggregate principal amount of Competitive Bid Loans for which offers were
requested and (iv) may be subject to an aggregate limitation as to the principal
amount of Competitive Bid Loans for which offers being made by such quoting Bank
may be accepted;
(iii) the Interest Periods for which Competitive Bid Quotes are
being submitted;
(41)
(iv) in the case of a Eurodollar Competitive Bid Loan, the
margin above the applicable Eurodollar Rate (the "Competitive Bid Margin")
offered for each such Eurodollar Competitive Bid Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to such Eurodollar Rate;
(v) in the case of an Absolute Competitive Bid Loan, the rate
of interest per annum (specified to the nearest 1/10,000th of 1%) (the
"Competitive Bid Rate") offered for each such Absolute Competitive Bid Loan; and
(vi) the identity of the quoting Bank.
A Competitive Bid Quote may include up to five (5) separate offers by the
quoting Bank with respect to each Interest Period specified in the related
Invitation for Competitive Bid Quotes.
(c) Any Competitive Bid Quote shall be disregarded if it:
(i) is not substantially in the form of Exhibit J hereto or
does not specify all of the information required by (S)2B.5(b);
(ii) contains qualifying, conditional or similar language;
(iii) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bid Quotes; or
(iv) arrives after the time set forth in (S)2B.5(a) hereof.
(S)2B.6. Notice to Borrower. The Agent shall promptly notify the Borrower
------------------
of the terms (a) of any Competitive Bid Quote submitted by a Bank that is in
accordance with (S)2B.5 and (b) of any Competitive Bid Quote that amends,
modifies or is otherwise inconsistent with a previous Competitive Bid Quote
submitted by such Bank with respect to the same Competitive Bid Quote Request.
Any such subsequent Competitive Bid Quote shall be disregarded by the Agent
unless such subsequent Competitive Bid Quote is submitted solely to correct a
manifest error in such former Competitive Bid Quote and was received by the
Agent within the time period required in (S)2B.5(a) for receipt of Competitive
Bid Quotes. The Agent's notice to the Borrower shall specify (i) the aggregate
principal amount of Competitive Bid Loans for which offers have been received
for each Interest Period specified in the related Competitive Bid Quote Request,
(ii) the respective principal amounts and Competitive Bid Margins or Competitive
Bid Rates, as the case may be, so offered, and the identity of the
(42)
respective Banks submitting such offers, and (iii) if applicable, limitations on
the aggregate principal amount of Competitive Bid Loans for which offers in any
single Competitive Bid Quote may be accepted.
(S)2B.7. Acceptance and Notice by Borrower and Agent. Not later than 10:30
-------------------------------------------
a.m. (Boston time) on (a) the third (3rd) Business Day prior to the proposed
Drawdown Date, in the case of a Eurodollar Competitive Bid Loan or (b) the
second (2nd) Business Day prior to the proposed Drawdown Date, in the case of an
Absolute Competitive Bid Loan, the Borrower shall notify the Agent of its
acceptance or non-acceptance of each Competitive Bid Quote in substantially the
form of Exhibit K hereto. The Borrower may accept any Competitive Bid Quote in
whole or in part; provided that:
(i) the aggregate principal amount of each Competitive Bid
Loan may not exceed the applicable amount set forth in the related Competitive
Bid Quote Request;
(ii) acceptance of offers may only be made on the basis of
ascending Competitive Bid Margins or Competitive Bid Rates, as the case may be;
and
(iii) the Borrower may not accept any offer that is described in
subsection 2B.5(c) or that otherwise fails to comply with the requirements of
this Agreement.
The Agent shall promptly notify each Bank which submitted a Competitive Bid
Quote of the Borrower's acceptance or non-acceptance thereof. At the request of
any Bank which submitted a Competitive Bid Quote and with the consent of the
Borrower, the Agent will promptly notify all Banks which submitted Competitive
Bid Quotes of the aggregate principal amount of, and the range of Competitive
Bid Rates or Competitive Bid Margins of, the accepted Competitive Bid Loans for
each requested Interest Period.
(S)2B.8. Allocation by Agent. If offers are made by two (2) or more Banks
-------------------
with the same Competitive Bid Margin or Competitive Bid Rate, as the case may
be, for a greater aggregate principal amount than the amount in respect of which
offers are accepted for the related Interest Period, the principal amount of
Competitive Bid Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Banks as nearly as possible (in such
multiples, not less than $500,000, as the Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers. Determinations by
the Agent of the amounts of Competitive Bid Loans shall be conclusive in the
absence of manifest error.
(43)
(S)2B.9. Funding of Competitive Bid Loans. If, on or prior to the
--------------------------------
Drawdown Date of any Competitive Bid Loan, the Total Commitment has not been
terminated in full and if, on such Drawdown Date, the applicable conditions of
(S)(S)11 and 12 hereof are satisfied, the Bank or Banks whose offers the
Borrower has accepted will fund each Competitive Bid Loan so accepted. Such
Bank or Banks will make such Competitive Bid Loans by crediting the Agent for
further credit to a specified account of the Borrower with the Agent, in
immediately available funds not later than 1:00 p.m. (Boston time) on such
Drawdown Date. No such Bank or Banks shall be obligated to fund any Competitive
Bid Loan unless (a) both before and after giving effect to the Competitive Bid
Loan in question, all of the conditions contained in (S)11 shall have been
satisfied as of the Closing Date (to the extent such conditions have not been
waived in writing by the Banks and/or deferred in writing to be a condition to
the initial advance) and all of the conditions set forth in (S)12 shall have
been met, including, without limitation, the condition under (S)12.1 that there
be no Default or Event of Default under this Agreement; and (b) the Agent shall
have received (with copies for each Bank) a certificate in the form of Exhibit D
---------
hereto signed by the chief financial officer or treasurer of the Borrower
setting forth computations evidencing compliance with the covenants contained in
(S)9 on a pro forma basis after giving effect to such requested Competitive Bid
--- -----
Loan, and, for purposes of calculating pro forma compliance under (S)9.6,
--- -----
Consolidated Unsecured Debt Service Charges shall be calculated, for the quarter
in which the loan request is made, using the higher of (x) the actual annual
interest rate applicable to the Competitive Bid Loans on the date that such
certificate is submitted, and (y) the sum of two percent (2%) plus the imputed
----
seven (7) year United States Treasury notes yield on such date based upon
published quotes for Treasury notes having seven (7) years to maturity (and
attaching a copy of the pro forma analysis used in determining such compliance),
--- -----
and certifying that, both before and after giving effect to such requested
Competitive Bid Loan, no Default or Event of Default exists or will exist under
this Agreement or any other Loan Document, and that after taking into account
such requested Competitive Bid Loan, no default will exist as of the Drawdown
Date or thereafter.
(S)2B.10. Funding Losses. If, after acceptance of any Competitive Bid
--------------
Quote pursuant to this (S)2B, the Borrower (a) fails to borrow any Competitive
Bid Loan so accepted on the date specified therefor, or (b) repays the
outstanding amount of the Competitive Bid Loan prior to the last day of the
Interest Period relating thereto, the Borrower shall indemnify the Bank making
such accepted Competitive Bid Quote or funding such Competitive Bid Loan against
any loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Bank to fund or maintain such
unborrowed Loans, including, without limitation, compensation as provided in
(S)4.8.
(44)
(S)2B.11. Repayment of Competitive Bid Loans; Interest. The principal of
--------------------------------------------
each Competitive Bid Loan shall become absolutely due and payable by the
Borrower on the last day of the Interest Period relating thereto, and the
Borrower hereby absolutely and unconditionally promises to pay to the Agent for
the account of the relevant Banks at or before 1:00 p.m. (Boston time) on the
last day of the Interest Periods relating thereto the principal amount of all
such Competitive Bid Loans, plus interest thereon at the Competitive Bid Rate or
the sum of the Competitive Bid Margin plus the applicable Eurodollar Rate (as
the case may be). The Competitive Bid Loans shall bear interest at the rate per
annum specified in the applicable accepted Competitive Bid Quotes. Interest on
the Competitive Bid Loans shall be payable (a) on the last day of the applicable
Interest Periods, and if any such Interest Period is longer than three (3)
months, also on the last day of the third month following the commencement of
such Interest Period, and (b) on the Maturity Date for all Loans. Subject to the
terms of this Agreement, the Borrower may make Competitive Bid Quote Requests
with respect to new borrowings of any amounts so repaid prior to the Maturity
Date. The provisions of (S)2.6 shall not apply to Competitive Bid Loans. Subject
to the other terms and conditions of this Agreement, the Borrower may borrow
Loans under this Agreement in order to repay Competitive Bid Loans when due.
(S)2B.12. Optional Repayment of Competitive Bid Loans. The Borrower shall
-------------------------------------------
have the right, at its election, to repay the outstanding amount of any of the
Competitive Bid Loans, in whole or in part, at any time without penalty or
premium, provided that any full or partial prepayment of the outstanding amount
of any Competitive Bid Loan pursuant to this (S)2B.12 may be made only on the
last day of the Interest Period relating thereto, or, if made prior to such
date, shall be made subject to the provisions of (S)2B.10 hereof. The Borrower
shall give the Agent no less than three (3) Business Days' notice of any
proposed prepayment pursuant to this (S)2B.12, specifying the proposed date of
prepayment of the Competitive Bid Loan and the principal amount to be prepaid.
Each such partial prepayment of any Competitive Bid Loan shall be in an integral
multiple of $500,000, and shall be accompanied by the payment of accrued
interest on the principal prepaid to the date of prepayment.
(S)3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
---------------------------------------
(S)3.1. Maturity. The Borrower promises to pay on the Maturity Date, and
--------
there shall become absolutely due and payable on the Maturity Date, all unpaid
principal of the Revolving Credit Loans outstanding on such date, together with
any and all accrued and unpaid interest thereon, the unpaid balance of the
Commitment Fee accrued through such date, and any and all other unpaid amounts
due under this Agreement, the Revolving Credit Notes or any other of the Loan
Documents.
(45)
(S)3.2. Optional Repayments of Revolving Credit Loans. The Borrower shall
---------------------------------------------
have the right, at its election, to prepay the outstanding amount of the
Revolving Credit Loans, in whole or in part, at any time without penalty or
premium; provided that the outstanding amount of any Revolving Credit Eurodollar
--------
Rate Loans may not be prepaid unless the Borrower pays the Eurodollar Breakage
Costs for each Revolving Credit Eurodollar Rate Loan so prepaid at the time of
such prepayment. The Borrower shall give the Agent (with copies for each Bank),
no later than 10:00 a.m., Boston time, at least two (2) Business Days' prior
written notice of any prepayment pursuant to this (S)3.2 of any Base Rate Loans,
and at least four (4) Eurodollar Business Days' notice of any proposed
prepayment pursuant to this (S)3.2 of Revolving Credit Eurodollar Rate Loans,
specifying the proposed date of prepayment of Revolving Credit Loans and the
principal amount to be prepaid. Each such partial prepayment of the Loans shall
be in an integral multiple of $100,000, or, if less, the outstanding balance of
the Revolving Credit Loans then being repaid, shall be accompanied by the
payment of all charges outstanding on all Revolving Credit Loans so prepaid and
of all accrued interest on the principal prepaid to the date of payment, and
shall be applied, in the absence of instruction by the Borrower, first to the
principal of Base Rate Loans and then to the principal of Eurodollar Rate Loans,
at the Agent's option.
(S)4. CERTAIN GENERAL PROVISIONS.
--------------------------
(S)4.1. Funds for Payments.
------------------
(a) All payments of principal, interest, fees, and any other
amounts due hereunder or under any of the other Loan Documents shall be made to
the Agent, for the respective accounts of the Banks or (as the case may be) the
Agent, at the Agent's Head Office, in each case in Dollars and in immediately
available funds.
(b) All payments by the Borrower hereunder and under any of the
other Loan Documents shall be made without setoff or counterclaim and free and
clear of and without deduction for any taxes, levies, imposts, duties, charges,
fees, deductions, withholdings, compulsory liens, restrictions or conditions of
any nature now or hereafter imposed or levied by any jurisdiction or any
political subdivision thereof or taxing or other authority therein unless the
Borrower is compelled by law to make such deduction or withholding. If any such
obligation is imposed upon the Borrower with respect to any amount payable by it
hereunder or under any of the other Loan Documents (except with respect to taxes
on the income or profits of the Agent or any Bank), the Borrower shall pay to
the Agent, for the account of the Banks or (as the case may be) the Agent, on
the date on which such amount is due and payable hereunder or under
(46)
such other Loan Document, such additional amount in Dollars as shall be
necessary to enable the Banks to receive the same net amount which the Banks
would have received on such due date had no such obligation been imposed upon
the Borrower. The Borrower will deliver promptly to the Agent (with copies for
each Bank) certificates or other valid vouchers for all taxes or other charges
deducted from or paid with respect to payments made by the Borrower hereunder or
under such other Loan Document.
(S)4.2. Computations. All computations of interest on the Loans and of
------------
other fees to the extent applicable shall be based on a 360-day year and paid
for the actual number of days elapsed. Except as otherwise provided in the
definition of the term "Interest Period" with respect to Eurodollar Rate Loans,
whenever a payment hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and interest shall accrue during
such extension. The outstanding amount of the Loans as reflected on the Record
from time to time shall constitute prima facie evidence of the principal amount
thereof.
(S)4.3. Inability to Determine Eurodollar Rate. In the event, prior to
--------------------------------------
the commencement of any Interest Period relating to any Eurodollar Rate Loan,
the Agent shall reasonably determine that adequate and reasonable methods do not
exist for ascertaining the Eurodollar Rate that would otherwise determine the
rate of interest to be applicable to any Eurodollar Rate Loan during any
Interest Period, the Agent shall forthwith give notice of such determination
(which shall be conclusive and binding on the Borrower) to the Borrower and the
Banks. In such event (a) any Completed Revolving Credit Loan Request or
Competitive Bid Quote Request with respect to Eurodollar Rate Loans shall be
automatically withdrawn and shall be deemed a request for Base Rate Loans (in
the case of Revolving Credit Loans) or Absolute Competitive Bid Loans (in the
case of Competitive Bids Loans), (b) each Revolving Credit Eurodollar Rate Loan
will automatically, on the last day of the then current Interest Period thereof,
become a Base Rate Loan, and (c) the obligations of the Banks to make Eurodollar
Rate Loans shall be suspended until the Agent reasonably determines that the
circumstances giving rise to such suspension no longer exist, whereupon the
Agent shall so notify the Borrower and the Banks.
(S)4.4. Illegality. Notwithstanding any other provisions herein, if any
----------
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Bank to make or maintain
Eurodollar Rate Loans, such Bank shall forthwith give notice of such
circumstances to the Borrower and thereupon (a) the commitment of such Bank to
make Eurodollar Rate Loans or convert Base Rate Loans to Revolving Credit
Eurodollar Rate Loans shall forthwith be suspended and (b) such Bank's
(47)
Commitment Percentage of a Revolving Credit Eurodollar Rate Loans then
outstanding shall be converted automatically to Base Rate Loans on the last day
of each Interest Period applicable to such Revolving Credit Eurodollar Rate
Loans or within such earlier period as may be required by law, all until such
time as it is no longer unlawful for such Bank to make or maintain Eurodollar
Rate Loans. The Borrower hereby agrees promptly to pay the Agent for the
account of such Bank, upon demand, any additional amounts necessary to
compensate such Bank for any costs incurred by such Bank in making any
conversion required by this (S)4.4 prior to the last day of an Interest Period
with respect to a Revolving Credit Eurodollar Rate Loan, including any interest
or fees payable by such Bank to lenders of funds obtained by it in order to make
or maintain its Eurodollar Rate Loans hereunder.
(S)4.5. Additional Costs, Etc. If any present or future applicable law,
---------------------
which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank by any central bank or other fiscal, monetary or
other authority (whether or not having the force of law, but if not having the
force of law, then generally applied by the Banks with respect to similar
loans), shall:
(a) subject any Bank to any tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature with respect to this Agreement, the
other Loan Documents, any Letters of Credit, such Bank's Commitment or the Loans
(other than taxes based upon or measured by the income or profits of such Bank),
or
(b) materially change the basis of taxation (except for changes
in taxes on income or profits) of payments to any Bank of the principal of or
the interest on any Loans or any other amounts payable to the Agent or any Bank
under this Agreement or the other Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held by, or
deposits in or for the account of, or loans by, or letters of credit issued by,
or commitments of an office of any Bank, or
(d) impose on any Bank any other conditions or requirements with
respect to this Agreement, the other Loan Documents, any Letters of
(48)
Credit, the Loans, such Bank's Commitment, or any class of loans, letters of
credit or commitments of which any of the Loans or such Bank's Commitment forms
a part;
and the result of any of the foregoing is
(i) to increase the cost to any Bank of making, funding,
issuing, renewing, extending or maintaining any of the Loans or such
Bank's Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest, Reimbursement
Obligation or other amount payable to such Bank hereunder on account
of such Bank's Commitment, any Letter of Credit or any of the Loans,
or
(iii) to require such Bank to make any payment or to forego any
interest or Reimbursement Obligation or other sum payable hereunder,
the amount of which payment or foregone interest or Reimbursement
Obligation or other sum is calculated by reference to the gross amount
of any sum receivable or deemed received by such Bank from the
Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by such Bank at
any time and from time to time and as often as the occasion therefor may arise,
pay to such Bank such additional amounts as such Bank shall determine in good
faith to be sufficient to compensate such Bank for such additional cost,
reduction, payment or foregone interest or other sum, provided that such Bank is
--------
generally imposing similar charges on its other similarly situated borrowers.
(S)4.6. Capital Adequacy. If any future law, governmental rule,
----------------
regulation, policy, guideline or directive (whether or not having the force of
law, but if not having the force of law, then generally applied by the Banks
with respect to similar loans) or the interpretation thereof by a court or
governmental authority with appropriate jurisdiction affects the amount of
capital required or expected to be maintained by banks or bank holding companies
and any Bank or the Agent determines that the amount of capital required to be
maintained by it is increased by or based upon the existence of Loans made or
deemed to be made pursuant hereto, then such Bank or the Agent may notify the
Borrower of such fact, and the Borrower shall pay to such Bank or the Agent from
time to time on demand, as an additional fee payable hereunder, such amount as
such Bank or the Agent shall determine in good faith and certify in a notice to
the Borrower to be an amount that will adequately compensate such Bank in light
of these
(49)
circumstances for its increased costs of maintaining such capital. Each Bank
and the Agent shall allocate such cost increases among its customers in good
faith and on an equitable basis, and will not charge the Borrower unless it is
generally imposing a similar charge on its other similarly situated borrowers.
(S)4.7. Certificate. A certificate setting forth any additional amounts
-----------
payable pursuant to (S)(S)4.5 or 4.6 and a brief explanation of such amounts
which are due, submitted by any Bank or the Agent to the Borrower, shall be
prima facie evidence that such amounts are due and owing.
----- -----
(S)4.8. Indemnity. In addition to the other provisions of this Agreement
---------
regarding such matters, the Borrower agrees to indemnify the Agent and each Bank
and to hold the Agent and each Bank harmless from and against any loss, cost or
expense (including loss of anticipated profits) that the Agent or such Bank may
sustain or incur as a consequence of (a) the failure by the Borrower to pay any
principal amount of or any interest on any Eurodollar Rate Loans as and when due
and payable, including any such loss or expense arising from interest or fees
payable by the Agent or such Bank to lenders of funds obtained by it in order to
maintain its Eurodollar Rate Loans, (b) the failure by the Borrower to make a
borrowing or conversion after the Borrower has given a Completed Revolving
Credit Loan Request or accepted a Competitive Bid Quote for a Eurodollar Rate
Loan or a Conversion Request for a Revolving Credit Eurodollar Rate Loan, and
(c) the making of any payment of a Eurodollar Rate Loan or the making of any
conversion of any such Loan to a Base Rate Loan on a day that is not the last
day of the applicable Interest Period with respect thereto, including interest
or fees payable by the Agent or a Bank to lenders of funds obtained by it in
order to maintain any such Eurodollar Rate Loans.
(S)4.9. Interest on Overdue Amounts. Overdue principal and (to the extent
---------------------------
permitted by applicable law) interest on the Loans and all other overdue amounts
payable hereunder or under any of the other Loan Documents shall bear interest
payable on demand at a rate per annum equal to four percent (4%) above the Base
Rate until such amount shall be paid in full (after as well as before judgment).
In addition, the Borrower shall pay a late charge equal to three percent (3%) of
any amount of principal (other than principal due on the Maturity Date) and/or
interest charges on the Loans which is not paid within ten (10) days of the date
when due.
(S)4.10. HLT Classification. The Agent and each of the Banks hereby
------------------
confirms that as of the date hereof none of the Loans, the Letters of Credit or
the Commitment are classified as "highly leveraged transactions".
Notwithstanding the foregoing, if after the date hereof, the Agent determines,
or is advised by any Bank that such Bank has determined, or is advised by any
Bank that such Bank has received notice from any governmental authority,
(50)
central bank or comparable agency having jurisdiction over such Bank, that any
of the Commitments or Loans or Letters of Credit or Letter of Credit
Participations are classified as a "highly leveraged transaction" (an "HLT
Classification") pursuant to any existing regulations regarding "highly
leveraged transactions" or any modification, amendment or interpretation
thereof, or the adoption of new regulations regarding "highly leveraged
transactions" after the date hereof by any governmental authority, central bank
or comparable agency, the Agent shall promptly give notice of such HLT
Classification to the Borrower and the Banks. The Agent, the Banks and the
Borrower shall thereupon commence negotiations in good faith to agree on the
extent to which fees, interest rates and/or margins hereunder should be
increased so as to reflect such HLT Classification. If the Borrower and the
Banks subject to such HLT Classification agree on the amount of such increase or
increases, this Agreement shall be promptly amended to give effect to such
increase or increases. If the Borrower and the Banks subject to such HLT
Classification fail to so agree and the Borrower has failed to refinance the
Obligations within one hundred and twenty (120) days after notice is given by
the Agent as provided above, then the Agent shall, if so requested by such
Banks, by notice to the Borrower terminate the Commitments of such Banks, and
such Commitments shall thereupon terminate, and the Borrower shall on such date
make mandatory prepayment of all outstanding principal, interest and other
amounts due to such Banks on account of Loans made by them as if the Borrower
had elected to make a prepayment of such amounts in accordance with (S)3.2 and
shall pay such other amounts as would be due under (S)3.2 on account of an
optional prepayment. The Agent and the Banks acknowledge that an HLT
Classification is not a default, Default or an Event of Default.
(S)5. GUARANTIES. Each of the Guarantors will guaranty the Obligations
----------
pursuant to its Guaranty. The Obligations are full recourse obligations of the
Borrower and each Subsidiary Guarantor, and all of the respective assets and
properties of the Borrower and each Subsidiary Guarantor shall be available for
the payment in full in cash and performance of the Obligations. The Guaranty of
any Subsidiary Guarantor shall be released by the Agent if and when all of the
Real Estate Assets owned or ground-leased by such Subsidiary Guarantor shall
cease to be Unencumbered Assets pursuant to the terms of this Agreement. The
Obligations are limited recourse obligations of BPC (whether in its own
capacity, in its capacity as a general partner of any Subsidiary Guarantor, in
its capacity as general partner of the Borrower (in the Borrower's own capacity
and/or in the Borrower's capacity as general partner of any Subsidiary
Guarantor) or otherwise) as provided in (S)28 hereof.
(S)6. REPRESENTATIONS AND WARRANTIES. The Borrower for itself and for
------------------------------
each Guarantor insofar as any such statements relate to such Guarantor
represents and warrants to the Banks all of the statements contained in this
(S)6.
(51)
(S)6.1. Authority; Etc.
--------------
(a) Organization; Good Standing.
---------------------------
(i) Each of the Borrower, 1333 and Burlington is a
limited partnership duly organized, validly existing and in good
standing under the laws of the State of Delaware; each Subsidiary
of the Borrower is duly organized, validly existing and in good
standing as a corporation or a partnership, as the case may be,
under the laws of the state of its organization; the Borrower,
1333, Burlington and each of the Borrower's Subsidiaries has all
requisite partnership or corporate, as the case may be, power to
own its respective properties and conduct its respective business
as now conducted and as presently contemplated; and each of the
Borrower, 1333, Burlington and the Borrower's other Subsidiaries
is in good standing as a foreign entity and is duly authorized to
do business in the jurisdictions where the Unencumbered Assets
owned or ground-leased by it are located and in each other
jurisdiction where such qualification is necessary except where a
failure to be so qualified in such other jurisdiction would not
have a materially adverse effect on any of their respective
businesses, assets or financial conditions.
(ii) BPC is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Maryland; each Subsidiary of BPC is duly organized, validly
existing and in good standing as a corporation or partnership, as
the case may be, under the laws of the state of its organization;
BPC and each of its Subsidiaries has all requisite corporate or
partnership, as the case may be, power to own its respective
properties and conduct its respective business as now conducted
and as presently contemplated; and BPC and each of its
Subsidiaries is in good standing as a foreign entity and is duly
authorized to do business in the jurisdictions where such
qualification is necessary (including, as to BPC, in the
Commonwealth of Massachusetts) except where a failure to be so
qualified in such other jurisdiction would not have a materially
adverse effect on the business, assets or financial condition of
BPC or such Subsidiary.
(52)
(iii) As to each subsequent Guarantor, a provision
similar, as applicable, to (a) (i) or (ii) above shall be
included in each such subsequent Guarantor's Guaranty, and the
Borrower shall be deemed to make for itself and on behalf of each
such subsequent Guarantor a representation and warranty as to
such provision regarding such subsequent Guarantor.
(b) Capitalization.
--------------
(i) The outstanding equity of the Borrower is
comprised of a general partner interest and limited partner
interests, all of which have been duly issued and are outstanding
and fully paid and non-assessable as set forth in Schedule 6.1(b)
---------------
hereto. All of the issued and outstanding general partner
interests of the Borrower are owned and held of record by BPC;
all of the limited partner interests of the Borrower are owned
and held of record as set forth in Schedule 6.1(b) hereto. Except
---------------
as set forth in the Agreement of Limited Partnership of the
Borrower or as disclosed in Schedule 6.1(b) hereto, as of the
---------------
Closing Date there are no outstanding securities or agreements
exchangeable for or convertible into or carrying any rights to
acquire any equity interests in the Borrower. Except as disclosed
in the SEC Filings or in Schedule 6.1(b), there are no
---------------
outstanding commitments, options, warrants, calls or other
agreements (whether written or oral) binding on the Borrower or
BPC which require or could require the Borrower or BPC to sell,
grant, transfer, assign, mortgage, pledge or otherwise dispose of
any equity interests of the Borrower. Except as set forth in the
Agreement of Limited Partnership of the Borrower, no general
partnership interests of the Borrower are subject to any
restrictions on transfer or any partner agreements, voting
agreements, trust deeds, irrevocable proxies, or any other
similar agreements or interests (whether written or oral).
(ii) As of the Closing Date, the authorized capital
stock of, or any other equity interests in, each of the
Borrower's Subsidiaries are as set forth in the SEC Filings, and
the issued and outstanding voting and non-voting shares of the
common stock of each of the Borrower's Subsidiaries, and all of
the other equity interests in such Subsidiaries, all of which
have been duly issued and are outstanding and fully
(53)
paid and non-assessable, are owned and held of record as set
forth in the SEC Filings. Except as disclosed in the SEC
Filings, as of the Closing Date there are no outstanding
securities or agreements exchangeable for or convertible into or
carrying any rights to acquire any equity interests in any of the
Borrower's Subsidiaries, and there are no outstanding options,
warrants, or other similar rights to acquire any shares of any
class in the capital of or any other equity interests in any of
the Borrower's Subsidiaries. Except as disclosed in the SEC
Filings, as of the Closing Date there are no outstanding
commitments, options, warrants, calls or other agreements or
obligations (whether written or oral) binding on any of the
Borrower's Subsidiaries to issue, sell, grant, transfer, assign,
mortgage, pledge or otherwise dispose of any shares of any class
in the capital of or other equity interests in any of the
Borrower's Subsidiaries. Except as disclosed in the SEC Filings,
no shares of, or equity interests in, any of the Borrower's
Subsidiaries held by the Borrower are subject to any restrictions
on transfer pursuant to any of the Borrower's Subsidiaries'
applicable partnership, charter, by-laws or any shareholder
agreements, voting agreements, voting trusts, trust agreements,
trust deeds, irrevocable proxies or any other similar agreements
or instruments (whether written or oral).
(iii) The outstanding equity of 1333 is comprised of a
general partner interest and a limited partner interest, all of
which have been duly issued and are outstanding and fully paid
and non-assessable. All of the issued and outstanding general
partner interests of 1333 are owned and held of record by Beacon
Property Management, L.P., and such general partner interests
comprise a 1% interest in 1333. All of the limited partner
interests of 1333 (comprising a 99% interest) are owned and held
of record by the Borrower. There are no outstanding securities or
agreements exchangeable for or convertible into or carrying any
rights to acquire any equity interests in 1333. There are no
outstanding commitments, options, warrants, calls or other
agreements (whether written or oral) binding on the Borrower,
Beacon Property Management, L.P., or BPC which require or could
require any of them to sell, grant, transfer, assign, mortgage,
pledge or otherwise dispose of any equity interests of 1333.
Except as set forth in the 1333 Agreement of Limited Partnership,
no general partnership interests of
(54)
1333 are subject to any restrictions on transfer or any partner
agreements, voting agreements, trust deeds, irrevocable proxies,
or any other similar agreements or interests (whether written or
oral).
(iv) 1333 has no Subsidiaries or subsidiaries.
(v) The outstanding equity of Burlington is
comprised of a general partner interest and a limited partner
interest, each of which has been duly issued and is outstanding
and fully paid and non-assessable. All of the issued and
outstanding general partner interests of Burlington are owned and
held of record by the Borrower, and such general partner
interests comprise a 99.9% interest in Burlington. All of the
limited partner interests of Burlington (comprising a .1%
interest) are owned and held of record by BPC. There are no
outstanding securities or agreements exchangeable for or
convertible into or carrying any rights to acquire any equity
interests in Burlington. There are no outstanding commitments,
options, warrants, calls or other agreements (whether written or
oral) binding on the Borrower or BPC which require or could
require either of them to sell, grant, transfer, assign,
mortgage, pledge or otherwise dispose of any equity interests of
Burlington. Except as set forth in the Burlington Agreement of
Limited Partnership, no general partnership interests of
Burlington are subject to any restrictions on transfer or any
partner agreements, voting agreements, trust deeds, irrevocable
proxies, or any other similar agreements or interests (whether
written or oral).
(vi) Burlington has no Subsidiaries or subsidiaries.
(vii) As to each subsequent Guarantor, provisions
similar to (b)(iii) and (iv) or (b)(v) and (vi), as applicable,
shall be included in each such subsequent Guarantor's Guaranty,
and the Borrower shall be deemed to make for itself and on behalf
of each such subsequent Guarantor a representation and warranty
as to such provisions regarding such subsequent Guarantor.
(c) Due Authorization. The execution, delivery and performance of
-----------------
this Agreement and the other Loan Documents to which the Borrower or any
of the Guarantors is or is to become a party and the transactions contemplated
(55)
hereby and thereby (i) are within the authority of the Borrower and such
Guarantor, (ii) have been duly authorized by all necessary proceedings on the
part of the Borrower or such Guarantor and any general partner thereof, (iii) do
not conflict with or result in any breach or contravention of any provision of
law, statute, rule or regulation to which the Borrower or such Guarantor is
subject or any judgment, order, writ, injunction, license or permit applicable
to the Borrower or such Guarantor, (iv) do not conflict with any provision of
the agreement of limited partnership, any certificate of limited partnership,
the charter documents or by-laws of the Borrower or such Guarantor or any
general partner thereof, and (v) do not contravene any provisions of, or
constitute a default, Default or Event of Default hereunder or a failure to
comply with any term, condition or provision of, any other agreement,
instrument, judgment, order, decree, permit, license or undertaking binding upon
or applicable to the Borrower or such Guarantor or any of the Borrower's or such
Guarantor's properties (except for any such failure to comply under any such
other agreement, instrument, judgment, order, decree, permit, license, or
undertaking as would not materially and adversely affect the condition
(financial or otherwise), properties, business or results of operations of the
Borrower, the Operating Subsidiaries or any Guarantor) or result in the creation
of any mortgage, pledge, security interest, lien, encumbrance or charge upon any
of the properties or assets of the Borrower, the Operating Subsidiaries or any
Guarantor.
(d) Enforceability. Each of the Loan Documents to which the Borrower
--------------
or any of the Guarantors is a party has been duly executed and delivered and
constitutes the legal, valid and binding obligations of the Borrower and each
Guarantor, as the case may be, subject only to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights and to the fact that the
availability of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding therefor may
be brought.
(S)6.2. Governmental Approvals. The execution, delivery and performance
----------------------
by the Borrower of this Agreement and by the Borrower and each Guarantor of the
other Loan Documents to which the Borrower or such Guarantor is or is to become
a party and the transactions contemplated hereby and thereby do not require (i)
the approval or consent of any governmental agency or authority other than those
already obtained, or (ii) filing with any governmental agency or authority,
other than filings which will be made with the SEC when and as required by law.
(56)
(S)6.3. Title to Properties; Leases.
---------------------------
The Borrower, the Operating Subsidiaries and the Guarantors each has good
title to all of its respective properties, assets and rights of every name and
nature purported to be owned by it, including, without limitation, that:
(a) As of the Closing Date (with respect to Unencumbered Assets
designated as such on the Closing Date) or the date of designation as an
Unencumbered Asset (with respect to Unencumbered Assets acquired and/or
designated as such after the Closing Date), and in each case to the best of its
knowledge thereafter, the Borrower or a Guarantor holds good and clear record
and marketable fee simple or leasehold title to (or an undivided condominium
interest in) the Unencumbered Assets, subject to no rights of others, including
any mortgages, conditional sales agreements, title retention agreements, liens
or encumbrances, except for Permitted Liens and, in the case of any ground-
leased Unencumbered Asset, the terms of such ground lease, as the same may then
or thereafter be amended from time to time in a manner consistent with the
minimum term for ground leases set forth in the definition of "Real Estate
Assets" in (S)1.1 above.
(b) The Borrower and each of the Guarantors will, as of the
Closing Date, own all of the assets as reflected in the financial statements of
the Borrower and BPC described in (S)6.4 or acquired since the date of such
financial statements (except property and assets sold or otherwise disposed of
in the ordinary course of business since that date).
(c) Each of the direct or indirect interests of the Borrower or
its Subsidiaries in any Partially-Owned Real Estate Holding Entity is set forth
on Schedule 6.3 hereto, including the type of entity in which the interest is
------------
held, the percentage interest owned by the Borrower or such Subsidiary in such
entity, the capacity in which the Borrower or such Subsidiary holds the
interest, and the Borrower's or such Subsidiaries' ownership interest therein.
(S)6.4. Financial Statements. The following financial statements have
--------------------
been furnished to each of the Banks:
(a) The unaudited consolidated balance sheet of the Borrower and
its Subsidiaries as of March 31, 1997 and their related unaudited consolidated
statements of operations (with supplemental consolidating schedules) for the
fiscal quarter ended March 31, 1997. Such balance sheet and statements of
operations have been prepared in accordance with GAAP and fairly present the
financial condition of the Borrower and its Subsidiaries as at the close of
business on the date thereof and the results of operations for the fiscal
quarter then ended. There are no contingent liabilities of the Borrower or
(57)
any of its Subsidiaries as of such date involving material amounts, known to the
officers of the Borrower or any of its Subsidiaries, not disclosed in said
balance sheet and the related notes thereto.
(b) [Intentionally Omitted]
(c) Unaudited statements of Net Operating Income and outstanding
Indebtedness as at March 31, 1997 and for the fiscal quarter then ended (or
portion thereof during which the Borrower or a Guarantor owned or ground-leased
such property) in respect of each Real Estate Asset (including the Unencumbered
Assets) owned or ground-leased by the Borrower or a Guarantor as of such date,
which statements fairly present such Net Operating Income and outstanding
Indebtedness with respect to such Real Estate Assets as of such date and for the
fiscal quarter (or such portion thereof) then ended. There are no contingent
liabilities in respect of such Real Estate Assets as of such date known to the
officers of the Borrower that involve material amounts not disclosed in such
statements.
(d) The unaudited consolidated balance sheet of BPC and its
Subsidiaries (including, without limitation, the Borrower and its Subsidiaries)
as of March 31, 1997 and their related consolidated statements of operations for
the fiscal quarter ended March 31, 1997. Such balance sheet and statements of
operations have been prepared in accordance with GAAP and fairly present the
financial condition of BPC and its Subsidiaries as of the close of business on
the date thereof and the results of operations for the fiscal quarter then
ended. There are no contingent liabilities of BPC as of such dates involving
material amounts, known to the officers of the Borrower or of BPC, not disclosed
in said financial statements and the related notes thereto.
(e) The SEC Filings, which contain (inter alia) certain
----- ----
environmental disclosures.
(S)6.5 [Intentionally Omitted.]
(S)6.6. Franchises, Patents, Copyrights, Etc. The Borrower, each
------------------------------------
Guarantor and each of their respective Subsidiaries possesses all franchises,
patents, copyrights, trademarks, trade names, licenses and permits, and rights
in respect of the foregoing, adequate for the conduct of their respective
businesses substantially as now conducted without known conflict with any rights
of others, including all Permits.
(S)6.7. Litigation. Except as stated on Schedule 6.7 there are no
---------- ------------
actions, suits, proceedings or investigations of any kind pending or threatened
against the Borrower, any Guarantor or any of their respective Subsidiaries
before any
(58)
court, tribunal or administrative agency or board that, if adversely determined,
might, either individually or in the aggregate, materially adversely affect the
properties, assets, financial condition or business of the Borrower, such
Guarantor or their respective Subsidiaries or materially impair the right of the
Borrower, such Guarantor or their respective Subsidiaries to carry on their
respective businesses substantially as now conducted by them, or result in any
substantial liability not adequately covered by insurance, or for which adequate
reserves are not maintained, as reflected in the applicable financial statements
of the Borrower and BPC, or which question the validity of this Agreement or any
of the other Loan Documents, or any action taken or to be taken pursuant hereto
or thereto.
(S)6.8. No Materially Adverse Contracts, Etc. Neither the Borrower, any
------------------------------------
Guarantor nor any of their respective Subsidiaries is subject to any charter,
corporate, partnership or other legal restriction, or any judgment, decree,
order, rule or regulation that has or is expected in the future to have a
materially adverse effect on their respective businesses, assets or financial
conditions. None of the Borrower, any Guarantor or any of their respective
Subsidiaries is a party to any contract or agreement that has or is expected, in
the judgment of their respective officers, to have any materially adverse effect
on the respective businesses of the Borrower, such Guarantor or their respective
Subsidiaries.
(S)6.9. Compliance With Other Instruments, Laws, Etc. Neither the
--------------------------------------------
Borrower, any Guarantor nor any of their respective Subsidiaries is in violation
of any provision of its partnership agreement or charter, as the case may be, or
any respective agreement or instrument to which it may be subject or by which it
or any of its properties may be bound or any decree, order, judgment, statute,
license, rule or regulation, in any of the foregoing cases in a manner that
could result, individually or in the aggregate, in the imposition of substantial
penalties or materially and adversely affect the financial condition, properties
or businesses of the Borrower, such Guarantor or their respective Subsidiaries.
(S)6.10. Tax Status.
----------
(a) (i) Each of the Borrower, the Guarantors and their
respective Subsidiaries (A) has made or filed all federal, state and local
income and all other tax returns, reports and declarations required by any
jurisdiction to which it is subject, (B) has paid all taxes and other
governmental assessments and charges shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith
and by appropriate proceedings, and (C) has set aside on its books provisions
reasonably adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply, and (ii) there are
no unpaid taxes in any material amount claimed to be due by the taxing authority
of any jurisdiction,
(59)
and the respective officers of the Borrower and the Guarantors and their
respective Subsidiaries know of no basis for any such claim.
(b) To the best of the Borrower's knowledge, except as otherwise
disclosed in writing to the Agent, each Partially-Owned Real Estate Holding
Entity (i) has made or filed all federal, state and local income and all other
tax returns, reports and declarations required by any jurisdiction to which it
is subject, (ii) has paid all taxes and other governmental assessments and
charges shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and by appropriate proceedings, and
(iii) has set aside on its books provisions reasonably adequate for the payment
of all taxes for periods subsequent to the periods to which such returns,
reports or declarations apply. To the best of the Borrower's knowledge, except
as otherwise disclosed in writing to the Agent, there are no unpaid taxes in any
material amount claimed to be due by the taxing authority of any jurisdiction
from any Partially-Owned Real Estate Holding Entity, and the officers of the
Borrower know of no basis for any such claim.
(S)6.11. No Event of Default. No default (except as may previously have
-------------------
been disclosed in writing), Default or Event of Default has occurred and is
continuing.
(S)6.12. Investment Company Acts. None of the Borrower, any Guarantor or
-----------------------
any of their respective Subsidiaries is an "investment company", or an
"affiliated company" or a "principal underwriter" of an "investment company", as
such terms are defined in the Investment Company Act of 1940.
(S)6.13. Absence of UCC Financing Statements, Etc. Except for Permitted
----------------------------------------
Liens, as of the Closing Date there will be no financing statement, security
agreement, chattel mortgage, real estate mortgage, equipment lease, financing
lease, option, encumbrance or other document filed or recorded with any filing
records, registry, or other public office, that purports to cover, affect or
give notice of any present or possible future lien or encumbrance on, or
security interest in, any Unencumbered Asset. Neither the Borrower nor any
Guarantor has pledged or granted any lien on or security interest in or
otherwise encumbered or transferred any of their respective interests in any
Subsidiary (including in the case of BPC, its interests in the Borrower, and in
the case of the Borrower, its interests in the Operating Subsidiaries) or in any
Partially-Owned Real Estate Holding Entity.
(S)6.14. Absence of Liens The Borrower or a Guarantor is the owner of or
----------------
the holder of a ground leasehold interest in the Unencumbered Assets free from
any lien, security interest, encumbrance and any other claim or demand, except
for Permitted Liens.
(60)
(S)6.15. Certain Transactions. Except as set forth on Schedule 6.15 or in
-------------------- -------------
the SEC Filings, none of the officers, partners, directors, or employees of the
Borrower or any of its Subsidiaries is presently a party to any transaction with
the Borrower, any Guarantor or any of their respective Subsidiaries (other than
for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, partner, director or such employee
or, to the knowledge of the Borrower, any corporation, partnership, trust or
other entity in which any officer, partner, director, or any such employee or
natural Person related to such officer, partner, director or employee or other
Person in which such officer, partner, director or employee has a direct or
indirect beneficial interest has a substantial interest or is an officer,
director, trustee or partner.
(S)6.16. Employee Benefit Plans; Multiemployer Plans; Guaranteed Pension
---------------------------------------------------------------
Plans. Except as disclosed in the SEC Filings, none of the Borrower, the
-----
Guarantors nor any ERISA Affiliate maintains or contributes to any Employee
Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan.
(S)6.17. Regulations U and X. No portion of any Loan is to be used, and
-------------------
no portion of any Letter of Credit is to be obtained, for the purpose of
purchasing or carrying any "margin security" or "margin stock" as such terms are
used in Regulations U and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R. Parts 221 and 224.
(S)6.18. Environmental Compliance. The Borrower has caused Phase I and
------------------------
other environmental assessments to be conducted and/or taken other steps to
investigate the past and present environmental condition and usage of the Real
Estate Assets. Based upon such assessments and/or investigation, to the
Borrower's knowledge, the Borrower makes the following representations and
warranties:
(a) None of the Borrower, its Subsidiaries, any Guarantor or any
operator of the Real Estate Assets or any portion thereof, or any operations
thereon is in violation, or alleged violation, of any judgment, decree, order,
law, license, rule or regulation pertaining to environmental matters, including
without limitation, those arising under the Resource Conservation and Recovery
Act ("RCRA"), the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 ("▇▇▇▇"), the Federal Clean Water Act, the Federal
Clean Air Act, the Toxic Substances Control Act, or any state or local statute,
regulation, ordinance, order or decree relating to health, safety or the
(61)
environment (hereinafter "Environmental Laws"), which violation or alleged
violation has, or its remediation would have, by itself or when aggregated with
all such other violations or alleged violations, a material adverse effect on
the business, assets or financial condition of the Borrower and its
Subsidiaries, taken as a whole, or constitutes a Disqualifying Environmental
Event with respect to any Unencumbered Asset.
(b) None of the Borrower, any Guarantor or any of their
respective Subsidiaries has received notice from any third party, including,
without limitation, any federal, state or local governmental authority, (i) that
it has been identified by the United States Environmental Protection Agency
("EPA) as a potentially responsible party under CERCLA with respect to a site
listed on the National Priorities List, 40 C.F.R. Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ (1986),
(ii) that any hazardous waste, as defined by 42 U.S.C. (S) 9601(5), any
hazardous substances as defined by 42 U.S.C. (S) 9601(14), any pollutant or
contaminant as defined by 42 U.S.C. (S)9601(33) or any toxic substances, oil or
hazardous materials or other chemicals or substances regulated by any
Environmental Laws ("Hazardous Substances") which it has generated, transported
or disposed of have been found at any site at which a federal, state or local
agency or other third party has conducted or has ordered that the Borrower, any
Guarantor or any of their respective Subsidiaries conduct a remedial
investigation, removal or other response action pursuant to any Environmental
Law, or (iii) that it is or shall be a named party to any claim, action, cause
of action, complaint, or legal or administrative proceeding (in each case,
contingent or otherwise) arising out of any third party's incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection with the
release of Hazardous Substances; which event described in any such notice would
have a material adverse effect on the business, assets or financial condition of
the Borrower and its Subsidiaries, taken as a whole, or constitutes a
Disqualifying Environmental Event with respect to any Unencumbered Asset.
(c) (i) No portion of the Real Estate Assets has been used for
the handling, processing, storage or disposal of Hazardous Substances except in
accordance with applicable Environmental Laws; and no underground tank or other
underground storage receptacle for Hazardous Substances is located on any
portion of any Real Estate Assets except in accordance with applicable
Environmental Laws, (ii) in the course of any activities conducted by the
Borrower, the Guarantors, their respective Subsidiaries or the operators of
their respective properties, or any ground or space tenants on any Real Estate
Asset, no Hazardous Substances have been generated or are being used on such
Real Estate Asset except in accordance with applicable Environmental Laws, (iii)
there has been no present or past releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, disposing or
dumping (a "Release") or threatened Release of Hazardous Substances on, upon,
into or from
(62)
the Real Estate Assets, (iv) there have been no Releases on, upon, from or into
any real property in the vicinity of any of the Real Estate Assets which,
through soil or groundwater contamination, may have come to be located on such
Real Estate Asset, and (v) any Hazardous Substances that have been generated on
any of the Real Estate Assets during ownership thereof by the Borrower or a
Guarantor or any member of the Beacon Group have been transported off-site only
by carriers having an identification number issued by the EPA, treated or
disposed of only by treatment or disposal facilities maintaining valid permits
as required under applicable Environmental Laws, which transporters and
facilities have been and are, to the best of the Borrower's knowledge, operating
in compliance with such permits and applicable Environmental Laws; any of which
events described in clauses (i) through (v) above would have a material adverse
effect on the business, assets or financial condition of the Borrower and its
Subsidiaries, taken as a whole, or constitutes a Disqualifying Environmental
Event with respect to any Unencumbered Asset. Notwithstanding that the
representations contained herein are limited to the knowledge of the Borrower,
any such limitation shall not affect the covenants specified in 7.11 or
elsewhere in this Agreement.
(d) None of the Borrower, any Guarantor or any of the Real
Estate Assets is subject to any applicable Environmental Law requiring the
performance of Hazardous Substances site assessments, or the removal or
remediation of Hazardous Substances, or the giving of notice to any governmental
agency or the recording or delivery to other Persons of an environmental
disclosure document or statement, by virtue of the transactions set forth herein
and contemplated hereby, or as a condition to the effectiveness of any other
transactions contemplated hereby.
(S)6.19. Subsidiaries. Schedule 6.19 sets forth all of the respective
------------ -------------
Subsidiaries of the Borrower and BPC, and Schedule 6.19 will be updated to
-------------
reflect any subsequent Guarantor and its Subsidiaries, if any.
(S)6.20. Loan Documents. All of the representations and warranties of the
--------------
Borrower and the Guarantors made in this Agreement and in the other Loan
Documents or any document or instrument delivered to the Agent or the Banks
pursuant to or in connection with any of such Loan Documents are true and
correct in all material respects and do not include any untrue statement of a
material fact or omit to state a material fact required to be stated or
necessary to make such representations and warranties not materially misleading.
(S)6.21. REIT Status. BPC has not taken any action that would prevent it
-----------
from maintaining its qualification as a REIT for its tax year ended December 31,
1996 or from maintaining such qualification at all times during the term of the
Loans.
(63)
(S)6.22. Subsequent Guarantors. The foregoing representations and
---------------------
warranties in (S)6.3 through (S)6.20, as the same are true, correct and
applicable to Guarantors existing on the Closing Date, shall be true, correct
and applicable to each subsequent Guarantor.
(S)7. AFFIRMATIVE COVENANTS OF THE BORROWER AND THE GUARANTORS. The
--------------------------------------------------------
Borrower for itself and on behalf of each of the Guarantors (if and to the
extent expressly included in Subsections contained in this Section) covenants
and agrees that, so long as any Loan, Letter of Credit or Note is outstanding or
the Banks have any obligation to make any Loans or any Bank has any obligation
to issue, extend or renew any Letters of Credit:
(S)7.1. Punctual Payment. The Borrower will duly and punctually pay or
----------------
cause to be paid the principal and interest on the Loans and all interest, fees,
charges and other amounts provided for in this Agreement and the other Loan
Documents, all in accordance with the terms of this Agreement and the Notes, and
the other Loan Documents.
(S)7.2. Maintenance of Office. Each of the Borrower and the Guarantors
---------------------
will maintain its chief executive office in Boston, Massachusetts, or at such
other place in the United States of America as each of them shall designate upon
written notice to the Agent to be delivered within five (5) days of such
change, where notices, presentations and demands to or upon the Borrower and the
Guarantors, as the case may be, in respect of the Loan Documents may be given or
made.
(S)7.3. Records and Accounts. Each of the Borrower and the Guarantors
--------------------
will (a) keep, and cause each of its Subsidiaries to keep, true and accurate
records and books of account in which full, true and correct entries will be
made in accordance with GAAP and (b) maintain adequate accounts and reserves for
all taxes (including income taxes), contingencies, depreciation and amortization
of its properties and the properties of its Subsidiaries; all of such reserves
may be unfunded.
(S)7.4. Financial Statements, Certificates and Information. The Borrower
--------------------------------------------------
will deliver and cause BPC to deliver to the Agent (with copies for each Bank):
(a) as soon as practicable, but in any event not later than one
hundred (100) days after the end of each of its fiscal years:
(i) in the case of the Borrower, the audited
consolidated balance sheet of the Borrower and its
subsidiaries at the end of such year, and the related
audited
(64)
consolidated statements of operations, owner's equity (deficit)
and cash flows for the year then ended, in each case with
supplemental consolidating schedules provided by the Borrower if
requested by the Agent; and
(ii) in the case of BPC, the audited consolidated balance
sheet of BPC and its subsidiaries (including, without limitation,
the Borrower and its subsidiaries) at the end of such year, and
the related audited consolidated statements of operations,
owner's equity (deficit) and cash flows for the year then ended,
in each case with supplemental consolidating schedules provided
by BPC if requested by the Agent;
each setting forth in comparative form the figures for the previous fiscal year
and all such statements to be in reasonable detail, prepared in accordance with
GAAP, and, in each case, accompanied by an auditor's report prepared without
qualification by the Accountants, together with a written statement from such
Accountants to the effect that they have read a copy of this Agreement, and
that, in making the examination necessary to said certification, they have
obtained no knowledge of any default, Default, Event of Default or of any facts
or circumstances that would cause BPC not to continue to qualify as a REIT for
federal income tax purposes, or, if such accountants shall have obtained
knowledge of any then existing default, Default, Event of Default or such facts
or circumstances, they shall make disclosure thereof in such statement;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of its fiscal quarters:
(i) in the case of the Borrower, copies of the unaudited
consolidated balance sheet of the Borrower and its subsidiaries
as at the end of such quarter, and the related unaudited
consolidated statements of operations, owner's equity (deficit)
and cash flows for the portion of the Borrower's fiscal year then
elapsed, with supplemental consolidating schedules provided by
the Borrower if requested by the Agent; and
(ii) in the case of BPC, copies of the unaudited
consolidated balance sheet of BPC and its subsidiaries
(including, without limitation, the Borrower and its
subsidiaries) as at the end of such quarter, and the related
unaudited consolidated statements of operations, owner's
(65)
equity (deficit) and cash flows for the portion of such
Guarantor's fiscal year then elapsed;
all in reasonable detail and prepared in accordance with GAAP, together with a
certification by the principal financial officer of the Borrower or BPC, as
applicable, that the information contained in such financial statements fairly
presents the financial position of the Borrower or BPC (as the case may be) and
its subsidiaries on the date thereof (subject to year-end adjustments none of
which shall be materially adverse);
(c) as soon as practicable, but in any event not later than one
hundred (100) days after the end of each of its fiscal years, (i) audited
statements of Net Operating Income and outstanding Indebtedness as at the end of
such fiscal year and for the fiscal year then ended in respect of each Real
Estate Asset (including each Unencumbered Asset), each prepared in accordance
with GAAP (but without related financial statement footnote disclosures included
in the Borrower's or BPC's financial statements) consistent with the definitions
of Net Operating Income and outstanding Indebtedness used in this Agreement and
accompanied by an auditor's report prepared without qualification by the
Accountants and (ii) a summary rent roll in respect of each Unencumbered Asset,
certified by the chief financial officer of the Borrower as true and correct;
(d) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the fiscal quarters of the
Borrower, (i) copies of the unaudited statements of Net Operating Income and
outstanding Indebtedness as at the end of such quarter and for the portion of
the fiscal year then elapsed in respect of each Real Estate Asset (including
each Unencumbered Asset), each prepared in accordance with GAAP (but without
related financial statement footnote disclosures included in the Borrower's or
BPC's financial statements) consistent with the definitions of Net Operating
Income and outstanding Indebtedness used in this Agreement and certified by the
chief financial officer of the Borrower to present fairly the Net Operating
Income and outstanding Indebtedness in respect of each such Real Estate Asset
and (ii) an occupancy analysis in respect of each Real Estate Asset (including
each Unencumbered Asset) certified by the chief financial officer of the
Borrower to be true and complete;
(e) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement in the form of Exhibit
-------
D hereto signed by the chief financial officer of the Borrower or BPC, as
-
applicable, and (if applicable) reconciliations to reflect changes in GAAP since
the applicable Financial Statement Date; and, in the case of the Borrower,
setting
(66)
forth in reasonable detail computations evidencing compliance with the covenants
contained in (S)(S)9.1 through 9.7;
(f) promptly as they become available, a copy of each report
(including any so-called management letters) submitted to the Borrower, BPC, or
any other Guarantor or any of their respective subsidiaries by the Accountants
in connection with each annual audit of the books of the Borrower, BPC, or any
other Guarantor or such subsidiary by such Accountants or in connection with any
interim audit thereof pertaining to any phase of the business of the Borrower,
BPC or any other Guarantor or any such subsidiary;
(g) contemporaneously with the filing or mailing thereof, copies
of all material of a financial nature sent to the holders of any Indebtedness of
the Borrower (other than the Loans) for borrowed money, to the extent that the
information or disclosure contained in such material refers to or could
reasonably be expected to have a material adverse effect on the business,
assets, financial condition or prospects, or operations of the Borrower;
(h) contemporaneously with the filing or mailing thereof, copies
of all material of a financial nature filed with the SEC or sent to the
stockholders of BPC;
(i) as soon as practicable, but in any event not later than one
hundred (100) days after the end of each fiscal year of BPC, copies of the Form
10-K statement filed by BPC with the SEC for such fiscal year, and as soon as
practicable, but in any event not later than fifty (50) days after the end of
each fiscal quarter of BPC, copies of the Form 10-Q statement filed by BPC with
the SEC for such fiscal quarter, provided that, in either case, if the SEC has
--------
granted an extension for the filing of such statements, BPC shall deliver such
statements to the Agent within ten (10) days after the filing thereof with the
SEC;
(j) from time to time such other financial data and information
about the Borrower, BPC, the other Guarantors, their respective Subsidiaries,
the Real Estate Assets and the Partially-Owned Real Estate Holding Entities as
the Agent or any Bank may reasonably request, including without limitation
complete rent rolls, existing environmental reports, and insurance certificates
with respect to the Real Estate Assets (including the Unencumbered Assets); and
(k) in the case of the Borrower, BPC, and each other Guarantor,
as soon as practicable, but in any event not later than ninety (90) days after
the end of each of their respective fiscal years, pro forma projections for the
--- -----
next three fiscal years.
(67)
(S)7.5. Notices.
-------
(a) Defaults. The Borrower will, and will cause each Guarantor,
--------
as applicable, to, promptly notify the Agent in writing (with copies for each
Bank) of the occurrence of any default, Default or Event of Default of which (i)
the Borrower or such Guarantor has knowledge, and (ii) the Agent has not
previously given notice. If any Person shall give any notice or take any other
action in respect of (x) a claimed default (whether or not constituting an Event
of Default) under this Agreement or (y) a claimed failure by the Borrower, any
Guarantor or any of their respective Subsidiaries, as applicable, to comply with
any term, condition or provision of or under any note, evidence of Indebtedness,
indenture or other obligation aggregating in excess of $1,000,000 to which or
with respect to which any of them is a party or obligor, whether as principal or
surety, and such failure to comply would permit the holder of such note or
obligation or other evidence of Indebtedness to accelerate the maturity thereof,
which acceleration would have a material adverse effect on the Borrower or its
Subsidiaries, or BPC or its Subsidiaries, as the case may be, the Borrower, BPC
or such Guarantor, as the case may be, shall forthwith give written notice
thereof to the Agent and each of the Banks, describing the notice or action and
the nature of the claimed failure to comply.
(b) Environmental Events. The Borrower will, and will cause
--------------------
each Guarantor to, promptly give notice in writing to the Agent (with copies for
each Bank) (i) upon Borrower's or such Guarantor's obtaining knowledge of any
material violation (as determined by the Borrower or such Guarantor in the
exercise of its reasonable discretion) of any Environmental Law regarding any
Real Estate Asset or Borrower's or such Guarantor's operations, (ii) upon
Borrower's or such Guarantor's obtaining knowledge of any known Release of any
Hazardous Substance at, from, or into any Real Estate Asset which it reports in
writing or is reportable by it in writing to any governmental authority and
which is material in amount or nature or which could materially affect the value
of such Real Estate Asset, (iii) upon Borrower's or such Guarantor's receipt of
any notice of material violation of any Environmental Laws or of any material
Release of Hazardous Substances in violation of any Environmental Laws or any
matter that may be a Disqualifying Environmental Event, including a notice or
claim of liability or potential responsibility from any third party (including
without limitation any federal, state or local governmental officials) and
including notice of any formal inquiry, proceeding, demand, investigation or
other action with regard to (A) Borrower's or such Guarantor's or any other
Person's operation of any Real Estate Asset, (B) contamination on, from or into
any Real Estate Asset, or (C) investigation or remediation of off-site locations
at which Borrower or such Guarantor or any of its predecessors are alleged to
have directly or indirectly disposed of Hazardous Substances, or (iv)
(68)
upon Borrower's or such Guarantor's obtaining knowledge that any expense or loss
has been incurred by such governmental authority in connection with the
assessment, containment, removal or remediation of any Hazardous Substances with
respect to which Borrower or such Guarantor or any Partially-Owned Real Estate
Entity may be liable or for which a lien may be imposed on any Real Estate
Asset; any of which events described in clauses (i) through (iv) above would
have a material adverse effect on the business, assets or financial condition of
the Borrower and its Subsidiaries, taken as a whole, or constitutes a
Disqualifying Environmental Event with respect to any Unencumbered Asset.
(c) Notification of Claims against Unencumbered Assets. The
--------------------------------------------------
Borrower will, and will cause each Subsidiary Guarantor to, promptly upon
becoming aware thereof, notify the Agent in writing (with copies for each Bank)
of any setoff, claims, withholdings or other defenses to which any of the
Unencumbered Assets are subject, which (i) would have a material adverse effect
on (x) the business, assets or financial condition of the Borrower and its
Subsidiaries, taken as a whole, or (y) the value of such Unencumbered Asset, or
(ii) with respect to such Unencumbered Asset, constitute a Disqualifying
Environmental Event or a Lien subject to the bonding or insurance requirement of
(S)8.2(viii).
(d) Notice of Litigation and Judgments. The Borrower will, and
----------------------------------
will cause each Guarantor to, and the Borrower will cause each of the wholly-
owned Subsidiaries to, give notice to the Agent in writing (with copies for each
Bank) within fifteen (15) days of becoming aware of any litigation or
proceedings threatened in writing or any pending litigation and proceedings an
adverse determination in which could materially affect the Borrower, any
Guarantor or any of their respective Subsidiaries or any Unencumbered Asset or
to which the Borrower, any Guarantor or any of their respective Subsidiaries is
or is to become a party involving an uninsured claim against the Borrower, any
Guarantor or any of their respective Subsidiaries that could reasonably be
expected to have a materially adverse effect on the Borrower or such Guarantor
or their respective properties, business, assets, financial condition or
prospects or on the value or operation of the Unencumbered Assets and stating
the nature and status of such litigation or proceedings. The Borrower will, and
will cause each of the Operating Subsidiaries, the Guarantors and the wholly-
owned Subsidiaries to, give notice to the Agent and each of the Banks, in
writing, in form and detail reasonably satisfactory to the Agent and each of the
Banks, within ten (10) days of any judgment not covered by insurance, final or
otherwise, against the Borrower, any Guarantor or any of the wholly-owned
Subsidiaries in an amount in excess of $1,000,000.
(e) Acquisition of Real Estate Assets. The Borrower shall notify
---------------------------------
the Agent in writing (with copies for each Bank) within seven (7) days of the
(69)
acquisition of any Real Estate Asset by the Borrower, any Guarantor, any of
their respective Subsidiaries or any Partially-Owned Real Estate Holding Entity
(whether or not such acquisition was made with proceeds of the Loans), which
notice shall include, with respect to such Real Estate Asset, its address, a
brief description and recent photograph, a rent roll summary, a proforma and
historic (if available) income statement and a summary of the key business terms
of such acquisition.
(S)7.6. Existence of Borrower and Subsidiary Guarantors; Maintenance of
---------------------------------------------------------------
Properties. The Borrower for itself and for each Subsidiary Guarantor insofar
----------
as any such statements relate to such Subsidiary Guarantor will do or cause to
be done all things necessary to, and shall, preserve and keep in full force and
effect its existence as a Delaware limited partnership or its existence as
another legally constituted entity, and will do or cause to be done all things
necessary to preserve and keep in full force all of its rights and franchises
and those of its Subsidiaries. The Borrower (a) will cause all necessary
repairs, renewals, replacements, betterments and improvements to be made to all
Real Estate Assets owned or controlled by it or any Subsidiary Guarantor, all as
in the judgment of the Borrower or such Subsidiary Guarantor may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times, subject to the terms of the applicable
Leases and partnership agreements or other entity charter documents, (b) will
cause, and will cause the Subsidiary Guarantors to cause, all of its (or their)
other properties and those of its Subsidiaries (to the extent controlled by the
Borrower) used or useful in the conduct of its business or the business of its
Subsidiaries to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment, and (c) will, and will cause
each of its Subsidiaries and each Subsidiary Guarantor to, continue to engage
primarily in the businesses now conducted by it and in related businesses,
consistent with (S)7.27.
(S)7.7. Existence of BPC; Maintenance of REIT Status of BPC; Maintenance
----------------------------------------------------------------
of Properties. The Borrower will cause BPC to do or cause to be done all things
-------------
necessary to preserve and keep in full force and effect BPC's existence as a
Maryland corporation. The Borrower will cause BPC at all times to maintain its
status as a REIT and not to take any action which could lead to its
disqualification as a REIT. The Borrower will cause BPC not to engage in any
business other than the business of acting as a REIT and serving as the general
partner and limited partner of the Borrower, as a member, partner or stockholder
of other Persons and as a Guarantor, and shall cause BPC to conduct all or
substantially all of its business operations through the Borrower or through
subsidiary partnerships or other entities in which the Borrower owns at least
99% of the economic interests. The Borrower will cause BPC to do or cause to be
done all things necessary to preserve and keep in full force all of its
(70)
rights and franchises and those of its Subsidiaries. The Borrower will cause
BPC (a) to cause all of its properties and those of its Subsidiaries used or
useful in the conduct of its business or the business of its Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment, (b) to cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of BPC may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times, and (c) to
cause each of its Subsidiaries to continue to engage primarily in the businesses
now conducted by it and in related businesses, consistent with (S)7.27.
(S)7.8. Insurance. The Borrower will, and will cause each Guarantor to,
---------
maintain with respect to its properties, and will cause each of its Subsidiaries
to maintain with financially sound and reputable insurers, insurance with
respect to such properties and its business against such casualties and
contingencies as shall be in accordance with the general practices of businesses
engaged in similar activities in similar geographic areas and in amounts,
containing such terms, in such forms and for such periods as may be reasonable
and prudent.
(S)7.9. Taxes. The Borrower will, and will cause each Guarantor to, pay
-----
or cause to be paid real estate taxes, other taxes, assessments and other
governmental charges against the Real Estate Assets (other than those owned or
ground-leased by Partially-Owned Real Estate Holding Entities) before the same
become delinquent and will duly pay and discharge, or cause to be paid and
discharged, before the same shall become overdue, all taxes, assessments and
other governmental charges imposed upon its sales and activities, or any part
thereof, or upon the income or profits therefrom, as well as all claims for
labor, materials, or supplies that if unpaid might by law become a lien or
charge upon any of the Real Estate Assets (other than those owned or ground-
leased by Partially-Owned Real Estate Holding Entities); provided that any such
--------
tax, assessment, charge, levy or claim need not be paid if the validity or
amount thereof shall currently be contested in good faith by appropriate
proceedings and if the Borrower or such Guarantor shall have set aside on its
books adequate reserves with respect thereto; and provided further that the
-------- -------
Borrower or such Guarantor will pay all such taxes, assessments, charges, levies
or claims forthwith upon the commencement of proceedings to foreclose any lien
that may have attached as security therefor. Promptly upon request by the Agent
if required for bank regulatory compliance purposes or similar bank purposes,
the Borrower will provide evidence of the payment of real estate taxes, other
taxes, assessments and other governmental charges against the Real Estate Assets
(other than those owned or ground-leased by Partially-Owned Real Estate Holding
Entities) in the form of receipted tax bills or other form reasonably acceptable
to the Agent.
(71)
(S)7.10. Inspection of Properties and Books. The Borrower will, and will
----------------------------------
cause each Guarantor to, permit the Agent or any of the Banks' other designated
representatives upon no less than 24 hours notice (which notice may be given
orally or in writing), to visit and inspect any of the properties of the
Borrower, any Guarantor or any of their respective Subsidiaries to examine the
books of account of the Borrower, such Guarantor and their respective
Subsidiaries (and to make copies thereof and extracts therefrom) and to discuss
the affairs, finances and accounts of the Borrower, such Guarantor and their
respective Subsidiaries with, and to be advised as to the same by, its officers,
all at such reasonable times and intervals as the Agent may reasonably request;
provided that, so long as no Event of Default has occurred and is continuing,
--------
the Borrower shall only be responsible for the costs and expenses incurred by
the Agent in connection with such inspections. The Agent and each Bank agrees
to keep any non-public information delivered or made available by the Borrower
to it confidential from anyone other than persons employed or retained by the
Agent or such Bank who are or are expected to become engaged in evaluating,
approving, structuring or administering the Loans; provided that nothing herein
--------
shall prevent the Agent or any Bank from disclosing such information (i) to any
other Bank, (ii) to any other person if reasonably incidental to the
administration of the Loans, (iii) upon the order of any court or administrative
agency, (iv) upon the request or demand of any regulatory agency or authority,
(v) which has been publicly disclosed other than as a result of a disclosure by
the Agent or any Bank which is not permitted by this Agreement, (vi) in
connection with any litigation to which the Agent, any Bank, or their respective
Affiliates may be a party, (vii) to the extent reasonably required in connection
with the exercise of any remedy hereunder, (viii) to the Agent's or such Bank's
Affiliates, legal counsel and independent auditors, and (ix) to any actual or
proposed participant or Eligible Assignee of all or part of its rights
hereunder.
(S)7.11. Compliance with Laws, Contracts, Licenses, and Permits. The
------------------------------------------------------
Borrower will, and will cause each Guarantor to, comply with, and will cause
each of their respective Subsidiaries to comply with (a) all applicable laws and
regulations now or hereafter in effect wherever its business is conducted,
including, without limitation, all Environmental Laws and all applicable federal
and state securities laws, (b) the provisions of its partnership agreement or
corporate charter and other charter documents and by-laws, as applicable, (c)
all material agreements and instruments to which it is a party or by which it or
any of its properties may be bound (including the Real Estate Assets and the
Leases) and (d) all applicable decrees, orders, and judgments. If at any time
while any Loan or Revolving Credit Note is outstanding or the Banks have any
obligation to make Loans hereunder, any Permit shall become necessary or
required in order that the Borrower may fulfill any of its obligations
hereunder, the Borrower and the Guarantors will immediately take or cause to be
taken all
(72)
reasonable steps within the power of the Borrower or the Guarantors, as
applicable, to obtain such Permit and furnish the Agent with evidence thereof.
(S)7.12. Use of Proceeds. Subject at all times to the other provisions
---------------
this Agreement, the Borrower will use the proceeds of the Loans solely for
working capital and general corporate purposes (including the repayment of
existing Indebtedness).
(S)7.13. Acquisition of Unencumbered Assets. The Borrower shall promptly
----------------------------------
deliver to the Agent a copy of the Title Policy for each Unencumbered Asset
which is designated as such after the Closing Date.
(S)7.14. Additional Guarantors; Solvency of Guarantors.
---------------------------------------------
(a) If, after the Closing Date, the Borrower wishes to designate
as an Unencumbered Asset a Real Estate Asset that otherwise qualifies as an
Unencumbered Asset but is owned or ground-leased by a Person other than the
Borrower, 1333 or Burlington, the Borrower shall cause such Person (which Person
must be a wholly-owned Subsidiary of the Borrower) to execute and deliver a
Guaranty to the Agent and the Banks in substantially the form of the Burlington
Guaranty or the 1333 Guaranty, as applicable, prior to such Real Estate Asset
becoming an Unencumbered Asset hereunder. Such Guaranty shall evidence
consideration and equivalent value. The Borrower will not permit any Guarantor
that owns or ground leases any Unencumbered Assets to have any Subsidiaries
unless such Subsidiary's business, obligations and undertakings are exclusively
related to the business of such Guarantor.
(b) The Borrower shall cause each of the Guarantors to remain
solvent and shall provide each of the Guarantors with such funds and assets as
such Guarantor shall require in the operation of its business, all in
consideration of such Guarantor's execution and delivery of its Guaranty.
(S)7.15. Further Assurances. The Borrower will, and will cause each
------------------
Guarantor to, cooperate with, and to cause each of the wholly-owned Subsidiaries
to cooperate with, the Agent and the Banks and execute such further instruments
and documents as the Banks or the Agent shall reasonably request to carry out to
their satisfaction the transactions contemplated by this Agreement and the other
Loan Documents.
(S)7.16. Interest Rate Protection. The Borrower shall maintain in effect
------------------------
its existing interest rate protection arrangements (a) in respect of a notional
principal amount of not less than $135,000,000 effective from the Closing Date
through May 26, 1997 and (b) in respect of a notional principal amount of not
less than $137,500,000 for the period from May 27, 1997 until May 25, 1999 or
(73)
such earlier date upon which the Loans are terminated. The Borrower shall
maintain such arrangements in full force and effect as provided therein, and
shall not, without Unanimous Bank Approval, modify, terminate, or transfer such
arrangements during such period. The Borrower may, at its option, enter into
additional interest rate protection arrangements permitted pursuant to (S)8.3.
(S)7.17. Environmental Indemnification. The Borrower covenants and agrees
-----------------------------
that it will indemnify and hold the Agent and each Bank, and each of their
respective Affiliates, harmless from and against any and all claims, expense,
damage, loss or liability incurred by the Agent or any Bank (including all
reasonable costs of legal representation incurred by the Agent or any Bank, but
excluding, as applicable, for the Agent or a Bank any claim, expense, damage,
loss or liability as a result of the gross negligence or willful misconduct of
the Agent or such Bank or any of their respective Affiliates) relating to (a)
any Release or threatened Release of Hazardous Substances on any Real Estate
Asset; (b) any violation of any Environmental Laws with respect to conditions at
any Real Estate Asset or the operations conducted thereon; (c) the investigation
or remediation of off-site locations at which the Borrower, any Guarantor or any
of their respective Subsidiaries or their predecessors are alleged to have
directly or indirectly disposed of Hazardous Substances; or (d) any action,
suit, proceeding or investigation brought or threatened with respect to any
Hazardous Substances relating to Real Estate Assets (including, but not limited
to, claims with respect to wrongful death, personal injury or damage to
property). It is expressly acknowledged by the Borrower that this covenant of
indemnification shall survive the payment of the Loans and shall inure to the
benefit of the Agent and the Banks and their respective Affiliates, their
respective successors, and their respective assigns under the Loan Documents
permitted under this Agreement.
(S)7.18. Response Actions. The Borrower covenants and agrees that if any
----------------
Release or disposal of Hazardous Substances shall occur or shall have occurred
on any wholly-owned Real Estate Asset, the Borrower will cause the prompt
containment and removal of such Hazardous Substances and remediation of such
wholly-owned Real Estate Asset as necessary to comply with all Environmental
Laws or to preserve the value of such wholly-owned Real Estate Asset.
(S)7.19. Environmental Assessments. If the Agent in its good faith
-------------------------
judgment, after discussion with the Borrower and review of any environmental
reports provided by the Borrower, has reasonable grounds to believe that a
Disqualifying Environmental Event has occurred with respect to any Unencumbered
Asset, after reasonable notice by the Agent, whether or not a default, Default
or an Event of Default shall have occurred, the Agent may, from
(74)
time to time, for the purpose of assessing and determining whether a
Disqualifying Environmental Event has in fact occurred, cause the Borrower to
obtain one or more environmental assessments or audits of such Unencumbered
Asset prepared by a hydrogeologist, an independent engineer or other qualified
consultant or expert approved by the Agent to evaluate or confirm (i) whether
any Hazardous Substances are present in the soil or water at such Unencumbered
Asset and (ii) whether the use and operation of such Unencumbered Asset complies
with all Environmental Laws. Environmental assessments may include without
limitation detailed visual inspections of such Unencumbered Asset including,
without limitation, any and all storage areas, storage tanks, drains, dry ▇▇▇▇▇
and leaching areas, and, if and to the extent reasonable, appropriate and in
compliance with Environmental Laws, the taking of soil samples, surface water
samples and ground water samples, as well as such other investigations or
analyses as the Agent deems appropriate. All such environmental assessments
shall be at the sole cost and expense of the Borrower; provided, however, the
Agent may not require environmental assessments at the Borrower's expense, with
respect to any Unencumbered Asset, more frequently than upon the occurrence of a
Release on any Unencumbered Asset.
(S)7.20. Employee Benefit Plans.
----------------------
(a) Notice. The Borrower will, and will cause each Guarantor
------
to, obtain the consent of the Majority Banks prior to the establishment of any
Employee Benefit Plan or Guaranteed Pension Plan by any of them or any of their
respective ERISA Affiliates other than those disclosed in the SEC Filings.
(b) In General. Each Employee Benefit Plan maintained by the
----------
Borrower, any Guarantor or any of their respective ERISA Affiliates will be
operated in compliance in all material respects with the provisions of ERISA
and, to the extent applicable, the Code, including but not limited to the
provisions thereunder respecting prohibited transactions.
(c) Terminability of Welfare Plans. With respect to each
------------------------------
Employee Benefit Plan maintained by the Borrower, any Guarantor or any of their
respective ERISA Affiliates which is an employee welfare benefit plan within the
meaning of (S)3(1) or (S)3(2)(B) of ERISA, the Borrower, such Guarantor, or any
of their respective ERISA Affiliates, as the case may be, has the right to
terminate each such plan at any time (or at any time subsequent to the
expiration of any applicable bargaining agreement) without liability other than
liability to pay claims incurred prior to the date of termination.
(75)
(d) Multiemployer Plans. Without the consent of the Majority
-------------------
Banks, the Borrower will not, and will not permit any Guarantor to, enter into,
maintain or contribute to, any Multiemployer Plan.
(e) Unfunded or Underfunded Liabilities. The Borrower will not,
-----------------------------------
and will not permit any Guarantor to, at any time, have accruing or accrued
unfunded or underfunded liabilities with respect to any Employee Benefit Plan,
Guaranteed Pension Plan or Multiemployer Plan, or permit any condition to exist
under any Multiemployer Plan that would create a withdrawal liability.
(S)7.21. [Intentionally Omitted].
---------------------
(S)7.22. No Amendments to Certain Documents. The Borrower will not, and
----------------------------------
will not permit any Guarantor to, at any time cause or permit its certificate of
limited partnership, agreement of limited partnership (including without
limitation the Agreement of Limited Partnership of the Borrower, the 1333
Agreement of Limited Partnership or the Burlington Agreement of Limited
Partnership), articles of incorporation, by-laws or other charter documents, as
the case may be, to be modified, amended or supplemented in any respect
whatever, without (in each case) the express prior written consent or approval
of the Agent, if such changes would affect BPC's REIT status or otherwise
materially adversely affect the rights of the Agent and the Banks hereunder or
under any other Loan Document.
(S)7.23. [Intentionally Omitted]
---------------------
(S)7.24. [Intentionally Omitted]
---------------------
(S)7.25. Management. Except by reason of death or incapacity, at least
----------
three (3) of the Key Management Individuals (as hereinafter defined) shall
remain active in the executive and/or operational management, in their current
(or comparable) positions, of BPC; provided, however, if at least three (3) of
the Key Management Individuals are not so active in such positions (except by
reason of death or incapacity as aforesaid), then within ninety (90) days of the
occurrence of such event, BPC shall propose and appoint such individual(s) of
comparable experience, reputation and otherwise reasonably acceptable to the
Majority Banks to such position(s) such that, after such appointment, such
acceptable replacement individuals, together with the Key Management Individuals
remaining so active in such positions with BPC, total at least three (3). For
purposes hereof, "Key Management Individuals" shall mean and include (a) ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇▇ and (b) for so long as at least
two (2) of the foregoing seven (7) individuals remain active in the executive
and/or operational management, in their current (or comparable)
(76)
positions, of BPC, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇.
(S)7.26. [Intentionally Omitted].
---------------------
(S)7.27. Class of Real Estate Assets. The Borrower will, and will cause
---------------------------
its Subsidiaries and each Guarantor to, comply with the following conditions
with respect to the Real Estate Assets:
(a) The aggregate Consolidated Capitalization Value plus
Eligible Real Estate Development Costs attributable to assets which are not
Class A and Class B office buildings shall not exceed 25% of Consolidated
Capitalization Value plus Eligible Real Estate Development Costs; and
(b) The aggregate Consolidated Capitalization Value plus
Eligible Real Estate Development Costs attributable to assets which are not
Class A office buildings shall not exceed 47.5% of Consolidated Capitalization
Value plus Eligible Real Estate Development Costs; provided that the failure to
--------
comply with the covenants set forth in this (S)7.27 shall not constitute a
Default or Event of Default hereunder, but the aggregate Consolidated
Capitalization Value plus Eligible Real Estate Development Costs attributable to
assets in excess of the foregoing parameters (the "Value of Nonconforming
Assets") shall be excluded from the calculation of Consolidated Market Value, as
set forth in such definition.
(S)8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER AND THE GUARANTORS.The
-------------------------------------------------------------
Borrower for itself and on behalf of the Guarantors covenants and agrees that,
so long as any Loan, Letter of Credit or Note is outstanding or any of the Banks
has any obligation to make any Loans or any Bank has any obligation to issue,
extend or renew any Letters of Credit:
(S)8.1. Restrictions on Indebtedness.
----------------------------
The Borrower and the Guarantors may, and may permit their respective
Subsidiaries to, create, incur, assume, guarantee or be or remain liable for,
contingently or otherwise, any Indebtedness other than the specific Indebtedness
which is prohibited under this (S)8.1 and with respect to which each of the
Borrower and the Guarantors will not, and will not permit any Operating
Subsidiary or wholly-owned Subsidiary to, create, incur, assume, guarantee or be
or remain liable for, contingently or otherwise, singularly or in the aggregate
as follows:
(77)
(a) Unsecured Indebtedness (excluding the Obligations) which is
incurred under a revolving credit facility with a commercial bank, trust
company, or savings and loan association;
(b) Indebtedness which would result in a Default or Event of
Default under (S)9 hereof;
(c) An aggregate amount in excess of $5,000,000 at any one time
in respect of taxes, assessments, governmental charges or levies and claims for
labor, materials and supplies (other than in respect of properties owned by
Partially-Owned Real Estate Holding Entities) for which payment therefor is
required to be made in accordance with the provisions of (S)7.9 and has not been
timely made;
(d) An aggregate amount in excess of $1,000,000 at any one time
in respect of uninsured judgments or awards, with respect to which the
applicable periods for taking appeals have expired, or with respect to which
final and unappealable judgments or awards have been rendered, and such
judgments or awards remain unpaid for more than thirty (30) days; and
(e) Current unsecured liabilities incurred in the ordinary
course of business, which (i) are overdue for more than sixty (60) days, (ii)
exceed $1,000,000 in the aggregate at any one time, and (iii) are not being
contested in good faith.
The terms and provisions of this (S)8.1 are in addition to, and not in
limitation of, the covenants set forth in (S)9 of this Agreement.
Without limiting the foregoing, but subject to the other provisions of this
Agreement (including without limitation (S)9 hereof), Indebtedness Without
Recourse to any of the Credit Parties or any of their respective assets other
than their respective interests in the Real Estate Assets that are subject to
such Indebtedness Without Recourse is not restricted.
Notwithstanding anything contained herein to the contrary, the Borrower
and the Guarantors will not, and will not permit any Operating Subsidiary or any
wholly-owned Subsidiary to, incur any Indebtedness for borrowed money which,
together with other Indebtedness for borrowed money incurred by the Borrower,
any Guarantor, any Operating Subsidiary and any wholly-owned Subsidiary since
the date of the most recent compliance certificate delivered to the Agent in
accordance with this Agreement, exceeds $5,000,000 in the aggregate unless the
Borrower shall have delivered a compliance certificate in the form of Exhibit D
---------
hereto to the Agent evidencing covenant compliance at the
(78)
time of delivery of the certificate and on a pro-forma basis after giving effect
to such proposed Indebtedness.
(S)8.2. Restrictions on Liens, Etc. None of the Borrower, any
---------------------------
Guarantor, any Operating Subsidiary and any wholly-owned Subsidiary will: (a)
create or incur or suffer to be created or incurred or to exist any lien,
mortgage, pledge, attachment or security interest of any kind upon any of their
respective properties or assets of any character (other than the Real Estate
Assets owned or ground-leased by the Partially-Owned Real Estate Entities),
whether now owned or hereafter acquired, or upon the income or profits
therefrom; (b) acquire, or agree or have an option to acquire, any property or
assets upon conditional sale or other title retention or purchase money security
agreement, device or arrangement in connection with the operation of the
Unencumbered Assets; (c) suffer to exist for a period of more than thirty (30)
days any Indebtedness or claim or demand against any of them prohibited by
(S)8.1(c) (without hereby modifying (S)8.1(c)) that, if unpaid, might by law or
upon bankruptcy or insolvency, or otherwise, be given any priority whatsoever
over its general creditors, but excluding any Indebtedness of, or any claim or
demand against, any Partially-Owned Real Estate Holding Entity that is Without
Recourse to any of the Credit Parties, or any of their respective assets other
than their respective interests in the Real Estate Asset in question; or (d)
sell, assign, pledge or otherwise transfer for security any accounts, contract
rights, general intangibles, chattel paper or instruments, with or without
recourse, relating to assets other than the assets of the Partially-Owned Real
Estate Holding Entities (the foregoing items (a) through (d) being sometimes
referred to in this (S)8.2 collectively as "Liens"), provided that the Borrower,
--------
the Guarantors and any Operating Subsidiary or wholly-owned Subsidiary may
create or incur or suffer to be created or incurred or to exist:
(i) Liens securing taxes, assessments, governmental charges or
levies or claims for labor, material and supplies, the Indebtedness with respect
to which is not prohibited by (S)8.1(c) or (S)8.2(c) above;
(ii) deposits or pledges made in connection with, or to secure
payment of, worker's compensation, unemployment insurance, old age pensions or
other social security obligations; and deposits with utility companies and other
similar deposits made in the ordinary course of business;
(iii) Liens (other than affecting the Unencumbered Assets) in
respect of judgments or awards, the Indebtedness with respect to which is not
prohibited by (S)8.1(d);
(iv) encumbrances on properties consisting of easements, rights
of way, covenants, restrictions on the use of real property and defects and
(79)
irregularities in the title thereto; landlord's or lessor's Liens under Leases
to which the Borrower, any Guarantor, any Operating Subsidiary or any wholly-
owned Subsidiary is a party or bound; purchase options granted at a price not
less than the market value of such property; and other minor Liens or
encumbrances on properties, none of which interferes materially and adversely
with the use of the property affected in the ordinary conduct of the business of
the Borrower, and which matters (x) do not individually or in the aggregate have
a material adverse effect on the business of the Borrower or (xx) do not make
title to such property unmarketable by the conveyancing standards in effect
where such property is located;
(v) any Leases;
(vi) Liens and other encumbrances or rights of others which
exist on the date of this Agreement and which do not otherwise constitute a
breach of this Agreement; provided that nothing in this clause (vi) shall be
--------
deemed or construed to permit an Unencumbered Asset to be subject to a Lien to
secure Indebtedness;
(vii) as to Real Estate Assets which are acquired after the date
of this Agreement, Liens and other encumbrances or rights of others which exist
on the date of acquisition and which do not otherwise constitute a breach of
this Agreement; provided that nothing in this clause (vii) shall be deemed or
construed to permit an Unencumbered Asset to be subject to a Lien to secure
Indebtedness;
(viii) Liens affecting the Unencumbered Assets in respect of
judgments or awards that have been in force for less than the applicable period
for taking an appeal, so long as execution is not levied thereunder or in
respect of which, at the time, a good faith appeal or proceeding for review is
being prosecuted, and in respect of which a stay of execution shall have been
obtained pending such appeal or review; provided that the Borrower shall have
obtained a bond or insurance with respect thereto to the Agent's reasonable
satisfaction;
(ix) Liens securing Indebtedness for the purchase price of
capital assets (other than Real Estate Assets but including Indebtedness in
respect of Capitalized Leases for equipment and other equipment leases) to the
extent not otherwise prohibited by (S)8.1; and
(x) other Liens (other than affecting the Unencumbered Assets)
in connection with any Indebtedness permitted under (S)8.1.
(80)
(S)8.3. Restrictions on Investments. None of the Borrower, any
---------------------------
Guarantor, any Operating Subsidiary or any wholly-owned Subsidiary will make or
permit to exist or to remain outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United
States of America that mature within two (2) years from the date of purchase;
(b) demand deposits, certificates of deposit, bankers
acceptances and time deposits of United States banks having total assets in
excess of $1,000,000,000;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated and
the ratings for which are not less than "P 1" if rated by ▇▇▇▇▇'▇, and not less
than "A 1" if rated by S&P;
(d) Investments existing on the Closing Date and listed in the
SEC Filings or in the financial statements referred to in (S)6.4 hereof, and any
other Investments hereafter made with respect to Real Estate Assets held by the
Borrower, by any wholly-owned Subsidiary or by any Partially-Owned Real Estate
Holding Entity as of the Closing Date (including, without limitation,
Investments in any such Partially-Owned Real Estate Holding Entity);
(e) So long as no Event of Default has occurred and is
continuing or would occur after giving effect thereto, Investments (i) in Real
Estate Assets, (ii) in interests in Partially-Owned Real Estate Holding
Entities, (iii) in the stock of or other beneficial interests in Persons whose
primary operations consist of the ownership, development, operation or
management of Real Estate Assets or the ownership of Indebtedness for borrowed
money secured by mortgage liens on Real Estate Assets, or (iv) consisting of the
acquisition of (A) contracts for the management of Real Estate Assets or (B)
Indebtedness for borrowed money secured by mortgage liens on Real Estate Assets,
in each case consistent with the provisions of (S)7.27 hereof;
(f) any Investments now or hereafter made in the Operating
Subsidiaries or any wholly-owned Subsidiary;
(g) Investments in respect of (1) equipment, inventory and other
tangible personal property acquired in the ordinary course of business, (2)
current trade and customer accounts receivable for services rendered in the
ordinary course of business and payable in accordance with customary trade
terms, (3) advances to employees for travel expenses, drawing accounts and
(81)
similar expenditures, (4) prepaid expenses made in the ordinary course of
business;
(h) any other Investments made in the ordinary course of
business, provided that the aggregate value of all Investments under this
--------
subsection (h) by the Borrower shall not exceed at any time $1,000,000;
(i) repurchase agreements having a term not greater than 90 days
and fully secured by obligations described in the foregoing subsection (a) with
banks described in the foregoing subsection (b) or with financial institutions
or other corporations having total assets in excess of $500,000,000;
(j) interest rate ▇▇▇▇▇▇ in connection with Indebtedness; and
(k) shares of so-called "money market funds" registered with the
SEC under the Investment Company Act of 1940 which maintain a level per-share
value, invest principally in marketable direct or guaranteed obligations of the
United States of America and agencies and instrumentalities thereof, and have
total assets in excess of $50,000,000.
(S)8.4. Merger, Consolidation and Disposition of Assets.
-----------------------------------------------
None of the Borrower, any Guarantor, any Operating Subsidiary or any
wholly-owned Subsidiary will:
(a) Become a party to any merger or consolidation, except that
so long as no Default or Event of Default has occurred and is continuing, or
would occur after giving effect thereto, the merger or consolidation of one or
more Persons with and into the Borrower, any Guarantor, any Operating Subsidiary
or any wholly-owned Subsidiary, shall be permitted if the Borrower, any
Guarantor, any Operating Subsidiary or any wholly-owned Subsidiary, as the case
may be, is the surviving entity; provided that prior to any such merger or
--------
consolidation (other than (w) the merger or consolidation of one or more
Operating Subsidiaries with and into the Borrower, (x) the merger or
consolidation of two or more Subsidiaries of the Borrower, (y) the merger or
consolidation of one or more Subsidiaries of BPC with and into BPC, or (z) the
merger or consolidation of two or more Subsidiaries of BPC), the Borrower shall
provide to the Agent (with copies for each Bank) a statement in the form of
Exhibit D hereto signed by the chief financial officer or treasurer of the
---------
Borrower and setting forth in reasonable detail computations evidencing
compliance with the covenants contained in (S)(S)9.1 through 9.7 hereof and
certifying, to the best knowledge of the signatory, that no Default or Event of
Default has occurred and is continuing, or would occur and be continuing after
(82)
giving effect to such merger or consolidation and all liabilities, fixed or
contingent, pursuant thereto;
(b) Sell, transfer or otherwise dispose of (collectively and
individually, "Sell" or a "Sale") or ▇▇▇▇▇ ▇ ▇▇▇▇ to secure Indebtedness (an
"Indebtedness Lien") on any of its now owned or hereafter acquired assets
without obtaining the prior written consent of the Majority Banks except for:
(i) the Sale of or granting of an Indebtedness Lien on any
Unencumbered Asset so long as no Default or Event of Default has then
occurred and is continuing, or would occur and be continuing after giving
effect to such Sale or Indebtedness Lien; provided, that prior to any Sale
--------
of any Unencumbered Asset or the granting of an Indebtedness Lien on any
Unencumbered Asset under this clause (i), the Borrower shall provide to the
Agent (with copies for each Bank) a statement in the form of Exhibit D
---------
hereto signed by the chief financial officer or treasurer of the Borrower
and setting forth in reasonable detail computations evidencing compliance
with the covenants contained in (S)9 hereof and certifying, to the best
knowledge of the signatory, that no Default or Event of Default has
occurred and is continuing, or would occur and be continuing after giving
effect to such proposed Sale or Indebtedness Lien and all liabilities,
fixed or contingent, pursuant thereto;
(ii) the Sale of or the granting of an Indebtedness Lien on any
of its now owned or hereafter acquired assets (other than any Unencumbered
Asset) so long as no Event of Default has then occurred and is continuing
and no Default or Event of Default would occur and be continuing after
giving effect to such Sale or Indebtedness Lien and all other Sales (to be)
made and Indebtedness Liens (to be) granted under this clause (ii);
provided, that (x) if such Sale or Indebtedness Lien is made or granted
--------
under this clause (ii) while a Default is continuing, such Sale or
Indebtedness Lien (together with other Sales and Indebtedness Liens under
this clause (ii)) cures (or would cure) such Default before it becomes an
Event of Default, (y) if multiple Sales or grantings of Indebtedness Liens
are undertaken pursuant to the foregoing subclause (x) to cure a Default,
the Borrower shall apply the net proceeds of each such Sale or Indebtedness
Lien remaining after application to such cure to the repayment of the
Revolving Credit Loans until such Default has been fully cured, and (z)
prior to the Sale of any asset or the granting of an Indebtedness Lien on
any asset under this clause (ii), the Borrower shall provide to the Agent
(with copies for each Bank) a statement in the form of Exhibit D hereto
---------
signed by the chief financial officer or treasurer of the Borrower and
setting forth in reasonable detail computations evidencing compliance with
the covenants contained in (S)9 hereof and certifying, to
(83)
the best knowledge of the signatory, that no Default or Event of Default
would occur and be continuing after giving effect to all such proposed
Sales or Indebtedness Liens and all liabilities, fixed or contingent,
pursuant thereto; and
(iii) in addition to the Borrower's rights under clause (ii) above,
the Sale of or the granting of an Indebtedness Lien on any of its now owned
or hereafter acquired assets (other than Real Estate Assets) in one or more
transactions; provided that such transactions under this clause (iii) shall
--------
not exceed $250,000 in the aggregate after the occurrence and during the
continuance of a Default or an Event of Default.
(S)8.5. [Intentionally Omitted].
---------------------
(S)8.6. Compliance with Environmental Laws. None of the Borrower, any
----------------------------------
Guarantor, any Operating Subsidiary or any wholly-owned Subsidiary will do any
of the following: (a) use any of the Real Estate Assets or any portion thereof
as a facility for the handling, processing, storage or disposal of Hazardous
Substances except for quantities of Hazardous Substances used in the ordinary
course of business and in compliance with all applicable Environmental Laws, (b)
cause or permit to be located on any of the Real Estate Assets any underground
tank or other underground storage receptacle for Hazardous Substances except in
full compliance with Environmental Laws, (c) generate any Hazardous Substances
on any of the Real Estate Assets except in full compliance with Environmental
Laws, or (d) conduct any activity at any Real Estate Asset or use any Real
Estate Asset in any manner so as to cause a Release; provided that a breach of
--------
this covenant shall constitute an Event of Default under (S)13.1(d) (subject to
the cure periods set forth therein) hereof only if such breach has a material
adverse effect on the Borrower and its Subsidiaries, taken as a whole.
(S)8.7. Distributions. (a) The Borrower will not make (i) annual
-------------
Distributions in excess of 95% of "funds from operations" or (ii) any
Distributions during any period when any Event of Default has occurred and is
continuing; provided, however, that the Borrower may at all times make
Distributions to the extent (after taking into account all available funds of
BPC from all other sources) required in order to enable BPC to continue to
qualify as a REIT.
(b) BPC will not, during any period when any Event of Default has
occurred and is continuing, make any Distributions in excess of the
Distributions required to be made by BPC in order to maintain its status as a
REIT.
(84)
(S)9. FINANCIAL COVENANTS OF THE BORROWER. The Borrower covenants and
------------------------------------
agrees that, so long as any Loan, Letter of Credit or Note is outstanding or any
Bank has any obligation to make any Loan or any Bank has any obligation to
issue, extend or renew any Letters of Credit:
(S)9.1. Consolidated Outstanding Indebtedness. As at the end of any
-------------------------------------
fiscal quarter or any other date of measurement, the Borrower shall not permit
Consolidated Outstanding Indebtedness to exceed 50% of Consolidated Market
Value; provided that the Borrower shall not be deemed to have breached the
--------
within covenant if from time to time, for a period of not more than one hundred
eighty (180) consecutive days, Consolidated Outstanding Indebtedness exceeds 50%
of Consolidated Market Value but does not exceed 60% of Consolidated Market
Value (an "Increased Leverage Period") so long as (a) the Borrower shall have
given the Agent prior or simultaneous written notice of the commencement of an
Increased Leverage Period and (b) after the Borrower at any time reduces
Consolidated Outstanding Indebtedness to not greater than 50% of Consolidated
Market Value, the Borrower shall maintain Consolidated Outstanding Indebtedness
at not greater than 50% of Consolidated Market Value for a period of at least
thirty (30) consecutive days or such shorter period of time as may be agreed to
in writing by the Majority Banks. For purposes of this (S)9.1, Consolidated
Market Value shall be adjusted on a pro-forma basis to account for Real Estate
Assets acquired during such prior fiscal quarter by projecting the Funds from
Operations generated by each such acquired Real Estate Asset for the portion of
the quarter during which it was owned or ground-leased by the Borrower over the
entire quarter.
(S)9.2. Consolidated Secured Indebtedness. As at the end of any fiscal
---------------------------------
quarter or any other date of measurement, the Borrower shall not permit
Consolidated Secured Indebtedness to exceed 40% of Consolidated Market Value.
For purposes of this (S)9.2, Consolidated Market Value shall be adjusted on a
pro-forma basis to account for Real Estate Assets acquired during such prior
fiscal quarter by projecting the Funds from Operations generated by each such
acquired Real Estate Asset for the portion of the quarter during which it was
owned or ground-leased by the Borrower over the entire quarter.
(S)9.3. Net Worth. As at the end of any fiscal quarter or any other
---------
date of measurement, the Borrower shall not permit Consolidated Net Worth to be
less than the sum of (a) $588,046,000 plus (b) 50% of the sum of (i) the
----
aggregate proceeds received by BPC (net of fees and expenses customarily
incurred in transactions of such type) in connection with any offering of stock
in BPC and (ii) the aggregate value of operating units issued by the Borrower in
connection with asset or stock acquisitions (valued at the time of issuance by
reference to the terms of the agreement pursuant to which such units are
issued), in each case after the Closing Date and on or prior to the date such
determination of
(85)
Consolidated Net Worth is made. For purposes of determining Consolidated Net
Worth for this (S)9.3, Consolidated Market Value shall be adjusted on a pro-
forma basis to account for Real Estate Assets acquired during such prior fiscal
quarter by projecting the Funds from Operations generated by each such acquired
Real Estate Asset for the portion of the quarter during which it was owned or
ground-leased by the Borrower over the entire quarter.
(S)9.4. Unencumbered Assets.
-------------------
(a) As at the end of any fiscal quarter or any other date of
measurement, the Borrower shall not permit Consolidated Outstanding Recourse
Indebtedness to exceed 60% of the aggregate Asset Value of all Unencumbered
Assets (provided that the maximum contribution that any single Unencumbered
Asset may make toward the aggregate Asset Value of all Unencumbered Assets shall
be limited to 25%).
(b) The Borrower shall not at any time permit (i) the aggregate
Asset Value of all Unencumbered Assets that are Class A and Class B office
buildings to be less than 85% of the aggregate Asset Value of all Unencumbered
Assets or (b) the aggregate Asset Value of all Unencumbered Assets that are
Class A office buildings to be less than 59.5% of the aggregate Asset Value of
all Unencumbered Assets.
(c) For purposes of determining the Asset Value of all
Unencumbered Assets for this (S)9.4, the Net Operating Income of any
Unencumbered Asset acquired during such prior fiscal quarter shall be adjusted
on a pro-forma basis by projecting the Net Operating Income generated by each
such acquired Unencumbered Asset for the portion of the quarter during which it
was owned or ground-leased by the Borrower over the entire quarter.
(S)9.5. Cash Flow. As at the end of any fiscal quarter or any other
---------
date of measurement, the Borrower shall not permit the sum of (a) Consolidated
Cash Flow minus (b) Annual Unfunded Capital Expenditure Reserve (appropriately
-----
prorated to reflect the Borrower's pro rata interest in any Real Estate Asset
owned or ground-leased by a Partially-Owned Real Estate Holding Entity) to be
less than 2 times Consolidated Debt Service, based on the results of the most
-----
recent one (1) completed fiscal quarter annualized. For purposes of this
(S)9.5, Consolidated Cash Flow, Annual Unfunded Capital Expenditure Reserve and
Consolidated Debt Service shall each be adjusted on a proforma basis to account
for Real Estate Assets acquired during such prior fiscal quarter by projecting
the results generated by each such acquired Real Estate Asset for the portion of
the quarter during which it was owned or ground-leased by the Borrower over the
entire quarter.
(86)
(S)9.6. Unencumbered Asset Debt Service Coverage. As at the end of any
----------------------------------------
fiscal quarter or any other date of measurement, the Borrower shall not permit
Consolidated Unencumbered Asset Cash Flow to be less than 1.50 times
-----
Consolidated Unsecured Debt Service Charges, based on the results of the most
recent one (1) completed fiscal quarter annualized. For purposes of this
(S)9.6, Consolidated Unencumbered Asset Cash Flow and Consolidated Unsecured
Debt Service Charges shall each be adjusted on a proforma basis to account for
Real Estate Assets acquired during such prior fiscal quarter by projecting the
results generated by each such acquired Real Estate Asset for the portion of the
quarter during which it was owned or ground-leased by the Borrower over the
entire quarter.
(S)9.7. Assets Under Development. The Borrower shall not permit the sum
------------------------
of (a) the aggregate remaining Budgeted Project Costs to complete all Real
Estate Assets under Development plus (b) Consolidated Outstanding Recourse
----
Indebtedness to exceed 75% of the aggregate Asset Value of all Unencumbered
Assets. For purposes of determining the Asset Value of all Unencumbered Assets
for this (S)9.7, the Net Operating Income of any Unencumbered Asset acquired
during such prior fiscal quarter shall be adjusted on a pro-forma basis by
projecting the Net Operating Income generated by each such acquired Unencumbered
Asset for the portion of the quarter during which it was owned or ground-leased
by the Borrower over the entire quarter.
(S)9.8. Covenant Calculations.
---------------------
(a) For purposes of the calculations to be made pursuant to
(S)(S)9.1, 9.2, 9.3, 9.4, 9.5, 9.6 and 9.7 (and the defined terms relevant
thereto, including, without limitation, those relating to "debt service"),
references to Indebtedness of the Borrower shall:
(i) mean Indebtedness of the Borrower, plus (but without
----
double-counting):
(A) all Indebtedness of the Operating
Subsidiaries, the Guarantors and any other wholly-owned Subsidiary
(excluding any such Indebtedness owed to the Borrower or any Guarantor;
provided that, as to BPC, BPC has a corresponding Indebtedness to the
--------
Borrower),
(B) all Indebtedness of each Partially-Owned Real
Estate Holding Entity, but only to the extent, if any, that said
Indebtedness is Recourse to any of the Credit Parties or any of their
respective assets (other than their respective interests in such
Partially-Owned Real Estate Holding Entity), and
(87)
(C) Indebtedness of each Partially-Owned Real
Estate Holding Entity to the extent of the pro-rata share of such
Indebtedness allocable to any of the Credit Parties, if the Indebtedness
of such Partially-Owned Real Estate Holding Entity is Without Recourse to
such Person or its assets (other than its interest in such Partially-
Owned Real Estate Holding Entity).
(ii) exclude (to the extent otherwise includable in the
definition of "Indebtedness") (A) all unsecured liabilities for trade payables
incurred in the ordinary course of business and which are not overdue for more
than sixty (60) days, (B) other accrued current liabilities that are not yet due
and payable and (C) contingent liabilities, other than contingent liabilities in
respect of obligations for borrowed money or in respect of other fixed liquid
obligations.
(b) For purposes of any calculations to be made pursuant to any
of the covenants contained in this (S)9 and the defined terms used herein, (i)
each wholly-owned Subsidiary and Center Plaza Associates shall be treated for
all purposes as if their assets, liabilities and operations were owned directly
by the Borrower (provided, however, for the purpose of determining the amount of
Consolidated Outstanding Recourse Indebtedness under Sections 9.4 and 9.7, the
Indebtedness of a wholly-owned Subsidiary which is not a Credit Party shall not
constitute Recourse Indebtedness of the Borrower) and (ii) references to
Indebtedness of the Borrower shall not include the Center Plaza Subordinate
Debt, the Rowes Wharf Debt, the Russia Wharf Debt, or the South Station Debt.
(c) The Agent shall have the right to treat Center Plaza as not
100% owned by the Borrower and/or to adjust, in its sole discretion, the Asset
Value thereof (including, without limitation, to exclude entirely from the
calculations to be made pursuant to the covenants contained in this (S)9 both
the Asset Value thereof and the Without Recourse Indebtedness on Center Plaza
owed to CIGNA or any other lender) in the event that (i) the Borrower ceases to
own at least a 75% limited partnership interest in Center Plaza Associates and
either the remaining 24% limited partnership interest therein or an option to
purchase such interest pursuant to the Center Plaza Option Agreement (Limited
Partnership Interest), (ii) the entire 1% general partner interest in Center
Plaza Associates ceases to be beneficially owned in its entirety by the Borrower
and/or BPC, or (iii) the Borrower ceases to own the Center Plaza Subordinate
Debt Interests (as hereinafter defined). For purposes of the preceding sentence,
the Borrower will be considered the owner of the Center Plaza Subordinate Debt
Interests even though the Borrower has pledged the same to CIGNA (the "CIGNA
Pledge") as collateral security for CIGNA's first mortgage loan on Center Plaza
(the "CIGNA Center Plaza Mortgage") unless and until (x) CIGNA or its assignee
forecloses on the CIGNA Pledge, (y) the Center Plaza
(88)
Subordinate Debt Interests are transferred to CIGNA or its assignee, or (z)
CIGNA or its assignee commences any other creditors' rights action against the
Borrower or Center Plaza Associates which results or may result in the Borrower
not being the owner of the Center Plaza Subordinate Debt Interests. As used
herein, the "Center Plaza Subordinate Debt Interests" shall mean (A) the Center
Plaza First Tier Notes, (B) the Center Plaza Beacon Note and (C) either the
option to acquire the Center Plaza Second Tier Note pursuant to the Center Plaza
Option Agreement (Second Tier Notes) or, if such option is exercised, the Center
Plaza Second Tier Note itself.
(S)10. [INTENTIONALLY OMITTED.]
---------------------
(S)11. CONDITIONS TO THE CLOSING DATE. The obligations of the Banks to
------------------------------
make the initial Loans and of the Fronting Bank to issue any initial Letters of
Credit shall be subject to the satisfaction of the following conditions
precedent:
(S)11.1. Loan Documents. Each of the Loan Documents shall have been
--------------
duly executed and delivered by the respective parties thereto and shall be in
full force and effect.
(S)11.2. Certified Copies of Organization Documents. The Agent shall
------------------------------------------
have received (i) from the Borrower a copy, certified as of a recent date by a
duly authorized officer of BPC, in its capacity as general partner of the
Borrower, to be true and complete, of the Agreement of Limited Partnership of
the Borrower and any other agreement governing the rights of the partners of the
Borrower, (ii) from BPC a copy, certified as of a recent date by the appropriate
officer of the State of Maryland to be true and correct, of the corporate
charter of the BPC, (iii) from 1333 a copy, certified as of a recent date by a
duly authorized officer of BPC to be true and complete, of the 1333 Agreement of
Limited Partnership and any other agreement governing the rights of the partners
of 1333, (iv) from Burlington a copy, certified as of a recent date by a duly
authorized officer of BPC to be true and complete, of the Burlington Agreement
of Limited Partnership and any other agreement governing the rights of the
partners of Burlington, in each case along with any other organization documents
of the Borrower or such Guarantor and their respective general partners, as the
case may be, and each as in effect on the date of such certification.
(S)11.3. By-laws; Resolutions. All action on the part of the Borrower
--------------------
and each present Guarantor necessary for the valid execution, delivery and
performance by the Borrower and such Guarantor of this Agreement and the other
Loan Documents to which either of them is or is to become a party shall have
been duly and effectively taken, and evidence thereof satisfactory to the
Banks shall have been provided to the Agent. The Agent shall have received
(89)
from BPC true copies of its by-laws and the resolutions adopted by its board of
directors authorizing the transactions described herein and evidencing the due
authorization, execution and delivery of the Loan Documents to which BPC and/or
the Borrower and/or 1333 and/or Burlington is a party, each certified by the
secretary as of a recent date to be true and complete.
(S)11.4. Incumbency Certificate; Authorized Signers. The Agent shall
------------------------------------------
have received from BPC an incumbency certificate, dated as of the Closing Date,
signed by a duly authorized officer of BPC and giving the name of each
individual who shall be authorized: (a) to sign, in the name and on behalf of
the Borrower, 1333, Burlington and BPC, as the case may be, each of the Loan
Documents to which the Borrower, 1333, Burlington or BPC is or is to become a
party; (b) to make Completed Revolving Credit Loan Requests, Conversion Requests
and Competitive Bid Quote Requests on behalf of the Borrower; and (c) to give
notices and to take other action on behalf of the Borrower, 1333, Burlington or
BPC, as applicable, under the Loan Documents.
(S)11.5. Title Policies. The Agent (on behalf of the Banks) shall have
--------------
received the Title Policies for all Real Estate Assets which are Unencumbered
Assets as of the Closing Date.
(S)11.6. Certificates of Insurance. The Agent shall have received (a)
-------------------------
current certificates of insurance as to all of the insurance maintained by
Borrower on the Unencumbered Assets (including flood insurance if necessary)
from the insurer or an independent insurance broker, identifying insurers, types
of insurance, insurance limits, and policy terms; and (b) such further
information and certificates from Borrower, its insurers and insurance brokers
as the Agent may reasonably request.
(S)11.7. Opinion of Counsel Concerning Organization and Loan Documents.
-------------------------------------------------------------
Each of the Banks and the Agent shall have received favorable opinions addressed
to the Banks and the Agent in form and substance satisfactory to the Banks and
the Agent from ▇▇▇▇▇▇▇, Procter and ▇▇▇▇ LLP and/or Goulston & Storrs, P.C., as
counsel to the Borrower, the present Guarantors and their respective
subsidiaries with respect to Massachusetts law and certain matters of Delaware
law and ▇▇▇▇▇▇▇, Procter and ▇▇▇▇ LLP, as counsel to BPC, with respect to
Maryland law.
(S)11.8. [Intentionally Omitted].
---------------------
(S)11.9. Tax and Securities Law Compliance. Each of the Banks and the
---------------------------------
Agent shall also have received from ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, as counsel to
the Borrower and BPC, a favorable opinion addressed to the Banks and the Agent,
in form and substance satisfactory to each of the Banks and the Agent,
(90)
with respect to the qualification of BPC as a REIT and certain other tax
matters.
(S)11.10. Guaranties. Each of the Guaranties shall have been duly
----------
executed and delivered by the Guarantor thereunder.
(S)11.11. Interest Rate Protection. The Agent shall have received
------------------------
evidence satisfactory to the Agent that the Borrower has obtained interest rate
protection arrangements in accordance with the requirements set forth in (S)7.16
hereof.
(S)11.12. Financial Analysis of Unencumbered Assets. Each of the Banks
-----------------------------------------
shall have completed, to its satisfaction, a financial analysis of each
Unencumbered Asset, which analysis shall include, without limitation, a review,
with respect to each Unencumbered Asset, of (i) the most recent rent rolls, (ii)
three (3) year historical and projected operating statements, (iii) cash flow
projections, (iv) capital expenditure budgets (which shall be subject to the
review and approval of each of the Banks), (v) market data, (vi) selected
Leases, and (vii) tenant financial statements, to the extent available. The
costs and expenses incurred by each Bank in conducting such analysis shall be
borne by such Bank; provided that the Borrower will furnish such materials to
--------
the Banks at the Borrower's expense. The Borrower agrees that at the request of
any Bank it will furnish the materials described in this (S)11.12 to such Bank
after the Closing Date.
(S)11.13. Inspection of Unencumbered Assets. The Agent shall have
---------------------------------
completed to its satisfaction, and at the Borrower's expense, an inspection of
the Unencumbered Assets which the Agent has not inspected in the one (1) year
period prior to the Closing Date.
(S)11.14. Certifications from Government Officials; UCC-11 Reports. The
--------------------------------------------------------
Agent shall have received (i) long-form certifications from government officials
evidencing the legal existence, good standing and foreign qualification of the
Borrower and each Guarantor, along with a certified copy of the certificate of
limited partnership of each of the Borrower, 1333 and Burlington, all as of the
most recent practicable date; and (ii) UCC-11 search results from the
appropriate jurisdictions for the Borrower and each Guarantor with respect to
the Unencumbered Assets.
(S)11.15. Proceedings and Documents. All proceedings in connection with
-------------------------
the transactions contemplated by this Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in form and substance
to each of the Banks and to the Agent's counsel, and the Agent, each of the
Banks and such counsel shall have received all information
(91)
and such counterpart originals or certified or other copies of such documents as
the Agent may reasonably request.
(S)11.16. Fees. The Borrower shall have paid to the Agent, for the
----
accounts of the Banks or for its own account, as applicable, all of the fees and
expenses that are due and payable as of the Closing Date in accordance with this
Agreement.
(S)11.17. Closing Certificate; Compliance Certificate. The Borrower
-------------------------------------------
shall have delivered a Closing Certificate to the Agent, the form of which is
attached hereto as Exhibit E. The Borrower shall have delivered a compliance
---------
certificate in the form of Exhibit D hereto evidencing compliance with the
---------
covenants set forth in (S)9 hereof on a pro forma basis.
(S)11.18. Capital Reserves. The Borrower shall have delivered and the
----------------
Agent shall have approved initial schedules of the Annual Unfunded Capital
Expenditure Reserve covering the 1997 fiscal year.
(S)11.19. Partnership Documents. The Agent shall have received from the
---------------------
Borrower true copies of all Partnership Documents.
(S)11.20. Subsequent Guarantors. As a condition to the effectiveness of
---------------------
any subsequent Guaranty, each subsequent Guarantor shall deliver such documents,
agreements, instruments and opinions as the Agent shall require as to such
Guarantor and the Unencumbered Asset owned or ground-leased by such Guarantor
that are analogous to the deliveries made by the Guarantors as of the Closing
Date pursuant to (S)11.2 through (S)11.7, (S)11.10 and (S)11.14(i).
(S)12. CONDITIONS TO ALL BORROWINGS. The obligations of the Banks to
----------------------------
make any Loan and of any Bank to issue, extend or renew any Letter of Credit, in
each case, whether on or after the Closing Date, shall also be subject to the
satisfaction of the following conditions precedent:
(S)12.1. Representations True; No Event of Default; Compliance
-----------------------------------------------------
Certificate. Each of the representations and warranties of the Borrower and the
-----------
Guarantors contained in this Agreement, the other Loan Documents or in any
document or instrument delivered pursuant to or in connection with this
Agreement shall be true as of the date as of which they were made and shall also
be true at and as of the time of the making of each Loan or the issuance,
extension or renewal of each Letter of Credit, with the same effect as if made
at and as of that time (except to the extent of changes resulting from
transactions contemplated or not prohibited by this Agreement or the other Loan
Documents (including, without limitation, the fact that a Real Estate Asset may
cease to be an Unencumbered Asset pursuant to the terms of this Agreement) and
changes occurring in the
(92)
ordinary course of business, and except to the extent that such representations
and warranties relate expressly to an earlier date and except to the extent
otherwise represented by the Borrower with respect to the representation set
forth in (S)6.10); and no Default or Event of Default under this Agreement shall
have occurred and be continuing on the date of any Completed Revolving Credit
Loan Request or Competitive Bid Quote Request or on the Drawdown Date of any
Loan. Each of the Banks shall have received a certificate of the Borrower
signed by an authorized officer of the Borrower as provided in (S)2.6(iv)(c) or
(S)2B.9.
(S)12.2. No Legal Impediment. No change shall have occurred in any law
-------------------
or regulations thereunder or interpretations thereof that in the reasonable
opinion of the Agent or any Bank would make it illegal for any Bank to make such
Loan or to participate in the issuance, extension or renewal of such Letter of
Credit or, in the reasonable opinion of the Agent, would make it illegal to
issue, extend or renew such Letter of Credit.
(S)12.3. Governmental Regulation. Each Bank shall have received such
-----------------------
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
(S)13. EVENTS OF DEFAULT; ACCELERATION; ETC.
-------------------------------------
(S)13.1. Events of Default and Acceleration. If any of the following
----------------------------------
events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans
when the same shall become due and payable;
(b) the Borrower shall fail to pay any interest on the Loans
or any other sums due hereunder or under any of the other Loan Documents
(including, without limitation, amounts due under (S)7.17) when the same shall
become due and payable, and such failure continues for three (3) days (provided
--------
that in the case of such sums due other than for interest, the Borrower shall
have received from the Agent notice of the nature and amount of such other
amounts and that payment therefor is due);
(c) the Borrower or any Guarantor shall fail to comply with
any of their respective covenants contained in (S)7.1 (except with respect to
interest and other sums covered by clause (b) above), (S)7.6 (as to the legal
existence of the Borrower, 1333 or Burlington and any future Guarantor), (S)7.7
(as to the legal existence and REIT status of BPC), (S)7.12, (S)7.16, (S)7.22,
(S)8.1, (S)8.2 (pertaining to
(93)
liens, mortgages, pledges, attachments or other security interests with respect
to Unencumbered Assets), (S)8.4 and (S)8.7;
(d) the Borrower or any Guarantor shall fail to comply with
any of their respective covenants contained in (S)7.5, (S)7.8, (S)7.9, (S)7.14,
(S)7.18, (S)8.2 (other than pertaining to liens, mortgages, pledges, attachments
or other security interests with respect to Unencumbered Assets), (S)8.6
(subject to the limitation set forth in (S)8.6) and (S)9 and such failure
continues for thirty (30) days; provided, however, that the grace periods within
--------
which the Borrower must cure any failure to comply with any covenants contained
in (S)9 may be extended by an additional fifteen (15) days if prior to the
expiration of such initial thirty (30) day cure period, the Agent determines, in
its reasonable discretion, that the Borrower is diligently pursuing a cure;
(e) the Borrower or any of its Subsidiaries or any Guarantor
shall fail to perform any other term, covenant or agreement contained herein
(including the covenants in (S)7.6 and (S)7.7 not covered in (c) above) or in
any of the other Loan Documents (other than those specified elsewhere in this
(S)13) for thirty (30) days after written notice of such failure from the Agent
to the Borrower; provided, however that, with respect to the covenants contained
-------- -------
in (S)(S)7.2, 7.6 (other than as covered in (c) above), 7.7 (other than as
covered in (c) above), 7.11, 7.13, 7.15, 7.19, 7.20 and 7.21, if (i) the failure
to perform is capable of being cured by the Borrower but not within such thirty
(30) day period, (ii) no enforcement action has been commenced by a third party
against the Borrower, any Guarantor or any related Unencumbered Asset on account
of such failure to perform nor is such Unencumbered Asset subject to risk of
forfeiture to a third party due to such failure to perform, and (iii) the
Borrower promptly commences the cure thereof after the Borrower's receipt of
such notice from the Agent, the Borrower shall have such additional period of
time as may be reasonably required in order to cure such failure to perform but
in any event such period shall not exceed six (6) months from the date of notice
from the Agent, and no Event of Default shall exist under this (S)13.1(e) during
such additional period so long as the Borrower continuously and diligently
pursues the cure of such failure to perform and the other conditions to extended
cure (i.e., no enforcement action, forfeiture, etc.) have not changed;
(f) any representation or warranty of the Borrower or any
Guarantor in this Agreement or any of the other Loan Documents or in any other
document or instrument delivered pursuant to or in connection with this
Agreement shall prove to have been false in any material respect upon the date
when made or deemed to have been made or repeated, provided, however that, with
-------- -------
respect to the representations and warranties contained in (S)6.6, (S)6.9,
(S)6.16, and (S)6.18, if (i) the condition or event making the representation
and warranty false is capable of being cured by the Borrower, (ii) no
enforcement
(94)
action has been commenced by a third party against the Borrower or any related
Unencumbered Asset on account of such condition or event nor is such
Unencumbered Asset subject to risk of forfeiture to a third party due to such
condition or event, and (iii) the Borrower promptly commences the cure thereof
after the Borrower's first obtaining knowledge of such condition or event, the
Borrower shall have a period of thirty (30) days after the date that the
Borrower first obtained knowledge of such condition or event during which the
Borrower may cure such condition or event (or, if such condition or event is not
reasonably capable of being cured within such thirty (30) day period, such
additional period of time as may be reasonably required in order to cure such
condition or event but in any event such period shall not exceed six (6) months
from the date that the Borrower first obtained knowledge of such condition or
event), and no Event of Default shall exist under this (S)13.1(f) during such
thirty (30) day or additional period so long as the Borrower continuously and
diligently pursues the cure of such condition or event and the other conditions
to cure (i.e., no enforcement action, forfeiture, etc.) have not changed;
(g) the Borrower or any Guarantor or any of their respective
Subsidiaries shall fail to pay at maturity, or within any applicable period of
grace, any obligation for borrowed money or credit received or in respect of any
Capitalized Leases (other than non-recourse obligations or credit) in an
aggregate amount in excess of $1,000,000, or fail to observe or perform any
material term, covenant or agreement contained in any agreement by which it is
bound relating to such recourse obligations, evidencing or securing borrowed
money or credit received or in respect of any Capitalized Leases for such period
of time (after the giving of appropriate notice if required) as would permit the
holder or holders thereof or of any obligations issued thereunder aggregating in
excess of $1,000,000 to accelerate the maturity thereof; or the Borrower, any
Guarantor or any of their respective Subsidiaries shall fail to pay, observe or
perform any material term, covenant, condition or agreement contained in any
agreement, document or instrument evidencing, securing or otherwise relating to
any Indebtedness of the Borrower within any applicable period of grace provided
for in such agreement, document or instrument (other than (i) the Obligations,
(ii) Indebtedness which is Without Recourse to any of the Credit Parties, and
(iii) other Indebtedness, in the aggregate, not in excess of $1,000,000);
(h) any of the Credit Parties shall make an assignment for the
benefit of creditors, or admit in writing its inability to pay or generally fail
to pay its debts as they mature or become due, or shall petition or apply for
the appointment of a trustee or other custodian, liquidator or receiver of any
of the Credit Parties or of any substantial part of the properties or assets of
any of the Credit Parties or shall commence any case or other proceeding
relating to any of the Credit Parties under any bankruptcy, reorganization,
arrangement,
(95)
insolvency, readjustment of debt, dissolution or liquidation or similar law of
any jurisdiction, now or hereafter in effect, or shall take any action to
authorize or in furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall be
commenced against any of the Credit Parties and (i) any of the Credit Parties
shall indicate its approval thereof, consent thereto or acquiescence therein or
(ii) any such petition, application, case or other proceeding shall continue
undismissed, or unstayed and in effect, for a period of ninety (90) days;
(i) a decree or order is entered appointing any trustee,
custodian, liquidator or receiver or adjudicating any of the Credit Parties
bankrupt or insolvent, or approving a petition in any such case or other
proceeding, or a decree or order for relief is entered in respect of any of the
Credit Parties in an involuntary case under federal bankruptcy laws as now or
hereafter constituted;
(j) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty (30) days, whether or not consecutive, any
uninsured final judgment against any of the Credit Parties that, with other
outstanding uninsured final judgments, undischarged, unsatisfied and unstayed,
against any of the Credit Parties exceeds in the aggregate $1,000,000;
(k) any of the Loan Documents or any material provision of any
Loan Documents shall be cancelled, terminated, revoked or rescinded otherwise
than in accordance with the terms thereof or with the express prior written
agreement, consent or approval of the Agent or any Guaranty shall be cancelled,
terminated, revoked or rescinded at any time or for any reason whatsoever, or
any action at law, suit or in equity or other legal proceeding to make
unenforceable, cancel, revoke or rescind any of the Loan Documents shall be
commenced by or on behalf of the Borrower or any of its Subsidiaries or any
Guarantor or any of its Subsidiaries, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the effect
that, any one or more of the Loan Documents is illegal, invalid or unenforceable
as to any material terms thereof;
(l) [Intentionally Omitted];
(m) any "Event of Default" or default (after notice and
expiration of any period of grace, to the extent provided, and if none is
specifically provided, then for a period of thirty (30) days after notice), as
defined or provided in any of the other Loan Documents, shall occur and be
continuing;
(n) with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Majority Banks shall have
(96)
determined in their reasonable discretion that such event reasonably could be
expected to result in liability of the Borrower or any of its Subsidiaries or
any Guarantor or any of its Subsidiaries to the PBGC or such Guaranteed Pension
Plan in an aggregate amount exceeding $1,000,000 and such event in the
circumstances occurring reasonably could constitute grounds for the termination
of such Guaranteed Pension Plan by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer such
Guaranteed Pension Plan; or a trustee shall have been appointed by the United
States District Court to administer such Plan; or the PBGC shall have instituted
proceedings to terminate such Guaranteed Pension Plan;
(o) [Intentionally Omitted];
(p) [Intentionally Omitted];
(q) [Intentionally Omitted];
(r) the occurrence of any of the events described in
(S)28(b)(i) or (ii) below; or
(s) the occurrence of a breach or default under (S)7.25
(Management) hereof which remains uncured for the ninety (90) day period
provided for therein;
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Majority Banks shall, by notice in writing to
the Borrower, declare all amounts owing with respect to this Agreement, the
Revolving Credit Notes and the other Loan Documents and all Reimbursement
Obligations to be, and they shall thereupon forthwith become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower and each Guarantor;
provided that in the event of any Event of Default specified in (S)13.1(h) or
--------
13.1(i), all such amounts shall become immediately due and payable automatically
and without any requirement of notice from any of the Banks or the Agent or
action by the Banks or the Agent.
(S)13.2. Termination of Commitments. If any one or more Events of
--------------------------
Default specified in (S)13.1(h) or (S)13.1(i) shall occur, any unused portion of
the Commitments hereunder shall forthwith terminate and the Banks shall be
relieved of all obligations to make Loans to the Borrower and the Agent and any
Fronting Bank shall be relieved of all further obligations to issue, extend or
renew Letters of Credit. If any other Event of Default shall have occurred and
be continuing, whether or not the Banks shall have accelerated the maturity of
the Loans pursuant to (S)13.1, any Bank may, by notice to the Borrower,
(97)
terminate the unused portion of that Bank's Commitment hereunder, and upon such
notice being given such unused portion of such Commitment shall terminate
immediately, such Bank shall be relieved of all further obligations to make
Loans, the Agent and any Fronting Bank shall be relieved of all further
obligations to issue, extend or renew Letters of Credit and the Total
Commitments shall be reduced accordingly. No such termination of a Commitment
hereunder shall relieve the Borrower of any of the Obligations or any of its
existing obligations to such Bank arising under other agreements or instruments.
(S)13.3. Remedies. In the event that one or more Events of Default
--------
shall have occurred and be continuing, whether or not the Banks shall have
accelerated the maturity of the Loans pursuant to (S)13.1, the Majority Banks
may direct the Agent to proceed to protect and enforce the rights and remedies
of the Agent and the Banks under this Agreement, the Revolving Credit Notes, any
or all of the other Loan Documents or under applicable law by suit in equity,
action at law or other appropriate proceeding (including for the specific
performance of any covenant or agreement contained in this Agreement or the
other Loan Documents or any instrument pursuant to which the Obligations are
evidenced and, to the full extent permitted by applicable law, the obtaining of
the ex parte appointment of a receiver), and, if any amount shall have become
-- -----
due, by declaration or otherwise, proceed to enforce the payment thereof or any
other legal or equitable right or remedy of the Agent and the Banks under the
Loan Documents or applicable law. No remedy herein conferred upon the Banks or
the Agent or the holder of any Revolving Credit Note or purchaser of any Letter
of Credit Participation is intended to be exclusive of any other remedy and each
and every remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or under any of the other Loan Documents or now or
hereafter existing at law or in equity or by statute or any other provision of
law.
(S)14. SETOFF. Without demand or notice, during the continuance of any
------
Event of Default, any deposits in any Operating Account (general or specific,
time or demand, provisional or final, regardless of currency, maturity, or the
branch at which such deposits are held, but specifically excluding tenant
security deposits, other fiduciary accounts and other segregated escrow accounts
required to be maintained by the Borrower for the benefit of any third party in
connection with any Unencumbered Asset) in the possession of the Agent or a Bank
may be applied to or set off against the payment of the Obligations. Neither the
Agent nor any of the Banks shall have any right of set-off or the like with
respect to the Obligations against any other accounts of the Borrower, any
Guarantor, their respective Subsidiaries or any Partially-Owned Real Estate
Holding Entity, all such rights of set-off and the like being hereby waived by
the Agent and the Banks, excepting only the Agent's right of set-off with
respect to
(98)
the Operating Accounts set forth in the preceding sentence. Each of
the Banks agrees with each other Bank that (a) if pursuant to any agreement
between such Bank and the Borrower (other than this Agreement or any other Loan
Document), an amount to be set off is to be applied to Indebtedness of the
Borrower to such Bank, other than with respect to the Obligations, such amount
shall be applied ratably to such other Indebtedness and to the Obligations, and
(b) if such Bank shall receive from the Borrower, whether by voluntary payment,
exercise of the right of setoff, counterclaim, cross action, enforcement of the
Obligations by proceedings against the Borrower at law or in equity or by proof
thereof in bankruptcy, reorganization, liquidation, receivership or similar
proceedings, or otherwise, and shall retain and apply to the payment of the
Revolving Credit Note or Revolving Credit Notes held by, or Reimbursement
Obligations owed to, such Bank any amount in excess of its ratable portion of
the payments received by all of the Banks with respect to the Revolving Credit
Notes held by, and Reimbursement Obligations owed to, all of the Banks, such
Bank will make such disposition and arrangements with the other Banks with
respect to such excess, either by way of distribution, pro tanto assignment of
--- -----
claims, subrogation or otherwise, as shall result in each Bank receiving in
respect of the Revolving Credit Notes held by it or Reimbursement Obligations
owed it, its proportionate payment as contemplated by this Agreement; provided
--------
that if all or any part of such excess payment is thereafter recovered from such
Bank, such disposition and arrangements shall be rescinded and the amount
restored to the extent of such recovery, but without interest. Notwithstanding
the foregoing, no Bank shall exercise a right of setoff if such exercise would
limit or prevent the exercise of any other remedy or other recourse against the
Borrower.
(S)15. THE AGENT.
---------
(S)15.1. Authorization. (a) The Agent is authorized to take such action
-------------
on behalf of each of the Banks and to exercise all such powers as are hereunder
and under any of the other Loan Documents and any related documents delegated to
the Agent, together with such powers as are reasonably incident thereto,
provided that no duties or responsibilities not expressly assumed herein or
--------
therein shall be implied to have been assumed by the Agent. The relationship
between the Agent and the Banks is and shall be that of agent and principal
only, and nothing contained in this Agreement or any of the other Loan Documents
shall be construed to constitute the Agent as a trustee or fiduciary for any
Bank.
(b) The Borrower, without further inquiry or investigation,
shall, and is hereby authorized by the Banks to, assume that all actions taken
by the Agent hereunder and in connection with or under the Loan Documents are
duly authorized by the Banks. The Banks shall notify Borrower of any successor
to
(99)
Agent by a writing signed by Majority Banks, which successor shall be reasonably
acceptable to the Borrower so long as no Default or Event of Default has
occurred and is continuing. The Borrower acknowledges that any Bank which
acquires BankBoston or any Bank with a Commitment of at least $50,000,000 and an
office in Boston, Massachusetts is acceptable as a successor to the Agent.
(S)15.2. Employees and Agents. The Agent may exercise its powers and
--------------------
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to its
rights and duties under this Agreement and the other Loan Documents. The Agent
may utilize the services of such Persons as the Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses of any such Persons
shall be paid by the Borrower.
(S)15.3. No Liability. Neither the Agent, nor any of its shareholders,
------------
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent may be liable
for losses due to its willful misconduct or gross negligence.
(S)15.4. No Representations. The Agent shall not be responsible for the
------------------
execution or validity or enforceability of this Agreement, the Revolving Credit
Notes, the Letters of Credit, or any of the other Loan Documents or for the
validity, enforceability or collectibility of any such amounts owing with
respect to the Revolving Credit Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan Documents
or in any certificate or instrument hereafter furnished to it by or on behalf of
any Guarantor or the Borrower or any of their respective Subsidiaries, or be
bound to ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements in this Agreement or the other Loan
Documents. The Agent shall not be bound to ascertain whether any notice,
consent, waiver or request delivered to it by the Borrower or any Guarantor or
any holder of any of the Revolving Credit Notes shall have been duly authorized
or is true, accurate and complete. The Agent has not made nor does it now make
any representations or warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the credit worthiness or financial
condition of the Borrower or any of its Subsidiaries or any Guarantor or any of
the Subsidiaries or any tenant under a Lease or any other entity. Each Bank
acknowledges that it has, independently and without reliance upon the Agent or
any other Bank, and based upon such information and documents as it has
(100)
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement.
(S)15.5. Payments.
--------
(a) A payment by the Borrower to the Agent hereunder or any of
the other Loan Documents for the account of any Bank shall constitute a payment
to such Bank. The Agent agrees to distribute to each Bank such Bank's pro rata
--- ----
share of payments received by the Agent for the account of the Banks, as
provided herein or in any of the other Loan Documents. All such payments shall
be made on the date received, if before 1:00 p.m., and if after 1:00 p.m., on
the next Business Day. If payment is not made on the day received, the funds
shall be invested by the Agent in overnight obligations, and interest thereon
paid pro rata to the Banks.
--- ----
(b) If in the reasonable opinion of the Agent the distribution
of any amount received by it in such capacity hereunder, under the Revolving
Credit Notes or under any of the other Loan Documents might involve it in
material liability, it may refrain from making distribution until its right to
make distribution shall have been adjudicated by a court of competent
jurisdiction, provided that the Agent shall invest any such undistributed
--------
amounts in overnight obligations on behalf of the Banks and interest thereon
shall be paid pro rata to the Banks. If a court of competent jurisdiction shall
--- ----
adjudge that any amount received and distributed by the Agent is to be repaid,
each Person to whom any such distribution shall have been made shall either
repay to the Agent its proportionate share of the amount so adjudged to be
repaid or shall pay over the same in such manner and to such Persons as shall be
determined by such court.
(c) Notwithstanding anything to the contrary contained in this
Agreement or any of the other Loan Documents, any Bank that fails (i) to make
available to the Agent its pro rata share of any Loan or to purchase any Letter
--- ---
of Credit Participation or (ii) to comply with the provisions of (S)14 with
respect to making dispositions and arrangements with the other Banks, where such
Bank's share of any payment received, whether by setoff or otherwise, is in
excess of its pro rata share of such payments due and payable to all of the
--- ----
Banks, in each case as, when and to the full extent required by the provisions
of this Agreement, or to adjust promptly such Bank's outstanding principal and
its pro rata Commitment Percentage as provided in (S)2.1, shall be deemed
--- ----
delinquent (a "Delinquent Bank") and shall be deemed a Delinquent Bank until
such time as such delinquency is satisfied. A Delinquent Bank shall be deemed to
have assigned any and all payments due to it from the Borrower, whether on
account of outstanding Loans, interest, fees or otherwise, to the remaining
nondelinquent Banks for application to, and reduction of, their respective pro
---
(101)
rata shares of all outstanding Loans. The Delinquent Bank hereby authorizes the
----
Agent to distribute such payments to the nondelinquent Banks in proportion to
their respective pro rata shares of all outstanding Loans. If not previously
--- ----
satisfied directly by the Delinquent Bank, a Delinquent Bank shall be deemed to
have satisfied in full a delinquency when and if, as a result of application of
the assigned payments to all outstanding Loans of the nondelinquent Banks, the
Banks' respective pro rata shares of all outstanding Loans have returned to
--- ----
those in effect immediately prior to such delinquency and without giving effect
to the nonpayment causing such delinquency.
(S)15.6. Holders of Revolving Credit Notes. The Agent may deem and
---------------------------------
treat the payee of any Revolving Credit Notes or the purchaser of any Letter of
Credit Participation as the absolute owner or purchaser thereof for all purposes
hereof until it shall have been furnished in writing with a different name by
such payee or by a subsequent holder, assignee or transferee.
(S)15.7. Indemnity. The Banks ratably and severally agree hereby to
---------
indemnify and hold harmless the Agent and its Affiliates from and against any
and all claims, actions and suits (whether groundless or otherwise), losses,
damages, costs, expenses (including any expenses for which the Agent has not
been reimbursed by the Borrower as required by (S)16), and liabilities of every
nature and character arising out of or related to this Agreement, the Revolving
Credit Notes, or any of the other Loan Documents or the transactions
contemplated or evidenced hereby or thereby, or the Agent's actions taken
hereunder or thereunder, except to the extent that any of the same shall be
directly caused by the Agent's willful misconduct or gross negligence.
(S)15.8. Agent as Bank. In its individual capacity as a Bank,
-------------
BankBoston shall have the same obligations and the same rights, powers and
privileges in respect to its Commitment and the Loans made by it, and as the
holder of any of the Revolving Credit Notes and as the purchaser of any Letter
of Credit Participations, as it would have were it not also the Agent.
(S)15.9. Notification of Defaults and Events of Default. Each Bank
----------------------------------------------
hereby agrees that, upon learning of the existence of a default, Default or an
Event of Default, it shall (to the extent notice has not previously been
provided) promptly notify the Agent thereof. The Agent hereby agrees that upon
receipt of any notice under this (S)15.9 it shall promptly notify the other
Banks of the existence of such default, Default or Event of Default.
(S)15.10. 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 Agent shall, if (a) so
requested by the Majority Banks and (b) the Banks have provided to the Agent
(102)
such additional indemnities and assurances against expenses and liabilities as
the 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 Banks' rights
against the Borrower and the Guarantors under this Agreement and the other Loan
Documents. The Majority Banks may direct the Agent in writing as to the method
and the extent of any such enforcement, the Banks (including any Bank which is
not one of the Majority Banks) hereby agreeing to ratably and severally
indemnify and hold the Agent harmless from all liabilities incurred in respect
of all actions taken or omitted in accordance with such directions, provided
--------
that the Agent need not comply with any such direction to the extent that the
Agent reasonably believes the Agent's compliance with such direction to be
unlawful or commercially unreasonable in any applicable jurisdiction.
(S)15.11. Successor Agent. BankBoston, or any successor Agent, may
---------------
resign as Agent at any time by giving written notice thereof to the Banks and to
the Borrower. In addition, the Majority Banks may remove the Agent in the event
of the Agent's willful misconduct or gross negligence or in the event that the
Agent ceases to hold a Commitment under this Agreement. Any such resignation or
removal shall be effective upon appointment and acceptance of a successor Agent,
as hereinafter provided. Upon any such resignation or removal, the Majority
Banks shall have the right to appoint a successor Agent, which is a Bank under
this Agreement, provided that so long as no Default or Event of Default has
--------
occurred and is continuing the Borrower shall have the right to approve any
successor Agent, which approval shall not be unreasonably withheld. If, in the
case of a resignation by the Agent, no successor Agent shall have been so
appointed by the Majority Banks and approved by the Borrower, and shall have
accepted such appointment, within thirty (30) days after the retiring Agent's
giving of notice of resignation, then the retiring Agent may, on behalf of the
Banks, appoint any one of the other Banks as a successor Agent, provided such
--------
Bank has an office in the City of Boston from which it will administer the Loan.
The Borrower acknowledges that any Bank which acquires BankBoston or any Bank
which has a Commitment of at least $50,000,000 and an office in Boston,
Massachusetts is acceptable as a successor Agent. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring or removed Agent, and the retiring or removed Agent
shall be discharged from all further duties and obligations as Agent under this
Agreement. After any Agent's resignation or removal hereunder as Agent, the
provisions of this (S)15 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement. The Agent
agrees that it shall not assign any of its rights or duties as Agent to any
other Person.
(103)
(S)15.12. Notices. Any notices or other information required hereunder
-------
to be provided to the Agent (with copies for each Bank) shall be forwarded by
the Agent to each of the Banks on the same day (if practicable) and, in any
case, on the next Business Day following the Agent's receipt thereof.
(S)16. EXPENSES. The Borrower agrees to pay (a) the reasonable costs
--------
of producing and reproducing this Agreement, the other Loan Documents and the
other agreements and instruments mentioned herein, (b) the reasonable fees,
expenses and disbursements of the Agent's outside counsel or any local counsel
to the Agent incurred in connection with the preparation, administration or
interpretation of the Loan Documents and other instruments mentioned herein,
each closing hereunder, and amendments, modifications, approvals, consents or
waivers hereto or hereunder, (c) the fees, expenses and disbursements of the
Agent incurred by the Agent in connection with the preparation, administration
or interpretation of the Loan Documents and other instruments mentioned herein,
including, without limitation, the costs incurred by the Agent in connection
with its inspection of the Unencumbered Assets (subject to (S)11.13), and the
fees and disbursements of the Agent's counsel in preparing the documentation,
(d) the fees, costs, expenses and disbursements of the Agent and its Affiliates
incurred in connection with the syndication and/or participations of the Loans,
including, without limitation, travel costs, costs of preparing syndication
materials and photocopying costs, (e) all reasonable expenses (including
reasonable attorneys' fees and costs, which attorneys may be employees of any
Bank or the Agent, and the fees and costs of appraisers, engineers, investment
bankers, surveyors or other experts retained by any Bank or the Agent in
connection with any such enforcement proceedings) incurred by any Bank or the
Agent in connection with (i) the enforcement of or preservation of rights under
any of the Loan Documents against the Borrower or any of its Subsidiaries or any
Guarantor or the administration thereof after the occurrence and during the
continuance of a Default or Event of Default (including, without limitation,
expenses incurred in any restructuring and/or "workout" of the Loans), and (ii)
any litigation, proceeding or dispute whether arising hereunder or otherwise, in
any way related to any Bank's or the Agent's relationship with the Borrower or
any of its Subsidiaries or any Guarantor, (f) all reasonable fees, expenses and
disbursements of the Agent incurred in connection with UCC searches, UCC
terminations or mortgage discharges, and (g) all costs incurred by the Agent in
the future in connection with its inspection of the Unencumbered Assets. The
covenants of this (S)16 shall survive payment or satisfaction of payment of
amounts owing with respect to the Revolving Credit Notes.
(S)17. INDEMNIFICATION. The Borrower agrees to indemnify and hold
---------------
harmless the Agent and each of the Banks and the shareholders, directors,
agents, officers, subsidiaries and affiliates of the Agent and each of the Banks
(104)
from and against any and all claims, actions and suits, whether groundless or
otherwise, and from and against any and all liabilities, losses, settlement
payments, obligations, damages and expenses of every nature and character,
arising out of this Agreement or any of the other Loan Documents or the
transactions contemplated hereby or thereby or which otherwise arise in
connection with the financing, including, without limitation, (a) any actual or
proposed use by the Borrower or any of its Subsidiaries of the proceeds of any
of the Loans, (b) the Borrower or any of its Subsidiaries or any Guarantor
entering into or performing this Agreement or any of the other Loan Documents,
or (c) pursuant to (S)7.17 hereof, in each case including, without limitation,
the reasonable fees and disbursements of counsel and allocated costs of internal
counsel incurred in connection with any such investigation, litigation or other
proceeding, provided, however, that the Borrower shall not be obligated under
-------- -------
this (S)17 to indemnify any Person for liabilities arising from such Person's
own gross negligence, willful misconduct or breach of this Agreement. In
litigation, or the preparation therefor, the Borrower shall be entitled to
select counsel reasonably acceptable to the Majority Banks, and the Banks (as
approved by the Majority Banks) shall be entitled to select their own
supervisory counsel and, in addition to the foregoing indemnity, the Borrower
agrees to pay promptly the reasonable fees and expenses of each such counsel.
If and to the extent that the obligations of the Borrower under this (S)17 are
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment in satisfaction of such obligations which is
permissible under applicable law. The provisions of this (S)17 shall survive
the repayment of the Loan and the termination of the obligations of the Banks
hereunder and shall continue in full force and effect as long as the possibility
of any such claim, action, cause of action or suit exists.
(S)18. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
--------------------------
representations and warranties made herein, in the Revolving Credit Notes, in
any of the other Loan Documents or in any documents or other papers delivered by
or on behalf of the Borrower or any of its Subsidiaries or any Guarantor
pursuant hereto shall be deemed to have been relied upon by the Banks and the
Agent, notwithstanding any investigation heretofore or hereafter made by any of
them, and shall survive the making by the Banks of any of the Loans and the
issuance, extension or renewal of any Letters of Credit, as herein contemplated,
and shall continue in full force and effect so long as any Letter of Credit or
any amount due under this Agreement or the Revolving Credit Notes or any of the
other Loan Documents remains outstanding or any Bank has any obligation to make
any Loans or the Agent or any Fronting Bank has any obligation to issue, extend
or renew any Letter of Credit. The indemnification obligations of the
Borrower provided herein and in the other Loan Documents shall survive the full
repayment of amounts due and the termination of the obligations of the Banks
hereunder and thereunder to the extent provided herein and therein. All
(105)
statements contained in any certificate or other paper delivered to any Bank or
the Agent at any time by or on behalf of the Borrower or any of its Subsidiaries
or any Guarantor pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by the
Borrower or such Subsidiary or such Guarantor hereunder.
(S)19. ASSIGNMENT; PARTICIPATIONS; ETC.
-------------------------------
(S)19.1. Conditions to Assignment by Banks. Except as provided herein,
---------------------------------
each Bank may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment Percentage and Commitment and the same portion of the
Loans at the time owing to it, the Notes held by it, the Competitive Bid Loan
Accounts maintained by it, and its participating interest in the risk relating
to any Letters of Credit); provided that (a) the Agent and the Borrower each
--------
shall have the right to approve any Eligible Assignee, which approval shall not
be unreasonably withheld, it being agreed that the Agent and the Borrower must
approve or reject a proposed Eligible Assignee within seven (7) days of
receiving a written request from any Bank for such approval (provided that the
--------
request for approval, and the envelope in which it is delivered, is
conspicuously marked with the following legend: "REQUEST FOR APPROVAL -- TIME
SENSITIVE -- MUST RESPOND WITHIN SEVEN (7) DAYS") and if the Agent or the
Borrower fails to respond within such seven (7) day period, such request for
approval shall be deemed approved by the Agent or the Borrower, or both, as the
case may be, (b) each such assignment shall be of a constant, and not a varying,
percentage of all the assigning Bank's rights and obligations under this
Agreement, (c) subject to the provisions of (S)2.3 hereof, each Bank shall have
at all times an amount of its Commitment of not less than $10,000,000 and (d)
the parties to such assignment shall execute and deliver to the Agent, for
recording in the Register (as hereinafter defined), an assignment and
assumption, substantially in the form of Exhibit F hereto (an "Assignment and
---------
Assumption"), together with any Notes subject to such assignment. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Assumption, which effective date shall be at
least five (5) Business Days after the execution thereof, (i) the assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Assumption, have the rights and obligations of a Bank hereunder
and thereunder, and (ii) the assigning Bank shall, to the extent provided in
such assignment and upon payment to the Agent of the registration fee referred
to in (S)19.3, be released from its obligations under this Agreement. Any such
Assignment and Assumption shall run to the benefit of the Borrower and a copy of
any such Assignment and Assumption shall be delivered by the Assignor to the
Borrower.
(106)
(S)19.2. Certain Representations and Warranties; Limitations; Covenants.
--------------------------------------------------------------
By executing and delivering an Assignment and Assumption, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows: (a) other than the representation and warranty that it is
the legal and beneficial owner of the interest being assigned thereby free and
clear of any adverse claim, the assigning Bank makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto; (b) the assigning Bank makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower and its Subsidiaries or any Guarantor or any
other Person primarily or secondarily liable in respect of any of the
Obligations, or the performance or observance by the Borrower and its
Subsidiaries or any Guarantor or any other Person primarily or secondarily
liable in respect of any of the Obligations of any of their obligations under
this Agreement or any of the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (c) such assignee confirms that
it has received a copy of this Agreement, together with copies of the most
recent financial statements referred to in (S)6.4 and (S)7.4 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Assumption; (d) such
assignee will, independently and without reliance upon the assigning Bank, the
Agent or any other Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (e) such assignee represents
and warrants that it is an Eligible Assignee; (f) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement and the other Loan Documents as are delegated
to the Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto; (g) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Bank; (h) such assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Assumption; and (i) such assignee acknowledges that it has made
arrangements with the assigning Bank satisfactory to such assignee with respect
to its pro rata share of Letter of Credit Fees in respect of outstanding Letters
of Credit.
(S)19.3. Register. The Agent shall maintain a copy of each Assignment
--------
and Assumption delivered to it and a register or similar list (the "Register")
for the recordation of the names and addresses of the Banks and the Commitment
Percentages of, and principal amount of the Loans owing to, the Banks from time
to time. The entries in the Register shall be conclusive, in the absence of
(107)
manifest error, and the Borrower, the Agent and the Banks may treat each Person
whose name is recorded in the Register as a Bank hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
and the Banks at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Bank agrees to pay to the
Agent a registration fee in the sum of $2,500.
(S)19.4. New Notes. Upon its receipt of an Assignment and Assumption
---------
executed by the parties to such assignment, together with each Note subject to
such assignment, the Agent shall (a) record the information contained therein in
the Register, and (b) give prompt notice thereof to the Borrower and the Banks
(other than the assigning Bank). Within five (5) Business Days after receipt of
such notice, the Borrower, at its own expense, (i) shall execute and deliver to
the Agent, in exchange for each surrendered Note, a new Note to the order of
such Eligible Assignee in an amount equal to the amount assumed by such Eligible
Assignee pursuant to such Assignment and Assumption and, if the assigning Bank
has retained some portion of its obligations hereunder, a new Note to the order
of the assigning Bank in an amount equal to the amount retained by it hereunder
and (ii) shall deliver an opinion from counsel to the Borrower in substantially
the form delivered on the Closing Date pursuant to (S)11.7 as to such new Notes.
Such new Notes shall provide that they are replacements for the surrendered
Notes, shall be in an aggregate principal amount equal to the aggregate
principal amount of the surrendered Notes, shall be dated the effective date of
such Assignment and Assumption and shall otherwise be in substantially the form
of the assigned Notes. The surrendered Notes shall be cancelled and returned to
the Borrower.
(S)19.5. Participations. Each Bank may sell participations to one or
--------------
more banks or other entities in all or a portion of such Bank's rights and
obligations under this Agreement and the other Loan Documents; provided that (a)
--------
each such participation shall be in an amount of not less than $10,000,000, (b)
any such sale or participation shall not affect the rights and duties of the
selling Bank hereunder to the Borrower and the Agent and the Bank shall continue
to exercise all approvals, disapprovals and other functions of a Bank, (c) the
only rights granted to the participant pursuant to such participation
arrangements with respect to waivers, amendments or modifications of, or
approvals under, the Loan Documents shall be the rights to approve waivers,
amendments or modifications that would reduce the principal of or the interest
rate on any Loans, extend the term or increase the amount of the Commitment of
such Bank as it relates to such participant, reduce the amount of any fees to
which such participant is entitled or extend any regularly scheduled payment
date for principal or interest, and (d) no participant shall have the right to
grant further participations or assign its rights, obligations or interests
under such participation to other Persons without the prior written consent of
the Agent.
(108)
(S)19.6. Pledge by Bank. Notwithstanding any other provision of this
--------------
Agreement, any Bank at no cost to the Borrower may at any time pledge all or any
portion of its interest and rights under this Agreement (including all or any
portion of its Notes) to any of the twelve Federal Reserve Banks organized under
(S)4 of the Federal Reserve Act, 12 U.S.C. (S)341. No such pledge or the
enforcement thereof shall release the pledgor Bank from its obligations
hereunder or under any of the other Loan Documents.
(S)19.7. No Assignment by Borrower. The Borrower shall not assign or
-------------------------
transfer any of its rights or obligations under any of the Loan Documents
without prior Unanimous Bank Approval.
(S)19.8. Disclosure. The Borrower agrees that, in addition to
----------
disclosures made in accordance with standard banking practices, any Bank may
disclose information obtained by such Bank pursuant to this Agreement to
assignees or participants and potential assignees or participants hereunder.
Any such disclosed information shall be treated by any assignee or participant
with the same standard of confidentiality set forth in (S)7.10 hereof.
(S)19.9. Syndication. The Borrower acknowledges that the Agent intends,
-----------
and shall have the right, by itself or through its Affiliates, to syndicate or
enter into co-lending arrangements with respect to the Loans and the Total
Commitment pursuant to this (S)19, and the Borrower agrees to cooperate with the
Agent's and its Affiliate's syndication and/or co-lending efforts, such
cooperation to include, without limitation, the provision of information
reasonably requested by potential syndicate members.
(S)20. NOTICES, ETC. Except as otherwise expressly provided in this
------------
Agreement, all notices and other communications made or required to be given
pursuant to this Agreement or the Notes or any Letter of Credit Applications
shall be in writing and shall be delivered in hand, mailed by United States
registered or certified first class mail, postage prepaid, sent by overnight
courier, or sent by facsimile and confirmed by delivery via courier or postal
service, addressed as follows:
(a) if to the Borrower or any Guarantor, at Beacon Properties
Corporation, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, President, with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇, Procter
& ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Esq., Goulston & Storrs, P.C., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-
3333, or to such other address for notice as the Borrower or any Guarantor shall
have last furnished in writing to the Agent;
(109)
(b) if to the Agent, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, or such other address for notice as the
Agent shall have last furnished in writing to the Borrower, with a copy to ▇▇▇▇
▇. ▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address for notice as the Agent shall last
have furnished in writing to the Person giving the notice; and
(c) if to any Bank, at such Bank's address set forth on Schedule 1.3
------------
hereto, or such other address for notice as such Bank shall have last furnished
in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to the party to which it is directed, at the time of the receipt
thereof by such party or the sending of such facsimile and (ii) if sent by
registered or certified first-class mail, postage prepaid, on the third Business
Day following the mailing thereof.
(S)21. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE. THIS
--------------------------------------------------
AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SUCH COMMONWEALTH (EXCLUDING THE LAWS APPLICABLE TO
CONFLICTS OR CHOICE OF LAW). EACH OF THE BORROWER AND THE GUARANTORS AGREES
THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS
SITTING IN SUFFOLK COUNTY OR ANY FEDERAL COURT SITTING IN THE EASTERN DISTRICT
OF MASSACHUSETTS AND CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS
AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER OR THE
GUARANTORS BY MAIL AT THE ADDRESS SPECIFIED IN (S)20. THE BORROWER AND EACH OF
THE GUARANTORS HEREBY WAIVE ANY OBJECTION THAT EITHER OF THEM MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT COURT.
(S)22. HEADINGS. The captions in this Agreement are for convenience of
--------
reference only and shall not define or limit the provisions hereof.
(110)
(S)23. COUNTERPARTS. This Agreement and any amendment hereof may be
------------
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, and all of
which together shall constitute one instrument. In proving this Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
(S)24. ENTIRE AGREEMENT, ETC. The Loan Documents and any other
---------------------
documents executed in connection herewith or therewith express the entire
understanding of the parties with respect to the transactions contemplated
hereby. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except as provided in (S)26.
(S)25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS. EXCEPT TO THE
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EXTENT EXPRESSLY PROHIBITED BY LAW, THE BORROWER AND EACH OF THE GUARANTORS
HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION
OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE
REVOLVING CREDIT NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE BORROWER AND
EACH OF THE GUARANTORS HEREBY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO CLAIM OR
RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES, INCLUDING ANY DAMAGES PURSUANT TO M.G.L. C.93A ET
SEQ. EACH OF THE BORROWER AND THE GUARANTORS (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK OR THE AGENT HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH BANK OR THE AGENT WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGE THAT THE
AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN.
(S)26. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as otherwise
----------------------------------
expressly provided in this Agreement, any consent or approval required or
permitted by this Agreement may be given, and any term of this Agreement or of
any of the other Loan Documents may be amended, and the performance or
observance by the Borrower or any Guarantor of any terms of this Agreement or
the other Loan Documents or the continuance of any default,
(111)
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 Majority Banks.
Notwithstanding the foregoing, Unanimous Bank Approval shall be required
for any amendment, modification or waiver of this Agreement that:
(i) reduces or forgives any principal of any unpaid Loan
or any interest thereon (including any interest "breakage" costs)
or any fees due any Bank hereunder, or permits any prepayment not
otherwise permitted hereunder; or
(ii) changes the unpaid principal amount of, or the rate
of interest on, any Loan; or
(iii) changes the date fixed for any payment of principal
of or interest on any Loan (including, without limitation, any
extension of the Maturity Date) or any fees payable hereunder; or
(iv) changes the amount of any Bank's Commitment (other
than pursuant to an assignment permitted under (S)19.1 hereof) or
increases the amount of the Total Commitment; or
(v) amends any of the covenants contained in (S)9.1
through (S)9.7, inclusive, hereof; or
(vi) releases or reduces the liability of any Guarantor
pursuant to its Guaranty or (S)28 hereof; or
(vii) modifies any provision herein or in any other Loan
Document which by the terms thereof expressly requires Unanimous
Bank Approval; or
(viii) amends any of the provisions governing funding
contained in (S)2 hereof; or
(ix) changes the rights, duties or obligations of the
Agent specified in (S)15 hereof (provided that no amendment or
--------
modification to such (S)15 or to the fee payable to the Agent
under this Agreement may be made without the prior written
consent of the Agent); or
(112)
(x) changes the definitions of Majority Banks or
Unanimous Bank Approval.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Agent or the Banks or any Bank in exercising any right shall
operate as a waiver thereof or otherwise be prejudicial to such right or any
other rights of the Agent or the Banks. No notice to or demand upon the
Borrower shall entitle the Borrower to other or further notice or demand in
similar or other circumstances.
(S)27. SEVERABILITY. The provisions of this Agreement are severable,
------------
and if any one clause or provision hereof shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Agreement in
any jurisdiction.
(S)28. LIMITED RECOURSE AGAINST BPC.
----------------------------
(a) Notwithstanding anything to the contrary contained in this
Agreement, in the Notes or in any of the other Loan Documents, but subject to
subparagraphs (b) and (c) below, (i) in no event shall any of the general or
limited partners of the Borrower have any personal liability for the obligations
of the Borrower or of any Subsidiary Guarantor hereunder, under the Notes or
under any of the other Loan Documents, and (ii) the liability of BPC in its own
capacity hereunder and under any of the other Loan Documents to which it is a
party, and in its capacity as a direct or indirect partner or member of any
Subsidiary Guarantor, shall be limited to its interest in the Borrower, and the
Agent and the Banks shall have no recourse to any other assets of BPC.
(b) Notwithstanding the provisions of subparagraph (a) above,
BPC, both in its capacity as the general partner of the Borrower and in its
capacity as a Guarantor, shall be and remain liable with full recourse for the
obligations of the Borrower hereunder, under the Notes and under the other Loan
Documents, and for the obligations of BPC hereunder and under the Loan Documents
to which BPC is a party, for the following acts and omissions, to the extent
described (the "Non-Recourse Carve-Outs"):
(113)
Acts and Omissions Liability
------------------ ---------
(i) BPC shall hereafter voluntarily or To the full extent of the Net
involuntarily fail for any cause or Proceeds not so contributed unless
reason whatsoever to contribute to the and until BPC in fact contributes
Borrower the Net Proceeds (as all of such Net Proceeds to the
hereinafter defined) of any capital Borrower;
raised by BPC (from a public offering
of shares of stock of BPC, other
public offerings of securities or any
other capital transaction entered into
by BPC) within three (3) Business Days
of BPC's receipt thereof,
(ii) BPC shall hereafter voluntarily or To the full extent of such funds
involuntarily fail for any cause or not paid over to the Borrower
reason whatsoever to pay over to the unless and until BPC in fact pays
Borrower any funds received by BPC for over all of such funds to the
the account of the Borrower (whether Borrower;
such funds are received by BPC in its
capacity as the general partner of the
Borrower, as a trustee for the
benefit of the Borrower or otherwise)
within three (3) Business Days of
BPC's receipt thereof,
(iii) The Borrower or BPC shall misapply any To the extent of such
security deposits attributable to any misapplication;
of the Real Estate Assets,
(iv) The Borrower or BPC shall commit (x) To the extent of any loss, claim,
any fraud or willful misrepresentation liability, damage, expense or cost
or (y) an intentional act of resulting from any of the foregoing
destruction with respect to any of the matters referred to in this clause
Real Estate Assets, (iv); and/or
(114)
(v) With respect to the violation of any To the extent of any loss, claim,
Environmental Law, liability, damage, expense or cost
resulting from any such violation.
As used herein, the "Net Proceeds" of any capital raised by BPC shall mean the
gross proceeds thereof received by BPC less any bona fide third party expenses
paid or incurred by BPC in connection therewith (including, without limitation,
any underwriter's discount in connection with a public offering).
(c) The provisions of this Section 28 shall not, however, limit
the liability of BPC under its Guaranty, subject to the limitations of liability
provided therein.
(S)29. TRANSITIONAL ARRANGEMENTS.
-------------------------
(S)29.1. Original Credit Agreement Superseded. This Agreement shall
------------------------------------
supersede the Original Credit Agreement in its entirety, except as provided in
this (S)29. On the Closing Date, the rights and obligations of the parties
under the Original Credit Agreement and the "Notes" as defined therein shall be
subsumed within and be governed by this Agreement and the Revolving Credit
Notes; provided, however, that any of the "Revolving Credit Loans" (as defined
-------- -------
in the Original Credit Agreement) outstanding under the Original Credit
Agreement on the Closing Date shall, for purposes of this Agreement, be
Revolving Credit Loans hereunder.
(S)29.2. Return and Cancellation of Notes. Upon its receipt of the
--------------------------------
Revolving Credit Notes to be delivered hereunder on the Closing Date, each Bank
will promptly return to the Borrower, marked "Cancelled", the notes of the
Borrower held by such Bank pursuant to the Original Credit Agreement.
(S)29.3. Interest and Fees Under Original Credit Agreement. All
-------------------------------------------------
interest and all commitment, facility and other fees and expenses owing or
accruing under or in respect of the Original Credit Agreement shall be
calculated as of the Closing Date (prorated in the case of any fractional
periods), and shall be paid on the Closing Date in accordance with the method
specified in the Original Credit Agreement, as if the Original Credit Agreement
were still in effect.
(115)
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
a sealed instrument as of the date first set forth above.
BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
BANKBOSTON, N.A.
individually and as Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
[remainder of signature page left blank intentionally]
(116)
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ ▇. ▇. ▇▇▇▇ III
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Name: ▇. ▇. ▇▇▇▇ III
Title: Vice President
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Vice President Assistant Vice President
(117)
MELLON BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
USTRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Exec. Vice Pres.
COMERICA BANK.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Account Officer
UNION BANK OF CALIFORNIA, N.A.
By: ________________________________________
Name:
Title:
(118)