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AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
dated as of March 27, 1998
among
CABOT INDUSTRIAL PROPERTIES, L.P.,
as Borrower,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Bank and as Lead Agent for the Banks,
BAYERISCHE HYPOTHEKEN- UND WECHSEL-BANK AKTIENGESELLSCHAFT NEW YORK BRANCH,
as Bank and as Managing Agent,
PNC BANK, N.A.,
as Bank and as Managing Agent,
FIRST UNION NATIONAL BANK,
as Bank and as Co-Agent,
SOCIETE GENERALE,
as Bank and as Co-Agent,
FLEET NATIONAL BANK,
as Bank and as Documentation Agent
and
THE BANKS LISTED HEREIN,
as Banks
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS............................................. 2
SECTION 1.1. Definitions............................... 2
SECTION 1.2. Accounting Terms and Determinations....... 26
SECTION 1.3. Types of Borrowings....................... 26
ARTICLE II
THE CREDITS............................................. 26
SECTION 2.1. Commitments to Lend....................... 26
SECTION 2.2. Notice of Borrowing....................... 29
SECTION 2.3. Notice to Banks; Funding of Loans......... 30
SECTION 2.4. Notes..................................... 31
SECTION 2.5. Maturity of Loans......................... 32
SECTION 2.6. Interest Rates............................ 32
SECTION 2.7. Fees...................................... 33
SECTION 2.8. Mandatory Termination..................... 35
SECTION 2.9. Mandatory Prepayment...................... 35
SECTION 2.10. Optional Prepayments; Cancellation of
Commitments............................... 36
SECTION 2.11. General Provisions as to Payments......... 38
SECTION 2.12. Funding Losses............................ 38
SECTION 2.13. Computation of Interest and Fees.......... 39
SECTION 2.14. Method of Electing Interest Rates......... 39
ARTICLE III
CONDITIONS.............................................. 41
SECTION 3.1. Closing................................... 41
SECTION 3.2. Borrowings................................ 43
SECTION 3.3. New Acquisitions and Additional
Real Property Assets...................... 44
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.......................... 46
SECTION 4.1. Existence and Power....................... 46
SECTION 4.2. Power and Authority....................... 46
SECTION 4.3. No Violation.............................. 47
SECTION 4.4. Financial Information..................... 47
SECTION 4.5. Litigation................................ 47
SECTION 4.6. Compliance with ERISA..................... 48
SECTION 4.7 Environmental Compliance.................. 48
SECTION 4.8. Taxes..................................... 49
SECTION 4.9. Full Disclosure........................... 49
SECTION 4.10. Solvency.................................. 49
SECTION 4.11. Use of Proceeds; Margin Regulations....... 49
SECTION 4.12. Governmental Approvals.................... 50
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SECTION 4.13. Investment Company Act; Public Utility
Holding Company Act....................... 50
SECTION 4.14. Closing Date Transactions................. 50
SECTION 4.15. Representations and Warranties in Loan
Documents................................. 50
SECTION 4.16. Patents, Trademarks, etc.................. 50
SECTION 4.17. No Default................................ 51
SECTION 4.18. Licenses, etc............................. 51
SECTION 4.19. Compliance With Law....................... 51
SECTION 4.20. No Burdensome Restrictions................ 51
SECTION 4.21. Brokers' Fees............................. 51
SECTION 4.22. Labor Matters............................. 52
SECTION 4.23. Organizational Documents.................. 52
SECTION 4.25. Principal Offices......................... 52
SECTION 4.26 REIT Status............................... 52
SECTION 4.27 Ownership of Property..................... 52
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS...................... 53
SECTION 5.1. Information............................... 53
SECTION 5.2. Payment of Obligations.................... 57
SECTION 5.3. Maintenance of Property; Insurance........ 57
SECTION 5.4. Conduct of Business....................... 58
SECTION 5.5. Compliance with Laws...................... 58
SECTION 5.6. Inspection of Property, Books and Records. 58
SECTION 5.7. Existence................................. 58
SECTION 5.8. Financial Covenants....................... 58
SECTION 5.9. Restriction on Fundamental Changes;
Operation and Control..................... 61
SECTION 5.11. Affiliate Transactions.................... 62
SECTION 5.12. Fiscal Year; Fiscal Quarter............... 62
SECTION 5.13. Margin Stock.............................. 62
SECTION 5.14. Use of Proceeds........................... 62
SECTION 5.15. Interest Rate Protection.................. 63
SECTION 5.16 Liens; Release of Liens................... 63
SECTION 5.17. Sale of Unencumbered Asset Pool
Properties................................ 64
SECTION 5.18. Development Activities.................... 64
SECTION 5.19. REIT Status............................... 64
ARTICLE VI
DEFAULTS................................................ 65
SECTION 6.1. Events of Default ........................ 65
SECTION 6.2. Rights and Remedies....................... 68
SECTION 6.3. Notice of Default......................... 68
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ARTICLE VII
THE LEAD AGENT.......................................... 69
SECTION 7.1. Appointment and Authorization............. 69
SECTION 7.2. Lead Agent and Affiliates................. 69
SECTION 7.3. Action by Lead Agent...................... 69
SECTION 7.4. Consultation with Experts................. 69
SECTION 7.5. Liability of Lead Agent................... 69
SECTION 7.6. Indemnification........................... 70
SECTION 7.7. Credit Decision........................... 70
SECTION 7.8. Successor Lead Agent...................... 70
SECTION 7.9. Lead Agent's Fee.......................... 71
SECTION 7.10. Copies of Notices......................... 71
ARTICLE VIII
CHANGE IN CIRCUMSTANCES................................. 71
SECTION 8.1. Basis for Determining Interest Rate
Inadequate or Unfair...................... 71
SECTION 8.2. Illegality................................ 72
SECTION 8.3. Increased Cost and Reduced Return......... 72
SECTION 8.4. Taxes..................................... 74
SECTION 8.5. Base Rate Loans Substituted for Affected
Euro-Dollar Loans......................... 77
ARTICLE IX
MISCELLANEOUS........................................... 77
SECTION 9.1. Notices................................... 77
SECTION 9.2. No Waivers................................ 78
SECTION 9.3. Expenses; Indemnification................. 78
SECTION 9.4. Sharing of Set-Offs....................... 79
SECTION 9.5. Amendments and Waivers.................... 80
SECTION 9.6. Successors and Assigns.................... 81
SECTION 9.7. Governing Law; Submission to Jurisdiction. 83
SECTION 9.8. Marshaling; Recapture..................... 84
SECTION 9.9. Counterparts; Integration; Effectiveness.. 84
SECTION 9.10. WAIVER OF JURY TRIAL...................... 85
SECTION 9.11. Survival.................................. 85
SECTION 9.12. Domicile of Loans......................... 85
SECTION 9.13. Limitation of Liability................... 85
Exhibit A - Form of Note
Exhibit B - Unencumbered Asset Pool Properties
Exhibit C - Assignment and Assumption Agreement
Schedule 4.27 - Real Property Assets
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AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of March
27, 1998, among CABOT INDUSTRIAL PROPERTIES, L.P. (the "Borrower"), ▇▇▇▇▇▇
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GUARANTY TRUST COMPANY OF NEW YORK, as Bank and as Lead Agent for the Banks,
BAYERISCHE HYPOTHEKEN- UND WECHSEL-BANK AKTIENGESELLSCHAFT NEW YORK BRANCH, as
Bank and as Managing Agent, PNC BANK, N.A., as Bank and as Managing Agent, FIRST
UNION NATIONAL BANK, as Bank and as Co-Agent, SOCIETE GENERALE, as Bank and as
Co-Agent, FLEET NATIONAL BANK, as Bank and as Documentation Agent and the BANKS
listed on the signature pages hereof (the "Banks").
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W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Lead Agent and as a Bank, entered into the Revolving Credit Agreement (the
"Existing Credit Agreement"), dated as of March 16, 1998 (the "Initial Closing
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Date"); and
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WHEREAS, the parties hereto have agreed to amend and restate the terms
and conditions contained in the Existing Credit Agreement in their entirety as
hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
I. The Existing Credit Agreement is hereby modified so that all of
the terms and conditions of the aforesaid Existing Credit Agreement shall be
restated in their entirety as set forth herein, and the Borrower agrees to
comply with and be subject to all of the terms, covenants and conditions of this
Agreement.
II. This Agreement shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and assigns, and shall be
deemed to be effective as of the date hereof.
III. Any reference in the Notes, the Guaranty, any other Loan
Document or any other document executed in connection with this Agreement to the
Existing Credit Agreement shall be deemed to refer to this Agreement.
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein, have the
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following meanings:
"Adjusted London Interbank Offered Rate" has the meaning set forth in
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Section 2.6(c).
"Adjustment Date" shall mean the first date that the Borrower (or, as
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appropriate, the Guarantor) receives an Investment Grade Rating from at least
two (2) Rating Agencies, at least one (1) of which shall be either S&P or
▇▇▇▇▇'▇.
"Administrative Questionnaire" means, with respect to each Bank, an
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administrative questionnaire in the form prepared by the Lead Agent and
submitted to the Lead Agent (with a copy to the Borrower) duly completed by such
Bank.
"Affiliate" means, with respect to any specified Person, any other
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Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities or other
beneficial interest, by contract or otherwise; and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Agreement" means this Amended and Restated Revolving Credit Agreement
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as the same may from time to time hereafter be modified, supplemented or
amended.
"Annual EBITDA" means, as of the last day of each calendar quarter, an
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amount equal to (i) total revenues relating to all Real Property Assets of the
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Borrower, the Guarantor and their Consolidated Subsidiaries or attributable to
the Borrower's or the Guarantor's interest in Minority Holdings for the previous
four (4) consecutive calendar quarters including the quarter then ended,
calculated in accordance with GAAP, plus (ii) interest and other income of the
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Borrower, the Guarantor and their Consolidated Subsidiaries, including, without
limitation, real estate service revenues, for such period, less (iii) total
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operating expenses and other expenses relating to such Real Property Assets and
attributable to the Borrower's and the Guarantor's interest in Minority
Holdings for such period (other than interest, income taxes, depreciation,
amortization, and other non-cash items), less (iv) total operating expenses
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(including general overhead expenses) and other expenses of the Borrower, the
Guarantor and their Consolidated Subsidiaries and attributable to the Borrower's
and the Guarantor's interest in Minority Holdings (other than interest, taxes,
depreciation, amortization and other non-cash items), for such period.
"Applicable Interest Rate" means the lesser of (x) the rate at which
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the interest rate applicable to any floating rate Debt could be fixed, at the
time of calculation, by the Borrower entering into an unsecured interest
rate swap agreement (or, if such rate is incapable of being fixed by entering
into an unsecured interest rate swap agreement at the time of calculation, a
reasonably determined fixed rate equivalent), and (y) the rate at which the
interest rate applicable to such floating rate Debt is actually capped, at the
time of calculation, if the Borrower has entered into an interest rate cap
agreement with respect thereto or if the documentation for such Debt contains a
cap.
"Applicable Lending Office" means, with respect to any Bank, (i) in
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the case of its Base Rate Loans, its Domestic Lending Office and (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Applicable Margin" means, prior to the Adjustment Date, with respect
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to each Euro-Dollar Loan, the respective percentages per annum determined, at
any time, based on the range into which the Total Debt Ratio then falls, in
accordance with the table set forth below:
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Total Debt Ratio Applicable Margin for Euro-
Dollar Loans (% per annum)
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less than 15% 0.75%
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equal to or greater than 1.00%
15% but less than 30%
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equal to or greater than 1.10%
30% but less than 40%
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equal to or greater than 1.25%
40% but less than 50%
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From and after the Adjustment Date, the Applicable Margin with respect to each
Euro-Dollar Loan shall mean the respective percentages per annum determined, at
any time, based on the range into which the Borrower's Credit Rating (if any)
then falls, in accordance with the table set forth below. Any change in the
Borrower's Credit Rating shall be effective immediately as of the date on which
any of the Rating Agencies announces a change in the Borrower's Credit Rating or
the date on which the Borrower (or, as applicable, the Guarantor) has no credit
rating, whichever is applicable. In the event that the Borrower (or, as
applicable, the Guarantor) receives two (2) credit ratings that are not
equivalent, the Applicable Margin shall be determined by the lower of such two
(2) credit ratings. In the event that Borrower (or, as applicable, the
Guarantor) receives more than two (2) credit ratings and such credit ratings are
not equivalent, the Applicable Margin shall be determined by the lower of the
two (2) highest ratings, provided that each of such two (2) highest ratings
shall be Investment Grade Ratings and at least one of which shall be an
Investment Grade Rating from S&P or ▇▇▇▇▇'▇.
Borrower's Credit Rating Applicable Margin for Euro-
(S&P/▇▇▇▇▇'▇ Ratings) Dollar Loans (% per annum)
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BBB/Baa2 (or better) 1.00%
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BBB-/Baa3 1.125%
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Less than Investment Grade 1.375%
or no rating
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"Approved Uses" has the meaning set forth in Section 5.14.
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"Assignee" has the meaning set forth in Section 9.6(c).
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"Available Facility" means, at any particular time, an amount equal to
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the lesser of (x) the aggregate Commitments then outstanding and (y) fifty (50%)
percent of the then Unencumbered Asset Pool Properties Value.
"Bank" means each bank listed on the signature pages hereof, each
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Assignee which becomes a Bank pursuant to Section 9.6(c), and their respective
successors.
"Bankruptcy Code" means Title 11 of the United States Code, entitled
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"Bankruptcy", as amended from time to time, and any successor statute or
statutes.
"Base Rate" means, for any day, a rate per annum equal to the higher
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of (i) the Prime Rate for such day and (ii) the sum of the Federal Funds Rate
plus 0.5%.
"Base Rate Borrowing" means a Borrowing comprised of Base Rate Loans.
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"Base Rate Loan" means a Loan to be made by a Bank as a Base Rate Loan
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in accordance with the applicable Notice of Borrowing or pursuant to Article
VIII.
"Benefit Arrangement" means at any time an employee benefit plan
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within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means Cabot Industrial Properties, L.P., a Delaware limited
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partnership, and its successors.
"Borrower's Credit Rating" means the rating assigned by the Rating
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Agencies to the Guarantor's or the Borrower's senior unsecured long term
indebtedness.
"Borrowing" means a borrowing hereunder consisting of Loans made to
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the Borrower at the same time by the Banks pursuant to Article II. A Borrowing
is a "Domestic Borrowing" if such Loans are Base Rate Loans or
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5
Swing Loans, a "Swing Borrowing" if such Loans are Swing Loans or a "Euro-Dollar
--------------- -----------
Borrowing" if such Loans are Euro-Dollar Loans.
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"Capital Expenditures" means, for any period, without duplication, the
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sum of all expenditures (whether paid in cash or accrued as a liability) by the
Borrower or the Guarantor which are capitalized on the consolidated balance
sheet of the Borrower or the Guarantor in conformity with GAAP, but less (i) all
capitalized expenditures made with respect to the acquisition by the Borrower,
the Guarantor or their Consolidated Subsidiaries of any interest in real
property within nine (9) months after the date such interest in real property is
acquired and (ii) capital expenditures made from the proceeds of insurance or
condemnation awards (or payments in lieu thereof) or indemnity payments received
during such period by Borrower, the Guarantor or any of their Consolidated
Subsidiaries from third parties.
"Cash or Cash Equivalents" means (i) cash, (ii) direct obligations of
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the United States Government, including, without limitation, treasury bills,
notes and bonds, (iii) interest bearing or discounted obligations of Federal
agencies and Government sponsored entities or pools of such instruments offered
by banks rated AA or better by S&P or Aa2 or better by ▇▇▇▇▇'▇ at the time of
acquisition thereof and dealers, including, without limitation, Federal Home
Loan Mortgage Corporation participation sale certificates, Government National
Mortgage Association modified pass-through certificates, Federal National
Mortgage Association bonds and notes, and Federal Farm Credit System securities,
(iv) time deposits, domestic and Eurodollar certificates of deposit, banker's
acceptances, commercial paper rated at least A-1 by S&P and P-1 by ▇▇▇▇▇'▇ at
the time of acquisition thereof, and/or guaranteed by an entity with an Aa2
rating by ▇▇▇▇▇'▇, an AA rating by S&P, or better rated credit at the time of
acquisition thereof, floating rate notes, other money market instruments and
letters of credit each issued by banks which have a long-term debt rating of at
least AA by S&P or Aa2 by ▇▇▇▇▇'▇ at the time of acquisition thereof, (v)
obligations of domestic corporations, including, without limitation, commercial
paper, bonds, debentures, and loan participations, each of which is rated at
least AA by S&P, and/or Aa2 by ▇▇▇▇▇'▇, and/or unconditionally guaranteed by an
entity
6
with an AA rating by S&P, an Aa2 rating by ▇▇▇▇▇'▇, or better rated credit at
the time of acquisition thereof, (vi) obligations issued by states and local
governments or their agencies, rated at least MIG-1 by ▇▇▇▇▇'▇ and/or SP-1 by
S&P at the time of acquisition thereof and/or supported by an irrevocable letter
of credit of a bank with a long-term debt rating of at least AA by S&P or Aa2 by
▇▇▇▇▇'▇ at the time of acquisition thereof, (vii) repurchase agreements with
major banks and primary government securities dealers fully secured by U.S.
Government or agency collateral equal to or exceeding the principal amount on a
daily basis and held in safekeeping, (viii) real estate loan pool
participations, guaranteed by an entity with an AA rating by S&P or an Aa2
rating by ▇▇▇▇▇'▇, or better rated credit at the time of acquisition thereof,
and (ix) shares of any mutual fund that has its assets primarily invested in the
types of investments referred to in clauses (i) through (viii).
"Closing Date" means the date on which the Lead Agent shall have
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received the documents specified in or pursuant to Section 3.1.
"Commitment" means, with respect to each Bank, the amount committed by
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such Bank pursuant to this Agreement with respect to any Loans, as such amount
may be reduced from time to time pursuant to Section 2.10.
"Confirmation of Guaranty" means that certain Confirmation of
------------------------
Guaranty, dated as of the date hereof, made by the Guarantor to and in favor of
the Lead Agent.
"Consolidated Subsidiary" means, at any date and as to any specified
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Person, any Subsidiary or other Person which is consolidated with the specified
Person in accordance with GAAP.
"Consolidated Tangible Net Worth" means, at any date, the consolidated
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stockholders' or partners' equity of the Borrower, the Guarantor, and their
Consolidated Subsidiaries, less their Intangible Assets, all determined in
accordance with GAAP as of such date. For purposes of this definition
"Intangible Assets" means with respect to any such intangible assets, the amount
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(to the extent reflected in determining such consolidated stockholders' or
partners' equity) of (i) all write-ups after the date hereof in the book value
of any asset owned by the Borrower, the Guarantor or a Consolidated Subsidiary
(other than any write-up in connection with the IPO) and (ii) all unamortized
debt discount and expense, unamortized deferred charges, goodwill, patents,
trademarks, service marks, trade names, anticipated future benefit of tax loss
carry-forwards, copyrights, organization or developmental expenses and other
intangible assets.
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"Contingent Obligation" as to any Person means, without duplication,
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(i) any contingent obligation of such Person shown on such Person's balance
sheet in accordance with GAAP, and (ii) any obligation disclosed in the
footnotes to such Person's financial statements in accordance with GAAP,
guaranteeing partially or in whole any Debt, lease, dividend or other
obligation, exclusive of contractual indemnities (including, without limita-
tion, any indemnity or price-adjustment provision relating to the purchase or
sale of securities or other assets) and guarantees of non-monetary obligations
(other than guarantees of completion) which have not yet been called on or
quantified, of such Person or of any other Person. The amount of any Contingent
Obligation described in clause (ii) shall be deemed to be (a) with respect to
a guaranty of interest or interest and principal, or operating income
guaranty, the sum of all payments required to be made thereunder (which in the
case of an operating income guaranty shall be deemed to be equal to the debt
service for the note secured thereby), calculated at the Applicable Interest
Rate, through (i) in the case of an interest or interest and principal guaranty,
the stated date of maturity of the obligation (and commencing on the date
interest could first be payable thereunder), or (ii) in the case of an operating
income guaranty, the date through which such guaranty will remain in effect, and
(b) with respect to all guarantees not covered by the preceding clause (a), an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such guaranty is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as recorded on the balance sheet and
on the footnotes to the most recent financial statements of the Borrower and
Guarantor required to be delivered pursuant to Section 5.1 hereof.
Notwithstanding anything contained herein to the contrary, guarantees of
completion shall not be deemed to be Contingent Obligations unless and until a
claim for payment or performance has been made thereunder, at which time any
such guaranty of completion shall be deemed to be a Contingent Obligation in an
amount equal to any such claim. Subject to the preceding sentence, (x) in the
case of a joint and several guaranty given by such Person and another Person
(but only to the extent such guaranty is recourse, directly or indirectly to the
Borrower or Guarantor), the amount of the guaranty shall be deemed to be 100%
thereof unless and only to the extent that such other Person has delivered Cash
or Cash Equivalents to secure all or any part of such Person's guaranteed
obligations,
8
(y) in the case of joint and several guarantees given by a Person in
whom the Borrower or Guarantor owns an interest (which guarantees are non-
recourse to the Borrower or Guarantor), to the extent the guarantees, in the
aggregate, exceed 15% of total real estate investments, the amount in excess
of 15% shall be deemed to be a Contingent Obligation of the Borrower or
Guarantor, and (z) in the case of a guaranty (whether or not joint and several)
of an obligation otherwise constituting Debt of such Person, the amount of such
guaranty shall be deemed to be only that amount in excess of the amount of the
obligation constituting Debt of such Person. Notwithstanding anything
contained herein to the contrary, "Contingent Obligations" shall not be deemed
to include guarantees of Unused Commitments or of construction loans to the
extent the same have not been drawn.
"Debt" of any Person means, without duplication, (A) as shown on such
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Person's consolidated balance sheet (i) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property and, (ii) all
indebtedness of such Person evidenced by a note, bond, debenture or similar
instrument (whether or not disbursed in full in the case of a construction
loan), (B) the face amount of all letters of credit issued for the account of
such Person and, without duplication, all unreimbursed amounts drawn thereunder,
(C) all Contingent Obligations of such Person, (D) all payment obligations of
such Person under any interest rate protection agreement (including, without
limitation, any interest rate swaps, caps, floors, collars and similar
agreements), currency swaps and similar agreements which were not entered into
specifically in connection with Debt set forth in clauses (A), (B) or (C)
hereof. For purposes of this Agreement, Debt (other than Contingent
Obligations) of the Borrower shall be deemed to include only the Borrower's or
Guarantor's pro rata share (such share being based upon the Borrower's
--- ----
percentage ownership interest) of the Debt of any Person in which the Borrower
or Guarantor, directly or indirectly, owns an interest, provided that such Debt
is nonrecourse, both directly and indirectly, to the Borrower.
"Default" means any condition or event which constitutes an Event of
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Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Domestic Business Day" means any day except a Saturday, Sunday or
---------------------
other day on which commercial banks in New York City are authorized by law to
close.
9
"Domestic Lending Office" means, as to each Bank, its office located
-----------------------
within the United States at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Domestic
Lending Office) or such other office within the United States as such Bank may
hereafter designate as its Domestic Lending Office by notice to the Borrower and
the Lead Agent; provided that no Bank shall be permitted to change its Domestic
Lending Office if as a result of such change either (i) pursuant to the
provisions of Section 8.1 or Section 8.2, Borrower would be unable to maintain
any Loans as Euro-Dollar Loans; or (ii) Borrower would be required to make any
payment to such Bank pursuant to the provisions of Section 8.3 or Section 8.4.
"Environmental Affiliate" means any partnership, joint venture, trust
-----------------------
or corporation in which an equity interest is owned by the Borrower, either
directly or indirectly.
"Environmental Claim" means any notice, claim, demand or similar
-------------------
communication (written or oral) against the Borrower, any of the Environmental
Affiliates, or Indemnitee by any Person alleging potential liability for
investigatory costs, cleanup costs, governmental response costs, natural
resources damage, property damage, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, or release, caused
by the Borrower or any of the Environmental Affiliates, into the environment, of
any material amount of Material of Environmental Concern at any location,
whether or not owned by such Person, or (ii) circumstances forming the basis of
any violation or alleged violation, by the Borrower or any of the Environmental
Affiliates, of any Environmental Law, in each case as to which would reasonably
be expected to have a Material Adverse Effect.
"Environmental Laws" means any and all federal, state, local and
------------------
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating
to the environment, the effect of the environment on human health or to Releases
of Materials of Environmental Concern into the environment, including, without
limitation, ambient air, surface water, ground water or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, Material of
Environmental Concern or hazardous wastes or the clean-up or other remediation
thereof.
10
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary of the Borrower and
-----------
all members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower or any Subsidiary of the Borrower, are treated as a single employer
under Section 414 of the Internal Revenue Code.
"Euro-Dollar Borrowing" has the meaning set forth in Section 1.3.
---------------------
"Euro-Dollar Business Day" means any Domestic Business Day on which
------------------------
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
--------------------------
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Euro-
Dollar Lending Office) or such other office, branch or affiliate of such Bank as
it may hereafter designate as its Euro-Dollar Lending Office by notice to the
Borrower and the Lead Agent; provided that no Bank shall be permitted to
change its Euro-Dollar Lending Office if as a result of such change either (i)
pursuant to the provisions of Section 8.1 or Section 8.2, Borrower would be
unable to maintain any Loans as Euro-Dollar Loans; or (ii) Borrower would be
required to make any payment to such Bank pursuant to the provisions of Sections
8.3 or Section 8.4.
"Euro-Dollar Loan" means a Loan to be made by a Bank as a Euro-Dollar
----------------
Loan in accordance with the applicable Notice of Borrowing or Notice of
Interest Rate Election.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
------------------------------
2.6(c).
"Event of Default" has the meaning set forth in Section 6.1.
----------------
"Federal Funds Rate" means, for any day, the rate per annum (rounded
------------------
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal
11
Reserve Bank of New York on the Domestic Business Day next succeeding such day;
provided that (i) if such day is not a Domestic Business Day, the Federal Funds
--------
Rate for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if no such rate is so published on such next succeeding Domestic
Business Day, the Federal Funds Rate for such day shall be the average rate
quoted to ▇▇▇▇▇▇ on such day for such transactions as determined by the Lead
Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
---------------------
Reserve System as constituted from time to time.
"FFO" means "funds from operations," as defined in the National
---
Association of Real Estate Investment Trusts ("NAREIT") White Paper on Funds
------
From Operations as approved by the NAREIT Board of Governors on March 3, 1995.
"FIRREA" means the Financial Institutions Reform, Recovery and
------
Enforcement Act of 1989, as amended.
"FMV Cap Rate" means 9.25% per annum.
------------
"GAAP" means generally accepted accounting principles recognized as
----
such in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession, which are
applicable to the circumstances as of the date of determination.
"Governmental Authority" means any Federal, state or local government
----------------------
or any other political subdivision thereof or agency exercising executive,
legislative, judicial, regulatory or administrative functions having
jurisdiction over the Borrower or any Real Property Asset.
"Group of Loans" means, at any time, a group of Loans consisting of
--------------
(i) all Loans which are Base Rate Loans at such time, or (ii) all Loans which
are Euro-Dollar Loans having the same Interest Period at such time; provided
--------
that, if a Loan of any particular Bank is converted to or made as a Base Rate
Loan pursuant to Section 8.2 or 8.4, such Loan shall be included in the same
Group or Groups of Loans from time to time as it would have been in if it had
not been so converted or made.
12
"Guarantor" means Cabot Industrial Trust, a Maryland real estate
---------
investment trust, and its successors.
"Guaranty" means that certain Guaranty of Payment, dated as of March
--------
16, 1998, made by the Guarantor to and in favor of the Lead Agent, as
confirmed by the Confirmation of Guaranty, as the same may from time to time
hereafter be modified, supplemented or amended.
"Indemnitee" has the meaning set forth in Section 9.3(b).
----------
"Interest Period" means: (1) with respect to each Euro-Dollar
---------------
Borrowing, the period commencing on the date of such Borrowing or of any Notice
of Interest Rate Election with respect to such Borrowing and ending one, two,
three or six months thereafter, as the Borrower may elect in the applicable
Notice of Borrowing or Notice of Interest Rate Election; provided that:
--------
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business
Day of a calendar month; and
(c) if any Interest Period includes a date on which a payment of
principal of the Loans is required to be made under Section 2.9 but does
not end on such date, then, without affecting the Borrower's liability
under Section 2.12 for any sums which, but for the application of this
subsection (c) would be due from the Borrower, (i) the principal amount (if
any) of each Euro-Dollar Loan required to be repaid on such date shall have
an Interest Period ending on such date and (ii) the remainder (if any) of
each such Euro-Dollar Loan shall have an Interest Period determined as set
forth above.
13
(2) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing or Notice of Interest Rate Election and ending 30 days
thereafter; provided that:
--------
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) if any Interest Period includes a date on which a payment of
principal of the Loans is required to be made under Section 2.9 but does
not end on such date, then (i) the principal amount (if any) of each Base
Rate Loan required to be repaid on such date shall have an Interest Period
ending on such date and (ii) the remainder (if any) of each such Base Rate
Loan shall have an Interest Period determined as set forth above.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
---------------------
amended, or any successor statute.
"Investment Grade Rating" means a rating for a Person's senior long-
-----------------------
term unsecured debt of BBB- or better from S&P, and a rating of Baa3 or better
from Moody's, if ratings from both Rating Agencies are obtained or an
equivalent rating from another nationally recognized statistical rating agency
acceptable to the Required Banks.
"IPO" means the initial public offering of common stock of the
---
Guarantor.
"Lead Agent" means ▇▇▇▇▇▇ Guaranty Trust Company of New York in its
----------
capacity as Lead Agent for the Banks hereunder, and its successors in such
capacity.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
----
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a
security interest, in respect of such asset. For the purposes of this
Agreement, each of the Borrower, the Guarantor and their Subsidiaries shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
14
"Loan" means a Base Rate Loan, a Euro-Dollar Loan or a Swing Loan and
----
"Loans" means Base Rate Loans, Euro-Dollar Loans or Swing Loans or any
-----
combination of the foregoing.
"Loan Documents" means this Agreement, the Notes, the Guaranty and any
--------------
related documents.
"London Interbank Offered Rate" has the meaning set forth in Section
-----------------------------
2.6(c).
"Mandatory Prepayment Event" has the meaning set forth in Section 2.9.
--------------------------
"Margin Stock" shall have the meaning provided such term in Regulation
------------
U and Regulation G of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse effect upon (i) the
-----------------------
business, operations, properties or assets of the Borrower and/or Guarantor or
(ii) the ability of the Borrower and/or Guarantor to perform its obligations
hereunder in all material respects, including to pay interest and principal.
"Material Plan" means at any time a Plan having aggregate Unfunded
-------------
Liabilities in excess of $5,000,000.
"Material of Environmental Concern" means and includes pollutants,
---------------------------------
contaminants, hazardous wastes, and hazardous substances, including petroleum,
its derivatives, by-products and other hydrocarbons.
"Maturity Date" has the meaning set forth in Section 2.8.
-------------
"Minority Holdings" means partnerships, limited liability companies
-----------------
and corporations, equity interests which are held or owned by the Borrower or
the Guarantor which are not consolidated with the Borrower or the Guarantor on
their consolidated financial statements.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor
-------
thereto.
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, in its
------
individual capacity.
"Multiemployer Plan" means at any time an employee pension benefit
------------------
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five (5)
15
plan years made contributions, including for these purposes any Person which
ceased to be a member of the ERISA Group during such five (5) year period.
"Net Offering Proceeds" means all cash or other assets received by the
----------------------
Borrower or the Guarantor after the date hereof as a result of the sale of
common shares of beneficial interest (other than in connection with and at the
closing of the IPO), preferred shares of beneficial interest, partnership
interests, limited liability company interests, or other ownership or equity
interests in the Borrower or the Guarantor (or evidence of indebtedness of the
Borrower or the Guarantor convertible into any of the foregoing) less customary
----
costs and discounts of issuance paid by the Borrower or the Guarantor, as the
case may be.
"Net Operating Income" means, as of any date of determination with
---------------------
respect to any Real Property Asset, Property Income for the previous four (4)
consecutive quarters (unless otherwise herein provided), including the quarter
then ended, but less Property Expenses for the previous four (4) consecutive
quarters (unless otherwise herein provided), including the quarter then ended;
provided, however, that if the date of determination is less than 45 days after
-------- -------
the last day of the preceding quarter and the Borrower has not submitted to the
Lead Agent the reports required under Section 5.1(a) or 5.1(b) hereof (as
applicable) for such preceding quarter, then, in determining Net Operating
Income, Property Income and Property Expenses for the immediately preceding
quarter shall not be included and Net Operating Income shall be determined from
Property Income and Property Expenses for the four (4) quarters prior to such
immediately preceding quarter.
"New Acquisitions" has the meaning set forth in Section 5.14.
----------------
"Non-Recourse Debt" means Debt of the Borrower, the Guarantor or their
-----------------
Consolidated Subsidiaries for which the right of recovery of the obligee thereof
is limited to recourse against the Real Property Assets securing such Debt
(subject to such limited exceptions to the non-recourse nature of such Debt such
as fraud, misappropriation, misapplication and environmental indemnities, as
are usual and customary in like transactions at the time of the incurrence of
such Debt).
"Notes" means, collectively, the promissory notes of the Borrower,
-----
substantially in the form of Exhibit A-1 hereto with respect to the Swing Lender
-----------
and Exhibit A-2 hereto with respect to any other Bank, evidencing the
-----------
obligation of the Borrower to repay the Loans and "Note" means any one of such
----
promissory notes issued hereunder.
16
"Notice of Borrowing" has the meaning set forth in Section 2.2.
-------------------
"Notice of Interest Rate Election" has the meaning set forth in
--------------------------------
Section 2.14(a).
"Obligations" means all obligations, liabilities and indebtedness of
-----------
every nature of the Borrower and Guarantor from time to time owing to any Bank
under or in connection with this Agreement or any other Loan Document.
"Outstanding Balance" means the aggregate outstanding and unpaid
-------------------
principal balance of all Loans.
"Parent" means, with respect to any Bank, any Person controlling such
------
Bank.
"Participant" has the meaning set forth in Section 9.6(b).
-----------
"Partnership Documents" means (i) that certain Second Amended and
---------------------
Restated Agreement of Limited Partnership of the Borrower, dated as of
February 4, 1998, and (ii) that certain Certificate of Limited Partnership of
the Borrower, dated as of October 3, 1997, and filed with the Secretary of State
of the State of Delaware on October 9, 1997, as amended by that certain
Certificate of Correction to the Certificate of Limited Partnership of the
Borrower, dated as of October 15, 1997, and filed with the Secretary of State of
the State of Delaware on October 14, 1997, each as the same may hereafter be
amended, restated, supplemented or otherwise modified with the consent of the
Lead Agent to the extent expressly required hereby.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
----
succeeding to any or all of its functions under ERISA.
"Permitted Liens" means (a) Liens in favor of the Borrower on all or
---------------
any part of the assets of Subsidiaries of the Borrower, provided that (i) the
Debt to which such Lien relates is held by the Borrower, (ii) such Debt is not
otherwise pledged or encumbered, and (iii) no more than 5% of the Unencumbered
Asset Pool Properties Value may be subject to any such Liens; (b) Liens to
secure the performance of statutory obligations, surety or appeal bonds,
performance bonds, completion
17
bonds, government contracts or other obligations of a like nature, including
Liens in connection with workers' compensation, unemployment insurance and other
types of statutory obligations or to secure the performance of tenders, bids,
leases, contracts (other than for the repayment of Debt) and other similar
obligations incurred in the ordinary course of business; (c) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; provided, that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (d) Liens on property of the Borrower, the Guarantor or any
Subsidiary thereof in favor of the Federal or any state government to secure
certain payments pursuant to any contract, statute or regulation; (e) easements
(including, without limitation, reciprocal easement agreements and utility
agreements), rights of way, covenants, consents, reservations, encroachments,
variations and zoning and other restrictions, charges or encumbrances (whether
or not recorded), which do not interfere materially with the ordinary conduct of
the business of the Borrower, the Guarantor or any Subsidiary thereof and which
do not materially detract from the value of the property to which they attach or
materially impair the use thereof by the Borrower, the Guarantor or any
Subsidiary thereof; (f) non-consensual Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other Liens imposed by law and
arising in the ordinary course of business, for sums not then due and payable
(or which, if due and payable, are being contested in good faith and with
respect to which adequate reserves are being maintained to the extent required
by GAAP); (g) Liens not otherwise permitted by this definition and incurred in
the ordinary course of business of any or all of the Borrower, the Guarantor or
any Subsidiary thereof with respect to obligations which do not exceed $500,000
in principal amount in the aggregate at any one time outstanding; and (h) the
interests of lessees and lessors under leases of real or personal property made
in the ordinary course of business which would not reasonably be expected to
have a Material Adverse Effect.
"Person" means an individual, a corporation, a partnership, a limited
------
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Plan" means at any time an employee pension benefit plan (other than
----
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum
18
funding standards under Section 412 of the Internal Revenue Code and either (i)
is maintained, or contributed to, by any member of the ERISA Group for employees
of any member of the ERISA Group or (ii) has at any time within the preceding
five (5) years been maintained, or contributed to, by any Person which was at
such time a member of the ERISA Group for employees of any Person which was at
such time a member of the ERISA Group.
"Prime Rate" means the rate of interest publicly announced by ▇▇▇▇▇▇
----------
in New York City from time to time as its prime rate.
"Pro-Forma Debt Service" means the amount determined by applying a
----------------------
twenty-five (25) year mortgage style amortization schedule to the Outstanding
Balance as of the last day of each calendar quarter, using an interest rate
equal to the greater of (i) the Treasury Rate plus 1.75%, and (ii) the actual
rate of interest in effect with respect to such Outstanding Balance as of the
last day of such quarter, all determined on an annualized basis.
"Property Expenses" means, when used with respect to any Real Property
-----------------
Asset, the costs of maintaining such Real Property Asset which are the
responsibility of the owner thereof and that are not paid directly by any
tenant thereof, including, without limitation, expenses for taxes, insurance,
management, repairs and maintenance, provided that if such tenant is more than
sixty (60) days in arrears in the payment of base or fixed rent, then such costs
will also constitute "Property Expenses", but excluding depreciation,
amortization and interest costs. Notwithstanding the foregoing, in determining
Property Expenses, management fees shall be deemed to be equal to the greater of
(i) the actual management fees payable with respect to the Real Property Assets
and (ii) management fees in an amount equal to 1.75% of Property Income for the
period in question.
"Property Income" means, when used with respect to any Real Property
---------------
Asset, cash rents and other cash revenues received in the ordinary course
therefrom, including, without limitation, revenues from any parking leases and
lease termination fees amortized over the remaining term of the lease for which
such termination fee was received (other than prepaid rents and revenues and
security deposits, except to the extent applied in satisfaction of tenants'
obligations for rent).
"Rating Agencies" means, collectively, S&P and Moody's, ▇▇▇▇ & ▇▇▇▇▇▇
---------------
Credit Rating Co., and Fitch Investors Service, L.P., or any successor to the
foregoing.
19
"Real Property Assets" means, as of any time, the real property assets
--------------------
owned directly or indirectly by the Borrower or the Guarantor at such time.
"Recourse Debt" shall mean Debt of the Borrower, the Guarantor or any
-------------
of their Consolidated Subsidiaries that is not Non-Recourse Debt.
"Reference Bank" means the principal London offices of ▇▇▇▇▇▇.
--------------
"Refunded Swing Loan" has the meaning set forth in Section 2.1(a).
-------------------
"Regulation U" means Regulation U of the Board of Governors of the
------------
Federal Reserve System, as in effect from time to time.
"Release" means any release, spill, emission, leaking, pumping,
-------
pouring, dumping, emptying, deposit, discharge, leaching or migration.
"Required Banks" means, at any time, Banks having more than 50% of the
--------------
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing more than 50% of the aggregate unpaid
principal amount of the Loans.
"Required Occupancy Level" means, with respect to any Unencumbered
------------------------
Asset Pool Property, that during any twelve (12) month period, no less than an
average of 85% of the rentable square feet of such Unencumbered Asset Pool
Property is occupied by tenants pursuant to written leases for which no material
default has occurred beyond any applicable notice and cure periods.
"Requirements" means all present and future laws, statutes, codes,
------------
ordinances, orders, judgments, decrees, injunctions, rules, regulations and
requirements of every Governmental Authority having jurisdiction over any Real
Property Asset and all restrictive covenants applicable to any Real Property
Asset.
"REOC" shall mean a "real estate operating company" within the meaning
----
of Regulations Section 2510.3-101(e) of the Plan Asset Regulations.
"Secured Debt" means Debt of a Person which is secured by a Lien.
------------
20
"Securities" means any stock, shares, voting trust certificates,
----------
partnership interests, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities", including, without
limitation, any "security" as such term is defined in Section 8-102 of the
Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
Obligations.
"Separate Parcel" means a Real Estate Asset that is a single, legally
---------------
subdivided, separately zoned parcel that can be legally transferred or conveyed
separate and distinct from any other Real Estate Asset without benefit of
any other Real Estate Asset.
"Solvent" means, with respect to any Person, that the fair saleable
-------
value of such Person's assets exceeds the Debts of such Person.
"S&P" means Standard & Poor's Ratings Services, a division of The
---
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"Swing Lender" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, in its
------------
capacity as the Swing Lender under the Swing Loan facility described in Section
2.1(a)(ii), and its successors in such capacity.
"Swing Loan" means a Loan made by the Swing Lender pursuant to Section
----------
2.1(a)(ii).
"Swing Loan Commitment" means the lesser of (a) $15,000,000 and (b)
---------------------
the aggregate amount of the unused Commitments, as such amount may be reduced
from time to time pursuant to Section 2.10.
"Swing Loan Refund Amount" has the meaning set forth in Section
------------------------
2.1(a)(iii).
"Subsidiary" means any corporation or other entity of which securities
----------
or other ownership interests representing either (i) ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions or (ii) a majority of the economic interest therein, are at the time
directly or indirectly owned by the Borrower or the Guarantor, as applicable.
21
"Tangible FMV" means the sum of:
------------
(w) (A) with respect to Real Property Assets owned by the Borrower,
the Guarantor or any of their Consolidated Subsidiaries for a period of at least
four (4) fiscal quarters, the quotient of Net Operating Income with respect to
Real Property Assets (and the Borrower's and the Guarantor's pro rata share of
--- ----
net operating income from the real property assets of any Minority Holdings of
the Borrower, the Guarantor or any of their Consolidated Subsidiaries)
determined as of the last day of the previous calendar quarter, less replacement
----
reserves of $.20 per square foot per annum for each Real Property Asset (and the
Borrower's and the Guarantor's pro rata share of replacement reserves for the
--- ----
real property assets of any Minority Holdings of the Borrower, the Guarantor or
their Consolidated Subsidiaries), divided by the FMV Cap Rate, and
(x) (B) with respect to Real Property Assets owned by the Borrower,
the Guarantor or any of their Consolidated Subsidiaries for a period of less
than four (4) fiscal quarters and more than one (1) fiscal quarter, the lesser
of (i) the quotient of Net Operating Income with respect to Real Property Assets
(and the Borrower's and the Guarantor's pro rata share of net operating income
--- ----
from the real property assets of any Minority Holdings of the Borrower, the
Guarantor or any of their Consolidated Subsidiaries) determined as of the last
day of the previous calendar quarter, on an annualized basis, less replacement
----
reserves of $.20 per square foot per annum for each Real Property Asset (and the
Borrower's and the Guarantor's pro rata share of replacement reserves for the
--- ----
real property assets of any Minority Holdings of the Borrower, the Guarantor
or their Consolidated Subsidiaries), divided by the FMV Cap Rate, and (ii) the
purchase price actually paid by the Borrower, the Guarantor or any of their
Consolidated Subsidiaries (as applicable) for such Real Property Asset, and
(y) (C) with respect to Real Property Assets owned by the Borrower,
the Guarantor or any of their Consolidated Subsidiaries for a period of less
than one (1) fiscal quarter, the purchase price actually paid by the Borrower,
the Guarantor or any of their Consolidated Subsidiaries (as applicable) for
such Real Property Assets, and
(z) Cash or Cash Equivalents of the Bor rower, the Guarantor and
their Consolidated Subsidiaries as of the date of determination.
22
"Term" has the meaning set forth in Section 2.8.
----
"Title Company" means a title insurance company of recognized national
-------------
standing.
"Title Commitment" means, for each Unencumbered Asset Pool Property,
----------------
an ALTA fee or leasehold title commitment or title policy issued by the Title
Company at the time of acquisition by the Borrower, the Guarantor or, if
applicable, a Subsidiary of either.
"Total Debt Ratio" means the ratio, as of the date of determination,
----------------
of (i) the sum of (x) the aggregate Debt of the Borrower, the Guarantor and
their respective Consolidated Subsidiaries and (y) the Borrower's and the
Guarantor's pro rata share of the Debt of any Minority Holdings of the Borrower
--- ----
or the Guarantor to (ii) the Tangible FMV of the Borrower, the Guarantor and
their Consolidated Subsidiaries.
"Total Debt Service" shall mean, as of the last day of each calendar
------------------
quarter, an amount equal to the sum of (i) all interest (whether accrued, paid
or capitalized) actually payable by Borrower and/or the Guarantor on their
respective Debt for the previous four (4) consecutive quarters, including the
quarter then ended, plus (ii) scheduled payments of principal on such Debt,
----
whether or not paid by the Borrower and/or the Guarantor (excluding balloon or
similar payments) for the previous four (4) consecutive quarters, including the
quarter then ended.
"Treasury Rate" means, as of any date, a rate equal to the annual
-------------
yield to maturity on the U.S. Treasury Constant Maturity Series with a ten
(10) year maturity, as such yield is reported in Federal Reserve Statistical
Release H.15 -- Selected Interest Rates, published most recently prior to the
date the applicable Treasury Rate is being determined. Such yield shall be
determined by straight line linear interpolation between the yields reported in
Release H.15, if necessary. In the event Release H.15 is no longer published,
the Lead Agent shall select, in its reasonable discretion, an alternate basis
for the determination of Treasury yield for U.S. Treasury Constant Maturity
Series with ten (10) year maturities.
"Unencumbered Asset Pool Net Operating Cash Flow" means, as of any
-----------------------------------------------
date of determination with respect to the Unencumbered Asset Pool Properties,
Property Income with respect to the Unencumbered Asset Pool Properties for the
previous four (4) consecutive quarters
23
(except as provided below), including the quarter then ended, but less (x)
Property Expenses with respect to the Unencumbered Asset Pool Properties for the
previous four (4) consecutive quarters (except as provided below), including the
quarter then ended, and (y) the greater of (i) Capital Expenditures which are
not related to new construction for the previous four (4) consecutive quarters,
including the quarter then ended, and (ii) reserves for Capital Expenditures of
$0.35 per square foot per annum for each Unencumbered Asset Pool Property;
provided, however, that if the date of determination is less than 45 days after
-------- -------
the last day of the preceding quarter and the Borrower has not submitted to the
Lead Agent the reports required under Section 5.1(a) or 5.1(b) hereof (as
applicable) for such preceding quarter, then, in determining Unencumbered Asset
Pool Net Operating Cash Flow, the Property Income, Property Expenses and Capital
Expenditures for the immediately preceding quarter shall not be included and
Unencumbered Asset Pool Net Operating Cash Flow shall be determined from
Property Income, Property Expenses and Capital Expenditures for the four (4)
quarters prior to such immediately preceding quarter. Notwithstanding the
foregoing, with respect to any Unencumbered Asset Pool Property owned by the
Borrower, the Guarantor or any of their Consolidated Subsidiaries for a period
of less four (4) fiscal quarters, but more than one (1) fiscal quarter,
Unencumbered Asset Pool Net Operating Cash Flow shall be determined in a manner
consistent with the foregoing calculation utilizing annualized Property Income,
Property Expenses and Capital Expenditures (or, if greater, reserves for Capital
Expenditures) for the relevant period of the Borrower's, the Guarantor's or any
of their Consolidated Subsidiaries' ownership of such Unencumbered Asset Pool
Property, provided such period shall be at least one (1) fiscal quarter.
"Unencumbered Asset Pool Properties" means, as of any date, the Real
----------------------------------
Property Assets listed in Exhibit B attached hereto and made a part hereof, each
---------
of which is 100% owned in fee (or leasehold in the case of assets listed as such
on Exhibit B) by the Borrower, the Guarantor or any of their wholly-owned
---------
Subsidiaries and each of which is not subject to any Lien (other than Permitted
Liens), subject to adjustment as set forth herein, together with all Real
Property Assets which have become part of the Unencumbered Asset Pool Properties
as of such date in accordance with Section 3.3.
"Unencumbered Asset Pool Properties Value" means:
----------------------------------------
(i) with respect to the Unencumbered Asset Pool Properties owned by
the Borrower, the Guarantor or
24
any of their Consolidated Subsidiaries for a period of at least four (4) fiscal
quarters, the quotient of (x) Net Operating Income with respect to the
Unencumbered Asset Pool Properties less replacement reserves of $.20 per square
foot per annum for each such Unencumbered Asset Pool Property and (y) the FMV
Cap Rate,
(ii) with respect to Unencumbered Asset Pool Properties owned by the
Borrower, the Guarantor or any of their Consolidated Subsidiaries for a period
of less than four (4) fiscal quarters and more than one (1) fiscal quarter, the
lesser of (A) the quotient of (x) Net Operating Income with respect to the
Unencumbered Asset Pool Properties on an annualized basis based upon Net
Operating Income for the period of such Person's ownership of the Unencumbered
Asset Pool Property in question less replacement reserves of $.20 per square
foot per annum for each such Unencumbered Asset Pool Property and (y) the FMV
Cap Rate and (B) the purchase price actually paid by the Borrower, the Guarantor
or any of their Consolidated Subsidiaries (as applicable) for such Unencumbered
Asset Pool Property, and
(iii) with respect to Unencumbered Asset Pool Properties owned by the
Borrower, the Guarantor or any of their Consolidated Subsidiaries for a period
of less than one (1) fiscal quarter, the purchase price actually paid by the
Borrower, the Guarantor or any of their Consolidated Subsidiaries (as
applicable) for such Unencumbered Asset Pool Property.
"Unimproved Land" means, as of any given date, Real Property Assets
---------------
upon which no material improvements have been constructed and as to which no
construction of material improvements has been or is expected to be commenced
in a material way within ninety (90) days from such date and such Real Property
Assets will continue to be deemed Unimproved Land until such time as the chief
financial officer of the Borrower shall certify to the Lead Agent that
construction of material improvements has commenced thereat in a material way.
"Unfunded Liabilities" means, with respect to any Plan at any time,
--------------------
the amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed
by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
25
"United States" means the United States of America, including the
-------------
States and the District of Columbia, but excluding its territories and
possessions.
"Unsecured Debt" means all Debt which is not secured by a Lien.
--------------
"Unsecured Debt Ratio" means, as of any date of determination, the
--------------------
ratio (expressed as a percentage) of the aggregate amount of Unsecured Debt of
the Borrower, the Guarantor and their Consolidated Subsidiaries outstanding as
of such date of determination to the Unencumbered Asset Pool Properties Value
as of the date of determination.
"VCOC" shall mean a "venture capital operating company" within the
----
meaning of Section 2510.3-101(d) of Department of Labor regulations.
SECTION 1.2. Accounting Terms and Determinations. Unless otherwise
-----------------------------------
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP,
applied on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower delivered to the Lead Agent and the Banks;
provided that, if the Borrower notifies the Lead Agent and the Banks that the
--------
Borrower wishes to amend any covenant in Article V to eliminate the effect of
any change in GAAP on the operation of such covenant (or if the Lead Agent
notifies the Borrower that the Required Banks wish to amend Article V for such
purpose), then the Borrower's compliance with such covenant shall be determined
on the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Borrower and the Required Banks.
SECTION 1.3. Types of Borrowings. The term "Borrowing" denotes the
------------------- ---------
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article II (or a Swing Loan made solely by the Swing Lender) on a single date
and for a single Interest Period. Borrowings are classified for purposes of
this Agreement by reference to the pricing of Loans comprising such Borrowing
(e.g., a "Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans).
---- ---------------------
26
ARTICLE II
THE CREDITS
SECTION 2.1. Commitments to Lend.
-------------------
(a) (i) Loans. Each Bank severally agrees, on the terms and
-----
conditions set forth in this Agreement, to make the Loans to the Borrower
pursuant to this Section from time to time during the Term, but not more
frequently than three (3) times in any given thirty (30) day period, in amounts
such that the aggregate principal amount of the Loans by such Bank at any one
time outstanding shall not exceed the amount of its Commitment. The Outstanding
Balance shall not at any time exceed the Available Facility. Each Borrowing
under this subsection (a) shall be in an aggregate principal amount of at least
$2,500,000, or an integral multiple of $1,000,000 in excess thereof, and shall
be made from the several Banks ratably in proportion to their respective
Commitments. Subject to the limitations set forth herein, any amounts repaid may
be reborrowed. Notwithstanding anything to the contrary, the number of new
Borrowings shall be limited to three (3) Borrowings (including Swing Loans) in
any given thirty (30) day period.
(ii) Swing Loans. During the Term, the Swing Lender agrees, on the
-----------
terms and conditions set forth in this Agreement, to make loans to the Borrower
pursuant to this Section 2.1(a)(ii) from time to time in amounts such that (i)
the aggregate principal amount of Swing Loans does not at any time exceed the
Swing Loan Commitment, and (ii) the Outstanding Balance does not exceed the
Available Facility. Each Borrowing under this Section 2.1(a)(ii) shall be in an
aggregate principal amount of $2,500,000 or any larger multiple of $1,000,000
(except that any such Borrowing may be in the aggregate available amount of
Swing Loans determined in accordance with the immediately preceding sentence).
Within the foregoing limits, the Borrower may borrow under this Section
2.1(a)(ii), repay or, to the extent permitted by Section 2.10, prepay Swing
Loans and reborrow at any time during the Term under this Section 2.1(a)(ii).
(iii) Conversion of Swing Loans to Loans. The Swing Lender shall, on
----------------------------------
behalf of the Borrower (which hereby irrevocably directs the Swing Lender to act
on its behalf), on notice given by the Swing Lender no later than 1:00 P.M. (New
York City time), on the Domestic Business Day immediately following the funding
of any Swing Loan, request each Bank to make, and each Bank hereby agrees to
make, a Base Rate Loan, in an amount
27
(with respect to each Bank, its "Swing Loan Refund Amount") equal to such Bank's
------------------------
ratable share of the aggregate Commitments with respect to the aggregate
principal amount of the Swing Loans (the "Refunded Swing Loans") outstanding on
-------------------------
the date of such notice, to repay the Swing Lender. Unless any of the events
described in clause (f) or (g) of Section 6.1 with respect to the Borrower shall
have occurred and be continuing (in which case the procedures of Section
2.1(a)(iv) shall apply), each Bank shall make such Base Rate Loan available to
the Lead Agent at its address specified in or pursuant to Section 9.1 in
immediately available funds, not later than 1:00 P.M. (New York City time), on
the Domestic Business Day immediately following the date of such notice. The
Lead Agent shall pay the proceeds of such Base Rate Loans to the Swing Lender,
which shall immediately apply such proceeds to repay Refunded Swing Loans.
Effective on the day such Base Rate Loans are made, the portion of the Swing
Loans so paid shall no longer be outstanding as Swing Loans, shall no longer be
due as Swing Loans under the Note held by the Swing Lender, and shall be due as
Base Rate Loans under the respective Notes issued to the Banks (including the
Swing Lender) in accordance with their ratable share of the aggregate
Commitments. The Borrower authorizes the Swing Lender to charge the Borrower's
accounts with the Lead Agent (up to the amount available in each such account)
in order to immediately pay the amount of such Refunded Swing Loans to the
extent amounts received from the Banks are not sufficient to repay in full such
Refunded Swing Loans.
(iv) Purchase of Participations in Swing Loans. If, prior to the time
-----------------------------------------
Loans would have otherwise been made pursuant to Section 2.1(a)(iii), one of the
events described in clause (f) or (g) of Section 6.1 with respect to the
Borrower shall have occurred and be continuing, each Bank shall, on the date
such Loans were to have been made pursuant to the notice referred to in Section
2.1(a)(iii) (the "Refunding Date"), purchase an undivided participating interest
--------------
in the Swing Loans in an amount equal to such Bank's Swing Loan Refund Amount.
On the Refunding Date, each Bank shall transfer to the Swing Lender, in
immediately available funds, such Bank's Swing Loan Refund Amount, and upon
receipt thereof the Swing Lender shall deliver to such Bank a Swing Loan
participation certificate dated the date of the Swing Lender's receipt of such
funds and in the Swing Loan Refund Amount of such Bank.
(v) Payments on Participated Swing Loans. Whenever, at any time after
------------------------------------
the Swing Lender has received from any Bank such Bank's Swing Loan Refund Amount
pursuant to Section 2.1(a)(iv), the Swing Lender receives any
28
payment on account of the Swing Loans in which the Banks have purchased
participations pursuant to Section 2.1(a)(iv), the Swing Lender will promptly
distribute to each such Bank its ratable share (determined on the basis of the
Swing Loan Refund Amounts of all of the Banks) of such payment (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Bank's participating interest was outstanding and funded); provided,
--------
however, that in the event that such payment received by the Swing Lender is
-------
required to be returned, such Bank will return to the Swing Lender any portion
thereof previously distributed to it by the Swing Lender.
(vi) Obligations to Refund or Purchase Participations in Swing Loans
---------------------------------------------------------------
Absolute. Each Bank's obligation to transfer the amount of a Loan to the Swing
--------
Lender as provided in Section 2.1(a)(iii) or to purchase a participating
interest pursuant to Section 2.1(a)(iv) shall be absolute and unconditional and
shall not be affected by any circumstance, including, without limitation, (i)
any set-off, counterclaim, recoupment, defense or other right which such Bank,
the Borrower or any other Person may have against the Swing Lender or any other
Person, other than the Swing Lender's gross negligence or willful misconduct in
connection with making any such Swing Loan, (ii) the occurrence or continuance
of a Default or an Event of Default or the termination or reduction of the
Commitments, (iii) any adverse change in the condition (financial or otherwise)
of the Borrower or any other Person, (iv) any breach of this Agreement by the
Borrower, any other Bank or any other Person, or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
(b) Notwithstanding anything in the preceding subparagraph (a) to the
contrary, the Outstanding Balance shall in no event exceed (and no Bank shall be
deemed to have committed to fund its pro rata share of an amount which exceeds)
--- ----
an amount which would result in the violation of any provision of Section 5.8.
SECTION 2.2. Notice of Borrowing. The Borrower shall give the Lead Agent
-------------------
notice (a "Notice of Borrowing") not later than (A) 10:00 a.m. (New York City
-------------------
time) (x) one (1) Domestic Business Day before each Base Rate Borrowing, (y) the
third Euro-Dollar Business Day before each Euro-Dollar Borrowing, or (B) 12:00
noon (New York City time) on the date of each Borrowing of a Swing Loan,
specifying:
(i) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Domestic Borrowing or a Euro-Dollar Business Day in the
case of a Euro-Dollar Borrowing,
29
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be Base
Rate Loans, Swing Loans or Euro-Dollar Loans,
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the definition
of Interest Period,
(v) the intended use for the proceeds of such Borrowing, which
shall be an Approved Use, and the total outstanding Borrowings for working
capital purposes, and
(vi) the then Unsecured Debt Ratio.
No more than two (2) Swing Loans may be borrowed during any single
calendar month.
SECTION 2.3. Notice to Banks; Funding of Loans.
---------------------------------
(a) Upon receipt of a Notice of Borrowing, the Lead Agent shall
notify each Bank on the same day as it receives the Notice of Borrowing of the
contents thereof and of such Bank's share of such Borrowing and such Notice of
Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of
each Borrowing (including, without limitation, each Swing Borrowing), each Bank
(or, in the case of a Swing Loan, the Swing Lender) shall make available its
share of such Borrowing, in Federal or other funds immediately available in New
York City, to the Lead Agent at its address referred to in Section 9.1. Not
later than 2:00 p.m. (New York City time) on the date of each Borrowing, the
Lead Agent will make the funds so received from the Banks available to the
Borrower at the Lead Agent's aforesaid address. Upon any change in any of the
Commitments in accordance herewith, there shall be an automatic adjustment to
such participations to reflect such changed shares.
(c) Unless the Lead Agent shall have received notice from a Bank
prior to the date of any Borrowing that such Bank will not make available to the
Lead Agent such Bank's share of such Borrowing, the Lead Agent may
30
assume that such Bank has made such share available to the Lead Agent on the
date of such Borrowing in accordance with subsection (b) of this Section 2.3 and
the Lead Agent may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent that such
Bank shall not have so made such share available to the Lead Agent, such Bank
and the Borrower jointly and severally agree to repay to the Lead Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Lead Agent (provided, however, that in the
case of any Swing Borrowing, with respect to the Borrower only, interest thereon
shall commence to accrue only from the date which is one (1) Domestic Business
Day after the date on which the Lead Agent shall inform the Borrower that any
such Bank shall have failed to fund its Swing Loan Refund Amount), at (i) in the
case of the Borrower, a rate per annum equal to the higher of the Federal Funds
Rate and the interest rate applicable thereto pursuant to Section 2.6 and (ii)
in the case of such Bank, the Federal Funds Rate. If such Bank shall repay to
the Lead Agent such corresponding amount, such amount so repaid shall constitute
such Bank's Loan included in such Borrowing for purposes of this Agreement.
SECTION 2.4. Notes.
-----
(a) The Loans shall be evidenced by the Notes, each of which shall be
payable to the order of each Bank for the account of its Applicable Lending
Office in an amount equal to each such Bank's Commitment.
(b) Each Bank may, by notice to the Borrower and the Lead Agent,
request that its Loans of a particular type, including Swing Loans, be
evidenced by a separate Note in an amount equal to the aggregate unpaid
principal amount of such Loans. Each such Note shall be in substantially the
form of Exhibit A-1 hereto with respect to the Swing Lender and Exhibit A-2
----------- -----------
hereto and with respect to any other Bank, with appropriate modifications to
reflect the fact that it evidences solely Loans of the relevant type. Each
reference in this Agreement to the "Note" of such Bank shall be deemed to refer
----
to and include any or all of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.1(a), the
Lead Agent shall forward such Note to such Bank. Each Bank shall record the
date, amount, type and maturity of each Loan made by it and the date and amount
of each payment of principal made by the
31
Borrower with respect thereto, and may, if such Bank so elects in connection
with any transfer or enforcement of its Note, endorse on the schedule forming a
part thereof appropriate notations to evidence the foregoing information with
respect to each such Loan then outstanding; provided that the failure of any
Bank to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Notes. Each Bank is hereby
irrevocably authorized by the Borrower so to endorse its Note and to attach to
and make a part of its Note a continuation of any such schedule as and when
required.
(d) There shall be no more than seven (7) Euro-Dollar Borrowings
outstanding at any one time pursuant to this Agreement.
SECTION 2.5. Maturity of Loans. The Loans shall mature, and the
-----------------
principal amount thereof and all other Obligations shall be due and payable, on
the Maturity Date, unless sooner due and payable in accordance with the terms
hereof.
SECTION 2.6. Interest Rates.
--------------
(a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate for such day. Such
interest shall be payable for each Interest Period on the last day thereof.
(b) Each Swing Loan shall bear interest on the outstanding principal
amount thereof at the rate applicable to Base Rate Loans, and in the case of
any amount of overdue Swing Loan, overdue interest thereon at a rate per annum
for each day equal to the sum of four percent (4%) plus the rate applicable to
Base Rate Loans for such day.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin for Euro-
Dollar Loans for such day plus the Adjusted London Interbank Offered Rate
applicable to such Interest Period. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period is longer
than three (3) months, at intervals of three (3) months after the first day
thereof.
"Adjusted London Interbank Offered Rate" applicable to any Interest
--------------------------------------
Period means a rate per annum equal
32
to the quotient obtained (rounded upward, if necessary, to the next higher 1/100
of 1%) by dividing (i) the applicable London Interbank Offered Rate by (ii) 1.00
minus the Euro-Dollar Reserve Percentage.
"Euro-Dollar Reserve Percentage" means for any day that percentage
------------------------------
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
"London Interbank Offered Rate" applicable to any Interest Period
-----------------------------
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
the Reference Bank in the London interbank market at approximately 11:00 a.m.
(London time) two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the principal amount of the
Euro-Dollar Loan of such Reference Bank to which such Interest Period is to
apply and for a period of time comparable to such Interest Period.
(d) In the event that, and for so long as, any Event of Default shall
have occurred and be continuing, the outstanding principal amount of the Loans
and, to the extent permitted by law, overdue interest in respect of all Loans,
shall bear interest at the annual rate of the sum of the Prime Rate and four
percent (4%).
(e) The Lead Agent shall determine each interest rate applicable to
the Loans hereunder. The Lead Agent shall give prompt notice to the Borrower
and the Banks of each rate of interest so determined, and its determination
thereof shall be conclusive in the absence of manifest error.
(f) The Reference Bank agrees to use its best efforts to furnish
quotations to the Lead Agent as contemplated by this Section. If the
Reference Bank does not furnish a timely quotation, the provisions of Section
8.1 shall apply.
33
SECTION 2.7. Fees.
----
(a) Commitment Fee. During the Term, the Borrower shall pay to the
--------------
Lead Agent for the account of the Banks ratably in proportion to their
respective Commitments, a commitment fee on the daily average undrawn and
uncancelled Commitments in any given quarter determined as follows:
(i) prior to the Adjustment Date, the Borrower shall pay to the Lead
Agent for the account of the Banks ratably in proportion to their respective
Commitments, a commitment fee on the daily average undrawn and uncancelled
Commitments in any given quarter at the respective percentages per annum based
upon the range into which the Total Debt Ratio then falls
in accordance with the following table:
Total Debt Ratio Applicable Commitment Fee
(% per annum)
-----------------------------------------------------
less than 15% 0.15%
-----------------------------------------------------
equal to or greater than 0.20%
15% but less than 40%
-----------------------------------------------------
equal to or greater than 0.25%
40% but less than 50%
-----------------------------------------------------
(ii) from and after the Adjustment Date, the Borrower shall pay to the
Lead Agent for the account of the Banks ratably in proportion to their
respective Commitments, a commitment fee on the daily average undrawn and
uncancelled Commitments in any given quarter at the respective percentages per
annum based upon the Borrower's Credit Rating in accordance with the following
table:
Borrower's Credit Rating Applicable Commitment Fee
(% per annum)
-----------------------------------------------------
Investment Grade Rating 0.20%
-----------------------------------------------------
Below Investment Grade 0.25%
Rating or no rating
-----------------------------------------------------
The commitment fee shall be payable quarterly, in arrears, on each January 1,
April 1, July 1, and October 1 during the Term and any extensions thereof. Any
change in the Borrower's Credit Rating causing it to move into a different range
on the table shall effect an immediate change in the applicable percentage per
annum. In the event that the Borrower's Credit Rating is such that the
34
Rating Agencies' ratings are split between a higher and a lower rating, the
applicable percentage per annum shall be based upon the lower of such two (2)
Credit ratings.
(b) Fees Non-Refundable. All fees set forth in this Section 2.7 shall
-------------------
be deemed to have been earned on the date payment is due in accordance with the
provisions hereof and shall be non-refundable. The obligation of the Borrower
to pay such fees in accordance with the provisions hereof shall be binding upon
the Borrower and shall inure to the benefit of the Lead Agent and the Banks
regardless of whether any Loans are actually made.
SECTION 2.8. Mandatory Termination. The term (the "Term") of the
--------------------- ----
Commitments and the Swing Line Commitments shall terminate and expire on March
16, 2001 (the "Maturity Date").
--------------
SECTION 2.9. Mandatory Prepayment.
--------------------
(a) In the event that an Unencumbered Asset Pool Property (or any
Separate Parcel that originally formed a part of an Unencumbered Asset Pool
Property) is sold, transferred or released from the restrictions of Section 5.16
hereof, the Borrower shall, simultaneously with such sale, transfer or release,
prepay the Loans in an amount equal to 100% of the net proceeds of such sale or
transfer, in the event of a sale or transfer, or, if less, such amount as shall
be required for the Borrower to remain in compliance with this Agreement, in the
event of a release. Notwithstanding the foregoing, a simultaneous like-kind
exchange under Section 1031 of the Internal Revenue Code will not be subject
to the provisions of this Section 2.9(a), provided that the exchanged property
has qualified as a New Acquisition and any "boot" associated therewith shall
be applied to prepayment of the Loans. Sale of an Unencumbered Asset Pool
Property (or any Separate Parcel that originally formed a part of a Unencumbered
Asset Pool Property) in violation of this Section 2.9 shall constitute an Event
of Default.
(b) If, at any time, the Outstanding Balance shall exceed the
Available Facility, then the Borrower shall immediately prepay the Loans in an
amount equal to such excess. Notwithstanding the foregoing,
(1) if the Outstanding Balance exceeds the Available Facility (but is less
than the aggregate Commitments) but is less than or equal to an amount
equal to 52.5% of the Unencumbered Asset Pool Properties Value and no
Event of Default shall have occurred and be continuing, then the
Borrower shall, within ninety (90) days after
35
the last day of the preceding calendar quarter or the date of any New
Acquisition resulting in such excess (whichever is earlier), either
(A) cause one (1) or more New Acquisitions and/or Real Property Assets
having Unencumbered Asset Pool Property Values sufficient to ensure
the Borrower's compliance with the requirements of this Agreement to
be included as Unencumbered Asset Pool Properties in accordance with
Section 3.3 hereof or (B) prepay the Loans in an amount equal to 100%
of the amount by which the Outstanding Balance exceeds the Available
Facility; and
(2) if the Outstanding Balance exceeds an amount equal to 52.5% of the
Unencumbered Asset Pool Properties Value and no Event of Default shall
have occurred and be continuing, then the Borrower shall, within
twenty-five (25) Domestic Business Days after the last day of the
preceding calendar quarter or the date of any New Acquisition
resulting in such excess (whichever is earlier), prepay the Loans in
an amount equal to 100% of the amount by which the Outstanding Balance
exceeds the Available Facility.
(c) The Borrower shall make any prepayment pursuant to this Section
2.9 together with interest accrued to the date of the prepayment on the
principal amount so prepaid; provided that any prepayment pursuant to this
Section 2.9 shall be applied (unless an Event of Default exists) as specified by
the Borrower or, otherwise, first to any Base Rate Loans then outstanding,
then to any Euro-Dollar Loans with the shortest Interest Periods. In connection
with the prepayment of a Euro-Dollar Loan prior to the maturity thereof, the
Borrower shall also pay any applicable expenses pursuant to Section 2.12.
Each such prepayment shall be applied to prepay ratably the Loans of the Banks.
Amounts prepaid pursuant to this Section 2.9 may not be reborrowed unless the
Borrower shall be in compliance with the covenants set forth in Section 5.8
hereof both before and after giving effect to any such Borrowing.
(d) Any event referred to in Section 2.9 that results in a required
prepayment of the Loans pursuant to this Section 2.9 shall be referred to as a
"Mandatory Prepayment Event".
---------------------------
36
SECTION 2.10. Optional Prepayments; Cancellation of Commitments.
-------------------------------------------------
(a) The Borrower may, upon at least one (1) Domestic Business Day's
notice to the Lead Agent, prepay to the Lead Agent, for the account of the
Banks, any Base Rate Borrowing or Swing Line Borrowing in whole at any time, or
from time to time in part in amounts aggregating One Million Dollars
($1,000,000), or an integral multiple of One Million Dollars ($1,000,000) in
excess thereof or, if less, the outstanding principal balance, by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Banks included in such Borrowing.
(b) Except as provided in Section 8.2, the Borrower may not prepay all
or any portion of the principal amount of any Euro-Dollar Loan prior to the
maturity thereof unless the Borrower shall also pay any applicable expenses
pursuant to Section 2.12. Any such prepayment shall be upon at least three (3)
Euro-Dollar Business Days' notice to the Lead Agent. Each such optional
prepayment shall be in the amounts set forth in Section 2.10(a) above and shall
be applied to prepay ratably the Loans of the Banks included.
(c) The Borrower may at any time and from time to time cancel all or
any part of the Commitments or Swing Line Commitments in amounts aggregating One
Million Dollars ($1,000,000), or an integral multiple of One Million Dollars
($1,000,000) in excess thereof, by the delivery to the Lead Agent, the Banks and
the Swing Lender of a notice of cancellation upon at least three (3) Domestic
Business Days' notice to Lead Agent, the Banks and the Swing Lender, whereupon
all or such portion of the Commitments shall terminate as to the Banks pro rata
--- ----
on the date set forth in such notice of cancellation (or, in the case of the
Swing Line Commitment, all or such portion of the Swing Line Commitment shall
terminate as to the Swing Line Lender on the date set forth in such notice of
cancellation) and, if there are any Loans or Swing Loans then outstanding in an
aggregate amount which exceeds the aggregate Commitments or Swing Line Commit
ment (after giving effect to any such reduction), as applicable, the Borrower
shall prepay to the Lead Agent, for the account of the Banks or the Swing
Lender, as applicable, all or such portion of Loans or Swing Loans outstanding
on such date in accordance with the requirements of Sections 2.10(a) and (b).
The Borrower shall be permitted to designate in its notice of cancellation which
Loans, if any, are to be prepaid.
37
(d) Upon receipt of a notice of prepayment or cancellation pursuant to
this Section, the Lead Agent shall promptly, and in any event within one (1)
Domestic Business Day, notify each Bank of the contents thereof and of such
Bank's ratable share (if any) of such prepayment or cancellation and such
notice shall not thereafter be revocable by the Borrower.
(e) Any amounts so prepaid pursuant to this Section 2.10 may be
reborrowed subject to the other terms of this Agreement. In the event that the
Borrower elects to cancel all or any portion of the Commitments pursuant to
Section 2.10(c) hereof, such amounts may not be reborrowed.
SECTION 2.11. General Provisions as to Payments.
---------------------------------
(a) The Borrower shall make each payment of principal of, and interest
on, the Loans and of fees hereunder, not later than 12:00 Noon (New York City
time) on the date when due, in Federal or other funds immediately available in
New York City, to the Lead Agent at its address referred to in Section 9.1. The
Lead Agent will distribute to each Bank its ratable share of each such payment
received by the Lead Agent for the account of the Banks on the same day as
received by the Lead Agent if received by the Lead Agent by 2:00 p.m. (New York
City time) or, if received by the Lead Agent after 2:00 p.m. (New York City
time), on the immediately following Domestic Business Day. Whenever any
payment of principal of, or interest on, the Base Rate Loans or of fees shall be
due on a day which is not a Domestic Business Day, the date for payment
thereof shall be extended to the next succeeding Domestic Business Day.
Whenever any payment of principal of, or interest on, the Euro-Dollar Loans
shall be due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding Euro-Dollar
Business Day. If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon shall be payable for such
extended time.
(b) Unless the Lead Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks hereunder that the
Borrower will not make such payment in full, the Lead Agent may assume that the
Borrower has made such payment in full to the Lead Agent on such date and the
Lead Agent may, in reliance upon such assumption, cause to be distributed to
each Bank on such due date an amount equal to the amount
38
then due such Bank. If and to the extent that the Borrower shall not have so
made such payment, each Bank shall repay to the Lead Agent forthwith on demand
such amount distributed to such Bank together with interest thereon, for each
day from the date such amount is distributed to such Bank until the date such
Bank repays such amount to the Lead Agent, at the Federal Funds Rate.
SECTION 2.12. Funding Losses. If the Borrower makes any payment of
--------------
principal with respect to any Euro-Dollar Loan (pursuant to Article II, VI or
VIII or otherwise) on any day other than the last day of the Interest Period
applicable thereto, or if the Borrower fails to borrow any Euro-Dollar Loans
after notice has been given to any Bank in accordance with Section 2.3(a), then
the Borrower shall reimburse each Bank within fifteen (15) days after demand for
any resulting loss or expense incurred by it (or by an existing Participant in
the related Loan; provided that no Participant shall be entitled to receive more
than the Bank with respect to which such Participant is a Participant would be
entitled to receive under this Section 2.12), including (without limitation) any
loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment or
failure to borrow, provided that such Bank shall have delivered to the Borrower
--------
a certificate as to the amount of such loss or expense and the calculation
thereof, which certificate shall be prima facie evidence of the matters
certified therein.
SECTION 2.13. Computation of Interest and Fees. Interest based on the
--------------------------------
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.14. Method of Electing Interest Rates.
---------------------------------
(a) The Loans included in each Borrowing shall bear interest initially
at the type of rate specified by the Borrower in the applicable Notice of
Borrowing. Thereafter, the Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject in each
case to the provisions of Article VIII and except for any Swing Loans), as
follows:
39
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day;
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, in each case effective
on the last day of the then current Interest Period applicable to such
Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
------------------
Rate Election") to the Lead Agent at least three (3) Euro-Dollar Business Days
-------------
before the conversion or continuation selected in such notice is to be effective
(unless the relevant Loans are to be continued as Base Rate Loans, in which
case such notice shall be delivered to the Lead Agent no later than 12:00 Noon
(New York City time) at least one (1) Domestic Business Day before such
continuation is to be effective). A Notice of Interest Rate Election may, if it
so specifies, apply to only a portion of the aggregate principal amount of the
relevant Group of Loans; provided that (i) such portion is allocated ratably
--------
among the Loans comprising such Group, (ii) the portion to which such notice
applies, and the remaining portion to which it does not apply, are each
$2,500,000 or any larger multiple of $1,000,000, (iii) there shall be no more
than seven (7) Euro-Dollar Borrowings outstanding at any time under this
Agreement, (iv) no Loan may be continued as, or converted into, a Euro-Dollar
Loan when any Event of Default has occurred and is continuing, and (v) no
Interest Period shall extend beyond the Maturity Date.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the new
type of Loans and, if such new Loans are Euro-Dollar Loans, the duration of
the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
40
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Lead Agent shall notify each Bank
on the same day as it receives such Notice of Interest Rate Election of the
contents thereof and such notice shall not thereafter be revocable by the
Borrower. If the Borrower fails to deliver a timely Notice of Interest Rate
Election to the Lead Agent for any Group of Euro-Dollar Loans, such Loans
shall be converted into Base Rate Loans on the last day of the then current
Interest Period applicable thereto.
ARTICLE III
CONDITIONS
SECTION 3.1. Closing. The closing hereunder shall occur on the date (the
-------
"Closing Date") when each of the following conditions is satisfied (or waived by
------------
the Lead Agent, such waiver to be evidenced by the funding of the Loans made on
the Closing Date), each document to be dated the Closing Date unless otherwise
indicated:
(a) the Borrower shall have executed and delivered to the Lead Agent a
Note for the account of each Bank dated on or before the Closing Date complying
with the provisions of Section 2.4;
(b) the Borrower shall have executed and delivered to the Lead Agent a
duly executed original of this Agreement;
(c) the Guarantor shall have executed and delivered to the Lead Agent
a duly executed original of the Confirmation of Guaranty;
(d) the Lead Agent shall have received an opinion of ▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇, counsel for the Borrower and the Guarantor, acceptable to the Lead Agent,
the Banks and their counsel;
(e) the Lead Agent shall have received all documents the Lead Agent
may reasonably request relating to the existence of the Borrower and the
Guarantor, the authority for and the validity of this Agreement and the other
Loan Documents, and any other matters relevant hereto, all in form and substance
reasonably satisfactory to the Lead Agent. Such documentation shall include,
41
without limitation, the articles of incorporation and by-laws or the partnership
agreement and limited partnership certificate, as applicable, of the Borrower
and the Guarantor, as amended, modified or supplemented to the Closing Date,
each certified to be true, correct and complete by a senior officer of the
Borrower and the Guarantor, as applicable, as of a date not more than forty-five
(45) days prior to the Closing Date, together with a good standing certificate
from the Secretary of State (or the equivalent thereof) of the State of Delaware
with respect to the Borrower and the State of Maryland with respect to the
Guarantor, respectively, and a good standing certificate from the Secretary of
State (or the equivalent thereof) of each other State in which the Borrower or
the Guarantor, as applicable, is required to be qualified to transact business
(other than any such State in which the failure to be so qualified would not
reasonably be expected to have a Material Adverse Effect), each to be dated not
more than forty-five (45) days prior to the Closing Date;
(f) the Lead Agent shall have received all certificates, agreements
and other documents and papers referred to in this Section 3.1 and Section 3.2,
unless otherwise specified, in sufficient counterparts, satisfactory in form
and substance to the Lead Agent in its sole discretion;
(g) the Borrower and the Guarantor shall have taken all actions
required to authorize the execution and delivery of this Agreement and the other
Loan Documents to which each is a party and the performance thereof by the
Borrower and the Guarantor;
(h) the Lead Agent shall be satisfied that the Borrower is not subject
to any present or contingent environmental liability which would reasonably be
expected to have a Material Adverse Effect;
(i) the Lead Agent shall have received an unaudited, pro forma,
--- -----
consolidated balance sheet and income statement of the Borrower for the fiscal
quarter ended December 31, 1997;
(j) the Lead Agent shall have received wire transfer instructions in
connection with the Loans to be made on the Closing Date;
(k) the Lead Agent shall have received, for its and any other Bank's
account, all fees due and payable pursuant to Section 2.7 hereof on or before
the Closing Date, and the reasonable fees and expenses accrued through the
Closing Date of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP;
42
(l) the Lead Agent shall have received copies of all consents,
licenses and approvals, if any, required in connection with the execution,
delivery and performance by the Borrower and the Guarantor, and the validity
and enforceability against the Borrower and the Guarantor, of the Loan
Documents to which each is a party, or in connection with any of the
transactions contemplated thereby to occur on or prior to the Closing Date, and
such consents, licenses and approvals shall be in full force and effect;
(m) the representations and warranties of the Borrower contained in
this Agreement and of the Guarantor in the Guaranty shall be true and correct in
all material respects on and as of the Closing Date both before and after giving
effect to the making of any Loans; and
(n) receipt by the Lead Agent and the Banks of a certificate of the
chief financial officer or the chief accounting officer of the Borrower
certifying that the Borrower is in compliance with all covenants of the Borrower
contained in this Agreement, including, without limitation, the requirements of
Section 5.8, as of the Closing Date, both before and after giving effect to the
making of any Loans.
The Lead Agent shall promptly notify the Borrower and the Banks of the Closing
Date, and such notice shall be conclusive and binding on all parties hereto.
SECTION 3.2. Borrowings. The obligation of any Bank to make a Loan, other
----------
than a Refunding Swing Loan, on the occasion of any Borrowing is subject to the
satisfaction of the following conditions:
(a) the Closing Date shall have occurred on or prior to March 31,
1998;
(b) receipt by the Lead Agent of a Notice of Borrowing as required by
Section 2.2;
(c) immediately after such Borrowing, the Outstanding Balance will not
exceed the aggregate amount of the Commitments and, with respect to each Bank,
such Bank's pro rata portion of the Loans will not exceed the amount of such
--- ----
Bank's Commitment or the amount permitted pursuant to Section 2.1(b);
(d) immediately before and after such Borrowing, no Default or Event
of Default shall have occurred and be continuing both before and after giving
effect to the making of such Loans;
43
(e) the representations and warranties of the Borrower contained in
this Agreement and of the Guarantor in the Guaranty (other than representations
and warranties which speak as of a specific date) shall be true and correct in
all material respects on and as of the date of such Borrowing both before and
after giving effect to the making of such Loans;
(f) no law or regulation shall have been adopted, no order, judgment
or decree of any governmental authority shall have been issued, and no
litigation shall be pending or threatened, which does or, with respect to any
threatened litigation, seeks to enjoin, prohibit or restrain, the making or
repayment of the Loans or any participations therein or the consummation of the
transactions contemplated hereby; and
(g) no event, act or condition shall have occurred after the Closing
Date which, in the reasonable judgment of the Lead Agent or the Required Banks,
as the case may be, has had or is likely to have a Material Adverse Effect.
Each Borrowing hereunder shall be deemed to be a representation and warranty
by the Borrower on the date of such Borrowing as to the facts specified in
clauses (c) through (g) of this Section (except that with respect to clause (f),
such representation and warranty shall be deemed to be limited to laws,
regulations, orders, judgments, decrees and litigation solely affecting the
Borrower and not the Banks).
SECTION 3.3. New Acquisitions and Additional Real Property Assets.
----------------------------------------------------
(a) Any New Acquisition or Real Property Asset desired by the
Borrower to be included as a Unencumbered Asset Pool Property will require the
approval of the Required Banks. The Borrower shall submit to the Lead Agent
the materials set forth below (the "Due Diligence Package") relating to each New
---------------------
Acquisition or Real Property Asset that the Borrower desires to be added to the
Unencumbered Asset Pool Properties. The Due Diligence Package shall include (i)
a description of the Real Property Asset or New Acquisition, (ii) two (2) years
of historical cash flow operating statements, if available, (iii) five (5) years
of cash flow projections (including capital expenditures), (iv) a map and site
plan, (v) if such New Acquisition or Real Property Asset was acquired by the
Borrower, the Guarantor or a Subsidiary of either
44
(or a predecessor of the Borrower, the Guarantor or a Subsidiary of either)
within the prior twelve (12) month period, an investment memorandum prepared by
the Borrower, the Guarantor or a Subsidiary of either or such predecessor in
connection with the acquisition of the Unencumbered Asset Pool Property by
Borrower, the Guarantor or a Subsidiary of either or such predecessor (which
memorandum shall include, but not be limited to, an analysis prepared by the
Borrower, the Guarantor or a Subsidiary of either or such predecessor of the
credit quality and viability of each existing tenant of such New Acquisition or
Real Property Asset which occupies more than 15% of such New Acquisition or Real
Property Asset or accounts for more than 15% of the base rentals of such New
Acquisition or Real Property Asset), (vi) to the extent obtained by the
Borrower, the Guarantor or, as applicable, a Subsidiary of either in connection
with any New Acquisition, evidence of zoning compliance (which evidence can
include a "lawyer's letter" from a local counsel engaged by Borrower, the
Guarantor or, as applicable, a Subsidiary of either at the time of acquisition),
(vii) a copy of the engineer's inspection report obtained by the Borrower, the
Guarantor or, if applicable, a Subsidiary of either in connection with the
acquisition of such New Acquisition or Real Property Asset indicating that such
New Acquisition or Real Property Asset is in satisfactory condition, (viii) a
copy of the Title Commitment obtained by the Borrower, the Guarantor or, if
applicable, a Subsidiary that owns or leases (or will own or lease) each such
New Acquisition or Real Property Asset, (ix) a copy of an environmental report
for each such New Acquisition or Real Property Asset indicating that such New
Acquisition or Real Property Asset and the use thereof each complies in all
material respects with all applicable Environmental Laws and is free from
contamination by any Material of Environmental Concern or, if the environmental
report indicates that any remediation or other environmental work is recommended
or required, the Borrower shall either obtain a guaranty as to the completion of
such remediation or work from a Person (other than the Borrower, the Guarantor
and their Affiliates) having an Investment Grade Rating or furnish to the Lead
Agent Cash or Cash Equivalents (or other security satisfactory to the Lead
Agent) in an amount equal to 100% of the reasonably estimated cost of completing
such remediation or other work, (x) copies of the lease agreements for each of
the tenants of such New Acquisition or Real Property Asset, together with an
abstract or summary of each lease for any tenant which occupies more than 15% of
such New Acquisition or Real Property Asset or accounts for more than 15% of the
base rentals of such New Acquisition or Real Property Asset and (xi) such
additional information with respect to each
45
New Acquisition or Real Property Asset, the tenants of such New Acquisition or
Real Property Asset and, if applicable, the Subsidiary that owns or leases such
New Acquisition or Real Property Asset, as the Lead Agent or any Bank shall
reasonably request.
(b) The Borrower shall distribute a copy of each item constituting the
Due Diligence Package by overnight mail to each of the Banks for their review
and approval. Failure to respond to the Lead Agent in writing by any Bank within
ten (10) Domestic Business Days after receipt of the Due Diligence Package,
shall be deemed to be an approval by such Bank of such New Acquisition or Real
Property Asset for inclusion as an Unencumbered Asset Pool Property.
(c) The Borrower and the Guarantor shall permit (and shall cause
their respective Subsidiaries to permit) the Lead Agent at all reasonable times
and upon reasonable prior notice to make an inspection of any New Acquisition or
Real Property Asset.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lead Agent and each of the other Banks which
may become a party to this Agreement to make the Loans, the Borrower makes the
following representations and warranties as of the date hereof. Such
representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the other Loan Documents and the
making of the Loans.
SECTION 4.1. Existence and Power. The Borrower is duly organized,
-------------------
validly existing and in good standing as a limited partnership under the laws of
the State of Delaware and has all powers and all material governmental licenses,
authorizations, consents and approvals required to own its property and assets
and carry on its business as now conducted or as it presently proposes to
conduct and has been duly qualified and is in good standing in every
jurisdiction in which the failure to be so qualified and/or in good standing
would reasonably be expected to have a Material Adverse Effect.
SECTION 4.2. Power and Authority. The Borrower has the power and
-------------------
authority to execute, deliver and carry out the terms and provisions of each of
the Loan Documents to which it is a party and has taken all necessary action to
authorize the execution and delivery on behalf of the
46
Borrower and the performance by the Borrower of such Loan Documents. The
Borrower has duly executed and delivered each Loan Document to which it is a
party, and each such Loan Document constitutes the legal, valid and binding
obligation of the Borrower, enforceable in accordance with its terms, except as
enforceability may be limited by applicable insolvency, bankruptcy or other laws
affecting creditors rights generally, or general principles of equity, whether
such enforceability is considered in a proceeding in equity or at law.
SECTION 4.3. No Violation. Neither the execution, delivery or
------------
performance by or on behalf of the Borrower of the Loan Documents to which it is
a party, nor compliance by the Borrower with the terms and provisions thereof
nor the consummation of the transactions contemplated by the Loan Documents to
which it is a party, (i) will contravene any applicable provision of any
Requirement applicable to the Borrower or (ii) will conflict with or result in
any breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property or assets of
the Borrower pursuant to the terms of any material indenture, mortgage, deed of
trust, or other agreement or other instrument to which the Borrower (or of any
partnership of which the Borrower is a partner) is a party or by which it or any
of its property or assets is bound or to which it is subject or (iii) will cause
a default by the Borrower under any organizational document of any Subsidiary of
the Borrower, or cause a default under the organizational documents of the
Borrower's general partner.
SECTION 4.4. Financial Information.
---------------------
(a) The unaudited consolidated balance sheet of the Borrower as of the
closing date for the IPO, when delivered to Lead Agent shall fairly present, in
conformity with GAAP, the consolidated financial position of the Borrower as of
such date.
(b) As of the Closing Date, (i) there has been no material adverse
change in the business, financial position or results of operations of the
Borrower since December 31, 1997, and (ii) except as previously disclosed to
the Lead Agent, the Borrower has not incurred any material indebtedness or
guaranty.
SECTION 4.5. Litigation.
----------
(a) There is no action, suit or proceeding pending against, or to the
knowledge of the Borrower,
47
threatened against or affecting, (i) the Borrower or any of its Subsidiaries,
(ii) the Loan Documents or any of the transactions contemplated by the Loan
Documents or (iii) any of their assets, in any case before any court or
arbitrator or any governmental body, agency or official which would reasonably
be expected to have a Material Adverse Effect or which in any manner draws into
question the validity of this Agreement or the other Loan Documents.
(b) There are no final nonappealable judgments or decrees in an
aggregate amount of Five Million Dollars ($5,000,000) or more entered by a court
or courts of competent jurisdiction against the Borrower or any of its
Subsidiaries (other than any judgment as to which, and only to the extent, a
reputable insurance company has acknowledged coverage of such claim in writing).
SECTION 4.6. Compliance with ERISA.
---------------------
(a) Except as previously disclosed to the Lead Agent in writing, each
member of the ERISA Group has fulfilled its obligations under the minimum
funding standards of ERISA and the Internal Revenue Code with respect to each
Plan and is in compliance in all material respects with the presently applicable
provisions of ERISA and the Internal Revenue Code with respect to each Plan. No
member of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code in respect of any Plan,
(ii) failed to make any contribution or payment to any Plan or Multiemployer
Plan or in respect of any Benefit Arrangement, or made any amendment to any
Plan or Benefit Arrangement, which has resulted or could result in the
imposition of a Lien or the posting of a bond or other security under ERISA or
the Internal Revenue Code or (iii) incurred any liability under Title IV of
ERISA other than a liability to the PBGC for premiums under Section 4007 of
ERISA.
(b) None of the assets of any "employee benefit plan" (as such term
is defined in Section 3(3) of ERISA) have been invested in a manner that would
cause the transactions contemplated by the Loan Documents to constitute a
nonexempt prohibited transaction (as such term is defined in Section 4975 of the
Internal Revenue Code or Section 406 of ERISA).
SECTION 4.7 Environmental Compliance. In the ordinary course of its
------------------------
business, the Borrower conducts an ongoing review of the effect of Environmental
Laws on the business, operations and properties of the Borrower and its
Consolidated Subsidiaries, including, without limitation, the Real Property
Assets, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation,
48
any capital or operating expenditures required for clean-up or closure of
properties presently or previously owned, any capital or operating expenditures
required to achieve or maintain compliance with environmental protection
standards imposed by law or as a condition of any license, permit or contract,
any related constraints on operating activities, including any periodic or
permanent shutdown of any facility or reduction in the level of or change in the
nature of operations conducted thereat, any costs or liabilities in connection
with off-site disposal of Materials of Environmental Concern, and any actual or
potential liabilities to third parties, including employees, and any related
costs and expenses). On the basis of this review, the Borrower has reasonably
concluded that such associated liabilities and costs, including the costs of
compliance with Environmental Laws, would not reasonably be expected to have a
Material Adverse Effect on the Borrower and its Consolidated Subsidiaries.
SECTION 4.8. Taxes. The initial tax year of the Borrower for federal
-----
income tax purposes was 1997. The Borrower and its Subsidiaries will file all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and will pay all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Subsidiary of the Borrower except those (a) being contested in good faith or (b)
for which the non-payment of which would not reasonably be expected to have a
Material Adverse Effect. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of taxes or other governmental charges
are, in the opinion of the Borrower, adequate.
SECTION 4.9. Full Disclosure. All information (other than projections)
---------------
heretofore furnished by the Borrower to the Lead Agent or any Bank for purposes
of or in connection with this Agreement or any transaction contemplated hereby
is, when taken as a whole, true and accurate in all material respects on the
date as of which such information is stated or certified. The Borrower has
disclosed to the Banks in writing any and all facts known to the Borrower which
have or are likely to have (to the extent the Borrower can now reasonably
foresee) a Material Adverse Effect.
SECTION 4.10. Solvency. On the Closing Date and after giving effect to
--------
the transactions contemplated by the Loan Documents occurring on the Closing
Date, the Borrower is Solvent.
49
SECTION 4.11. Use of Proceeds; Margin Regulations. All proceeds of the
-----------------------------------
Loans will be used by the Borrower only for Approved Uses. No part of the
proceeds of any Loan will be used by the Borrower to purchase or carry any
Margin Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock. Neither the making of any Loan nor the use of the
proceeds thereof will violate or be inconsistent with the provisions of
Regulations G, T, U or X of the Federal Reserve Board.
SECTION 4.12. Governmental Approvals. No order, consent, approval,
----------------------
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any Governmental Authority is required to authorize,
or is required in connection with the execution, delivery and performance of any
Loan Document or the consummation of any of the transactions contemplated
thereby other than those (a) that have already been duly made or obtained and
remain in full force and effect or (b) the failure of which to obtain would not
reasonably be expected to have a Material Adverse Effect.
SECTION 4.13. Investment Company Act; Public Utility Holding Company Act.
-----------------------------------------------------------
The Borrower is not (x) an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended, (y) a "holding company" or a "subsidiary company" of a "holding
company" or an "affiliate" of either a "holding company" or a "subsidiary
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended, or (z) subject to any other Requirement which purports to restrict
or regulate its ability to borrow money.
SECTION 4.14. Closing Date Transactions. On the Closing Date and
-------------------------
immediately prior to or concurrently with the making of the Loans, the
transactions (other than the making of the Loans) intended to be consummated on
the Closing Date will have been consummated in accordance with all applicable
laws. On or prior to the Closing Date, all consents and approvals of, and
filings and registrations with, and all other actions by, any Person required in
order to make or consummate such transactions have been obtained, given, filed
or taken and are in full force and effect, other than those the failure of which
to obtain would not reasonably be expected to have a Material Adverse Effect.
SECTION 4.15. Representations and Warranties in Loan Documents. All
------------------------------------------------
representations and warranties made by the Borrower in the Loan Documents are
true and correct in all material respects.
50
SECTION 4.16. Patents, Trademarks, etc. The Borrower has obtained and
-------------------------
holds in full force and effect all patents, trademarks, service marks, trade
names, copyrights and other such rights, free from burdensome restrictions,
which are necessary for the operation of its business as presently conducted,
the impairment of which would reasonably be expected to have a Material Adverse
Effect. To the Borrower's knowledge, no material product, process, method,
substance, part or other material presently sold by or employed by the Borrower
in connection with such business infringes any patent, trademark, service ▇▇▇▇,
trade name, copyright, license or other such right owned by any other Person.
There is not pending or, to the Borrower's knowledge, overtly threatened any
claim or litigation against or affecting the Borrower contesting its right to
sell or use any such product, process, method, substance, part or other
material.
SECTION 4.17. No Default. No Default or Event of Default exists under or
----------
with respect to any Loan Document. The Borrower is not in default in any
material respect beyond any applicable grace period under or with respect to any
other material agreement, instrument or undertaking to which it is a party or by
which it or any of its property is bound in any respect, the existence of which
default would reasonably be expected to result in a Material Adverse Effect.
SECTION 4.18. Licenses, etc. The Borrower has obtained and holds in full
--------------
force and effect, all franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights of way and
other consents and approvals which are necessary for the operation of its
businesses as presently conducted, the absence of which would reasonably be
expected to have a Material Adverse Effect.
SECTION 4.19. Compliance With Law. The Borrower is in compliance with all
-------------------
laws, rules, regulations, orders, judgments, writs and decrees, including,
without limitation, all building and zoning ordinances and codes, the failure
to comply with which would reasonably be expected to have a Material Adverse
Effect.
SECTION 4.20. No Burdensome Restrictions. The Borrower is not a party to
--------------------------
any agreement or instrument or subject to any other obligation or any charter or
corporate or partnership restriction, as the case may be, which, individually
or in the aggregate, would reasonably be expected to have a Material Adverse
Effect.
51
SECTION 4.21. Brokers' Fees. The Borrower has not dealt with any broker
-------------
or finder with respect to the transactions contemplated by the Loan Documents
(except with respect to the acquisition or disposition of Real Property Assets)
or otherwise in connection with this Agreement, and the Borrower has not done
any acts, had any negotiations or conversations, or made any agreements or
promises which will in any way create or give rise to any obligation or
liability for the payment by the Borrower of any brokerage fee, charge,
commission or other compensation to any party with respect to the transactions
contemplated by the Loan Documents (except with respect to the acquisition or
disposition of Real Property Assets), other than the fees payable hereunder.
SECTION 4.22. Labor Matters. There are no collective bargaining
-------------
agreements or Multiemployer Plans covering the employees of the Borrower and
the Borrower has not suffered any strikes, walkouts, work stoppages or other
material labor difficulty within the last five (5) years.
SECTION 4.23. Organizational Documents. The documents delivered pursuant
------------------------
to Section 3.1(e) constitute, as of the Closing Date, all of the organizational
documents (together with all amendments and modifications thereof) of the
Borrower. The Borrower represents that it has delivered to the Lead Agent true,
correct and complete copies of each of the documents set forth in this Section
4.23.
SECTION 4.24. [Reserved]
--------
SECTION 4.25. Principal Offices. The principal office, chief executive
-----------------
office and principal place of business of the Borrower is ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
SECTION 4.26. REIT Status. For the fiscal year ended December 31, 1998,
-----------
the Guarantor, the general partner of the Borrower, will qualify and intends to
continue thereafter to qualify as a real estate investment trust under the
Internal Revenue Code.
SECTION 4.27. Ownership of Property. Schedule 4.27 attached hereto and
--------------------- -------------
made a part hereof sets forth all of the Real Property Assets as of the Closing
Date and the record owner thereof. As of the Closing Date, the Borrower or
such record owner has good and insurable fee simple title (or leasehold title if
so designated on Schedule 4.27) to all of such Real Property Assets, subject to
-------------
no Liens other than Permitted Liens. As of the date of this Agreement, there
are no mortgages, deeds
52
of trust, indentures, debt instruments or other agreements creating a Lien
against any of the Real Property Assets, except as disclosed on Schedule 4.27.
-------------
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Bank has any
Commitment hereunder or any Obligations remain unpaid:
SECTION 5.1. Information. The Borrower will deliver to the Lead Agent
-----------
and to each of the Banks:
(a) as soon as available and in any event within 90 days after the end
of each fiscal year of the Borrower, an audited consolidated balance sheet of
the Borrower, the Guarantor and their Consolidated Subsidiaries as of the end
of such fiscal year and the related consolidated statements of cash flow and
operations for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or
other independent public accountants of similar standing;
(b) as soon as available and in any event within forty-five (45) days
after the end of each quarter of each fiscal year (other than the last quarter
in any fiscal year) of the Borrower, an unaudited consolidated balance sheet of
the Borrower, the Guarantor and their Consolidated Subsidiaries as of the end of
such fiscal quarter and the related consolidated statements of cash flow and
operations for such fiscal quarter, setting forth in each case in comparative
form the figures for the previous fiscal quarter;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer or the chief accounting officer of the Borrower (i) setting
forth in reasonable detail the calculations required to establish whether the
Borrower was in compliance with the requirements of Section 5.8 on the date of
such financial statements; (ii) stating whether any Default exists on the date
of such certificate and, if any Default then exists, setting forth the details
thereof and the action which the Borrower is taking or proposes to take with
respect thereto; and (iii) certifying (x) that such financial statements
fairly present the financial condition and the results of operations of the
Borrower as of the dates and for the periods indicated,
53
in accordance with GAAP, subject, in the case of interim financial statements,
to normal year-end adjustments and omission of required footnotes, and (y) that
such officer has reviewed the terms of the Loan Documents and has made, or
caused to be made under his or her supervision, a review in reasonable detail of
the business and condition of the Borrower during the period beginning on the
date through which the last such review was made pursuant to this Section 5.1(c)
(or, in the case of the first certification pursuant to this Section 5.1(c), the
Closing Date) and ending on a date not more than ten (10) Domestic Business Days
prior to the date of such delivery and that (1) on the basis of such financial
statements and such review of the Loan Documents, no Event of Default existed
under Section 6.1(b) with respect to Section 5.8 at or as of the date of said
financial statements, (2) on the basis of such review of the Loan Documents and
the business and condition of the Borrower, to the actual knowledge of such
officer, no Default or Event of Default under any other provision of Section 6.1
occurred or, if any such Default or Event of Default has occurred and is then
continuing, specifying the nature and extent thereof and, if continuing, the
action the Borrower proposes to take in respect thereof and (3) on the basis of
such review of the Loan Documents and the business and condition of the
Borrower, no Mandatory Prepayment Event then exists or has existed during the
period since the last review pursuant to this Section 5.1(c);
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of a firm of independent
public accountants confirming the calculations set forth in the officer's
certificate delivered simultaneously therewith pursuant to clause (c) above;
(e) (i) within five (5) days after the president, chief financial
officer, treasurer, controller or other executive officer of the Borrower
obtains actual knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer or the president of the Borrower
setting forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto; (ii) promptly and in any event within ten
(10) days after the Borrower obtains actual knowledge thereof, notice of (x) any
litigation or governmental proceeding pending or threatened against the
Borrower which would reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Effect, and (y) any other event, act or
condition which would reasonably be expected to result in a Material Adverse
Effect;
54
(f) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or appoint a trustee to administer any Plan, a
copy of such notice; (iv) applies for a waiver of the minimum funding standard
under Section 412 of the Internal Revenue Code, a copy of such application; (v)
gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a
copy of such notice and other information filed with the PBGC; (vi) gives notice
of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could
result in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer of
the Borrower setting forth details as to such occurrence and action, if any,
which the Borrower or, if the Borrower has actual knowledge thereof, the
applicable member of the ERISA Group is required or proposes to take;
(g) promptly and in any event within five (5) Domestic Business Days
after the Borrower obtains actual knowledge of any of the following events, a
certificate of the Borrower executed by an officer of the Borrower specifying
the nature of such condition and the Borrower's, if the Borrower has actual
knowledge thereof, or otherwise the Environmental Affiliate's, proposed initial
response thereto: (i) the receipt by the Borrower, or, if the Borrower has
actual knowledge thereof, any of the Environmental Affiliates, of any
communication (written or oral), whether from a Governmental Authority, citizens
group, employee or otherwise, that alleges that the Borrower, or, if the
Borrower has actual knowledge thereof, any of the Environmental Affiliates, is
not in compliance with applicable Environmental Laws, and such noncompliance
would reasonably be expected to have a Material Adverse Effect, (ii) the
Borrower shall obtain
55
actual knowledge that there exists any Environmental Claim pending or threatened
against the Borrower or any Environmental Affiliate which would reasonably be
expected to have a Material Adverse Effect or (iii) the Borrower obtains actual
knowledge of any Release or disposal of any Material of Environmental Concern
that would reasonably be expected to form the basis of any Environmental Claim
against the Borrower or any Environmental Affiliate which would reasonably be
expected to have a Material Adverse Effect;
(h) promptly and in any event within five (5) Domestic Business Days
after receipt of any material notices or correspondence from any company or
agent for any company providing insurance coverage to the Borrower relating to
any material loss or loss of the Borrower with respect to any of the Real
Property Assets, copies of such notices and correspondence;
(i) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Guarantor, the general partner of the Borrower, shall
have filed with the Securities and Exchange Commission;
(j) promptly upon the mailing thereof to the shareholders of the
Guarantor, copies of all financial statements, reports and proxy statements so
mailed;
(k) [reserved]
(l) within forty-five (45) days after June 30 and December 31, a
statement containing a listing of all new construction projects and Real
Property Assets then undergoing significant rehabilitation;
(m) simultaneously with the delivery of the information required by
Sections 5.1(a) and 5.1(b), a statement of Unencumbered Asset Pool Net Operating
Cash Flow and a list of the Unencumbered Asset Pool Properties;
(n) within forty-five (45) days after the end of each quarter of each
fiscal year of Borrower, an updated Schedule 4.27, certified by the chief
financial officer or chief accounting officer of the Borrower as true, correct
and complete as of the date such updated schedule is delivered;
(o) within thirty (30) days after filing of the annual income tax
return with the Internal Revenue Service,
56
a certificate of the chief financial officer or chief accounting officer of the
Borrower certifying that Guarantor is properly classified and continues to
qualify as a real estate investment trust under the Internal Revenue Code and
has taken all actions consistent with maintaining such status;
(p) promptly upon receipt thereof, any notice or communication from
any Rating Agency regarding any change in Borrower's Credit Rating;
(q) within forty-five (45) days after the end of each quarter of each
fiscal year of Borrower, a certificate of the chief financial officer or chief
accounting officer of Borrower certifying whether or not each Unencumbered Asset
Pool Property has maintained the Required Occupancy Level for the previous
twelve (12) month period (as of the end of such quarter); and
(r) from time to time such additional information regarding the
financial position or business of the Borrower as the Lead Agent, at the request
of any Bank, may reasonably request.
SECTION 5.2. Payment of Obligations. The Borrower will pay and
----------------------
discharge, at or before maturity, all its material obligations and liabilities
including, without limitation, any obligation pursuant to any agreement by which
it or any of its properties is bound and any tax liabilities, in any case, where
failure to do so will likely result in a Material Adverse Effect except (i) such
tax liabilities may be contested in good faith by appropriate proceedings, and
will maintain in accordance with GAAP, appropriate reserves for the accrual of
any of the same; or (ii) such obligation or liability as may be contested in
good faith by appropriate proceedings.
SECTION 5.3. Maintenance of Property; Insurance.
----------------------------------
(a) The Borrower will keep each of the Real Property Assets in good
repair, working order and condition, subject to ordinary wear and tear.
(b) The Borrower shall (a) maintain, with reputable insurers,
insurance coverages in such amounts, against such risks and having such
deductibles as is customary from time to time for properties similar to the Real
Property Assets which are owned and/or operated by prudent Persons similar to
the Borrower, which insurance shall in any event not provide for materially less
coverage than the insurance in effect on the Closing Date, and (b) furnish to
each Bank from time to time, upon written request, copies of the policies under
which such insurance
57
is issued, certificates of insurance and such other information relating to such
insurance as such Bank may reasonably request. The Borrower will deliver to the
Banks (i) upon request of any Bank through the Lead Agent from time to time,
full information as to the insurance carried, (ii) within five (5) days of
receipt of notice from any insurer, a copy of any notice of cancellation or
material change in coverage from that existing on the date of this Agreement and
(iii) forthwith, notice of any cancellation or nonrenewal of coverage by the
Borrower.
SECTION 5.4. Conduct of Business. The Borrower will continue to engage
-------------------
in business of the same general type as described in the offering materials for
the IPO.
SECTION 5.5. Compliance with Laws. The Borrower will comply with all
--------------------
applicable Requirements of Governmental Authorities (including, without
limitation, Environmental Laws, all zoning and building codes and ERISA and
the rules and regulations thereunder), except where (a) the necessity of
compliance therewith is contested in good faith by appropriate proceedings or
(b) the failure to comply would not reasonably be expected to result in a
Material Adverse Effect.
SECTION 5.6. Inspection of Property, Books and Records. The Borrower
-----------------------------------------
will keep proper books of record and account in which full, true and correct
entries shall be made of all dealings and transactions in relation to its
business and activities; and will permit representatives of any Bank at such
Bank's expense to visit and inspect any of its properties to examine and make
abstracts from any of its books and records and to discuss its affairs, finances
and accounts with its officers and employees, all at such reasonable times, upon
reasonable notice, and as often as may reasonably be desired.
SECTION 5.7. Existence.
---------
(a) Except as permitted in Section 5.9, the Borrower shall do or cause
to be done all things necessary to preserve and keep in full force and effect
its limited partnership existence.
(b) The Borrower shall do or cause to be done all things necessary to
preserve and keep in full force and effect its patents, trademarks,
servicemarks, trade names, copyrights, franchises, licenses, permits,
certificates, authorizations, qualifications, accreditations, easements, rights
of way and other rights, consents and approvals the nonexistence of which would
reasonably be expected to have a Material Adverse Effect.
58
SECTION 5.8. Financial Covenants.
-------------------
(a) Total Debt to Tangible FMV. As of the last day of each calendar
--------------------------
quarter, the Total Debt Ratio will not be greater than 50%.
(b) EBITDA Interest Coverage. As of the last day of each calendar
------------------------
quarter, the ratio of (i) Annual EBITDA to (ii) all interest (whether accrued,
paid or capitalized) actually payable by the Borrower and/or the Guarantor on
their respective Debt for the previous four (4) consecutive quarters, including
the quarter then ended, will not be less than 2.25:1.
(c) EBITDA Debt Service Coverage. As of the last day of each calendar
----------------------------
quarter, the ratio of (i) Annual EBITDA to (ii) the sum of (x) Total Debt
Service and (y) a reserve for Capital Expenditures of $0.35 per square foot per
annum for each Real Property Asset, will not be less than 1.75:1.
(d) EBITDA Coverage. As of the last day of each calendar quarter, the
---------------
ratio of (x) Annual EBITDA to (y) the sum of (i) Total Debt Service, (ii) the
greater of (A) actual Capital Expenditures of the Borrower for the previous four
(4) consecutive quarters including the quarter then ended and (B) reserves for
Capital Expenditures of $0.35 per square foot per annum for each Pool Property
Asset and (iii) dividends or other payments payable by the Guarantor with
respect to any preferred stock issued by the Guarantor and distributions or
other payments payable by the Borrower with respect to any preferred partnership
units of the Borrower, will not be less than 1.25:1.
(e) Unencumbered Debt Service Coverage. As of the last day of each
----------------------------------
calendar quarter and as of the date of any sale or secured financing of any
Unencumbered Asset Pool Property, the ratio of (i) Unencumbered Asset Pool Net
Operating Cash Flow to (ii) Pro-forma Debt Service will not be less than 2:1.
(f) Unsecured Debt Ratio. As of each of (x) the last day of each
--------------------
calendar quarter, (y) the date of any New Acquisition and (z) any Borrowing, the
Unsecured Debt Ratio shall not exceed 50%.
(g) Limitation on Secured Debt. Secured Debt of the Borrower, the
--------------------------
Guarantor and their Consolidated Subsidiaries shall at no time exceed thirty
percent (30%) of Tangible FMV.
59
(h) Dividends. The Borrower shall not permit the Guarantor to pay any
---------
dividends which, when aggregated with other dividends of the Guarantor in any
year, are in excess of 90% of the Guarantor's consolidated FFO for such year;
provided, however, that the Guarantor may pay dividends in excess of such amount
if and to the extent that the same are either (i) necessary to maintain the
Guarantor's status as a real estate investment trust or (ii) prior to an Event
of Default, necessary to avoid the assessment of any excise tax upon the
Guarantor. During the continuance of an Event of Default under Section 6.1(a),
the Borrower shall only permit the Guarantor to pay those dividends necessary to
maintain its status as a real estate investment trust.
(i) Minimum Consolidated Tangible Net Worth. The Consolidated Tangible
---------------------------------------
Net Worth will at no time be less than the sum of (x) $700,000,000 and (y) 90%
of the Net Offering Proceeds from and after the date hereof.
(j) Required Occupancy Level. The aggregate Unencumbered Asset Pool
------------------------
Property Value for Unencumbered Asset Pool Properties which have failed to
maintain the Required Occupancy Level for the three (3) month period prior to
such date shall not comprise more than 20% of the aggregate Unencumbered Asset
Pool Property Value for all Unencumbered Asset Pool Properties (including the
Unencumbered Asset Pool Properties which have failed to so maintain the Required
Occupancy Level).
(k) Distributions. From and after the occurrence and during the
-------------
continuance of an Event of Default, the Borrower shall not make any
distributions or pay any dividends to any of its partners, unless (and only to
the extent that) such distributions are necessary to maintain the Guarantor's
status as a real estate investment trust.
(l) Pro Forma Adjustments. Notwithstanding anything contained herein
---------------------
to the contrary, in connection with the calculation of Annual EBITDA, Net
Operating Income, Total Debt Service, Unencumbered Asset Pool Net Operating Cash
Flow, and Unencumbered Asset Pool Properties Value, as of the Closing, and as
of March 31, 1998, such calculations shall be based upon the pro forma financial
--- -----
statements, dated as of December 31, 1997). In addition, commencing June 30,
1998, and for the quarters ending June 30, 1998, September 30, 1998 and December
31, 1998, such calculations shall be based on the most recent quarterly
financial statements then available (commencing with the quarter ending June 30,
1998), annualized for the period commencing April 1, 1998. In addition, for
purposes of calculating Tangible FMV as of the Closing and as of March 31, 1998,
the pro forma financial statements,
--- -----
60
dated as of December 31, 1997, shall be adjusted to reflect the acquisition of
any Real Property Asset during the period from January 1, 1998 through March 31,
1998.
SECTION 5.9. Restriction on Fundamental Changes; Operation and Control.
---------------------------------------------------------
(a) The Guarantor shall carry on its business operations substantially
through the Borrower and its Consolidated Subsidiaries. Neither the Borrower nor
the Guarantor shall enter into any merger or consolidation, unless (i) the
Borrower or the Guarantor is the surviving entity, (ii) the entity which is
merged into the Borrower or the Guarantor is primarily engaged in the commercial
real estate business, (iii) the creditworthiness of the surviving entity's long
term unsecured debt or implied senior debt, as applicable, is not lower than the
Borrower's Credit Rating as of the date two (2) months immediately prior to such
merger, and (iv) in the case of any merger where the then fair market value of
the assets of the entity which is merged into the Borrower or the Guarantor is
twenty-five percent (25%) or more of the then Tangible FMV, the Lead Agent
consents thereto in writing, which consent shall not be unreasonably withheld,
conditioned or delayed. Neither the Borrower nor the Guarantor shall (A)
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution),
discontinue its business or convey, lease, sell, transfer or otherwise dispose
of, in one transaction or series of transactions, all or any substantial part of
its business or property, whether now or hereafter acquired, (B) hold an
interest in any subsidiary which is not controlled by the Borrower or the
Guarantor, as applicable, except for non-qualified real estate investment trust
subsidiaries which are not controlled by the Borrower and/or the Guarantor but
as to which the Borrower and/or the Guarantor shall own substantially all of the
economic interests or (C) enter into other business lines, without the prior
written consent of the Required Banks (which consent shall not be unreasonably
withheld, conditioned or delayed), except for joint ventures in which the
Guarantor's or the Borrower's ownership interest shall be less than fifteen
(15%) of Tangible FMV. Nothing in this Section shall be deemed to prohibit the
sale or leasing of portions of the Real Property Assets in the ordinary course
of business of the Borrower, the Guarantor and/or their Consolidated
Subsidiaries.
(b) The Borrower shall not amend its Partnership Documents in any
material respect, without the Lead Agent's consent, which shall not be
unreasonably withheld or delayed.
61
(c) The Borrower shall deliver to the Lead Agent copies of all
amendments to its partnership agreement, partnership certificate, or other
organizational documents no less than ten (10) days after the effective date of
any such amendment.
SECTION 5.10. Changes in Business. The Borrower shall not enter into any
-------------------
business which is substantially different from the acquisition, ownership,
development, management or operation of industrial real estate or the
acquisition and ownership of vacant land for the purposes of developing
industrial real estate (subject, however, to the limitations set forth herein).
SECTION 5.11. Affiliate Transactions. Neither the Borrower nor any of its
----------------------
Subsidiaries shall directly or indirectly enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder or
holders of more than five percent (5%) of any class of equity Securities of the
Borrower, or with any Affiliate of the Borrower which is not its Subsidiary, on
terms which in the aggregate are less favorable to the Borrower or any of its
Subsidiaries than those that might be obtained in an arm's length transaction at
the time from Persons who are not such a holder or Affiliate.
SECTION 5.12. Fiscal Year; Fiscal Quarter. The Borrower shall not change
---------------------------
its fiscal year or any of its fiscal quarters without the Lead Agent's consent,
which shall not be unreasonably withheld, conditioned or delayed.
SECTION 5.13. Margin Stock. None of the proceeds of the Loan will be
------------
used, directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any Margin Stock.
SECTION 5.14. Use of Proceeds. The Borrower shall use the proceeds of the
---------------
Loans solely (i) to facilitate the acquisition by the Borrower or the Guarantor
(either directly or indirectly through Subsidiaries) of real properties (or
interests therein) (the "New Acquisitions") located in the United States which
----------------
are primarily industrial (including warehouse/distribution, light industrial and
light assembly), it being understood that the Borrower may distribute, lend or
otherwise transfer the proceeds of a Loan to the Guarantor or a Subsidiary of
the Borrower or the Guarantor for such purpose, (ii) for other purposes related
to the acquisition of such properties (including, without limitation, the
payment of fees and other costs related to such acquisition),
62
(iii) for construction and development related purposes, or (iv) for working
capital purposes and/or for the acquisition of Unimproved Land, not to exceed
$40,000,000 in the aggregate outstanding at any time (collectively, "Approved
--------
Uses").
----
SECTION 5.15. Interest Rate Protection. The Borrower and the Guarantor
------------------------
shall maintain Interest Rate ▇▇▇▇▇▇ on a notional amount of the Debt of the
Borrower, the Guarantor and their Subsidiaries which, when added to the
aggregate principal amount of the Debt of the Borrower, the Guarantor and
their Subsidiaries which bears interest at a fixed rate, equals or exceeds 75%
of the aggregate principal amount of all Debt of the Borrower, the Guarantor and
their Subsidiaries. "Interest Rate ▇▇▇▇▇▇" shall mean interest rate exchange,
--------------------
collar, cap, swap, adjustable strike cap, adjustable strike corridor or similar
agreements having terms, conditions and tenors reasonably acceptable to the Lead
Agent entered into by the Borrower, the Guarantor and/or their Subsidiaries in
order to provide protection to, or minimize the impact upon, the Borrower, the
Guarantor and/or their Subsidiaries of increasing floating rates of interest
applicable to Debt.
SECTION 5.16. Liens; Release of Liens. None of the Borrower, the
-----------------------
Guarantor or any of their Subsidiaries shall, at any time during the Term,
directly or indirectly create, incur, assume or permit to exist any Lien for
borrowed monies or any other Lien (except for Permitted Liens) on or with
respect to any Unencumbered Asset Pool Property, unless the same is being
contested in good faith or the same is discharged, bonded off or paid within
thirty (30) days of filing of such Lien. Notwithstanding the foregoing, the
Borrower may obtain a release of any Unencumbered Asset Pool Property from the
terms of this Agreement provided that the Borrower has complied with Section
2.9(a) and prior to or simultaneously with such release (i) the Borrower shall
pay to the Lead Agent any amounts due pursuant to Section 2.9(a) and (ii) the
Borrower delivers to the Lead Agent a certificate from its chief financial
officer or chief accounting officer certifying that, at the time of the release,
(a) all of the covenants contained in Sections 5.8, 5.9, 5.16 and 5.17 are and,
after giving effect to the transaction, shall continue to be true and accurate
in all respects and (b) assuming the sale, transfer or conveyance is actually
consummated, to the actual knowledge of such officer, no Default or Event of
Default under any other provision of Section 6.1 has occurred and is then
continuing. In the event that a Separate Parcel that originally formed a part
of a Unencumbered Asset Pool Property is to be released from the terms of this
Agreement and
63
Borrower otherwise complies with the provisions hereof with respect thereto, the
value of such Separate Parcel (and the remaining portion of the Unencumbered
Asset Pool Property) will be determined by Lead Agent at the time of the release
in its sole discretion.
SECTION 5.17. Sale of Unencumbered Asset Pool Properties. Prior to the
------------------------------------------
sale or transfer of any Unencumbered Asset Pool Property, the Borrower shall (i)
deliver prior written notice to the Lead Agent, (ii) deliver to the Lead Agent a
certificate from its chief financial officer or chief accounting officer
certifying that at the time of such sale or other disposal (based on pro-forma
calculations for the previous period assuming that such Unencumbered Asset Pool
Property was not an Unencumbered Asset Pool Property for the relevant period)
all of the covenants contained in Sections 5.8, 5.9, 5.16 and 5.17 are and after
giving effect to the transaction shall continue to be true and accurate in all
respects, and (iii) pay to the Agent an amount equal to that required pursuant
to Section 2.9(a). In the event that a Separate Parcel that originally formed a
part of an Unencumbered Asset Pool Property is to be sold or transferred, the
value of the remaining portion of the Unencumbered Asset Pool Property will be
determined by Lead Agent at the time of sale or transfer in its sole discretion.
SECTION 5.18. Development Activities. Neither the Borrower, the Guarantor
----------------------
nor any of their Consolidated Subsidiaries shall invest, in the aggregate as to
all such Persons at any given time, amounts in excess of fifteen percent (15%)
of Tangible FMV in any current development and construction activities other
than (i) development of "build-to-suit" improvements in excess of 85% pre-leased
to tenants (in connection with which the Borrower, the Guarantor and their
Consolidated Subsidiaries shall have no construction completion risk) or (ii)
development in connection with the expansion and/or repositioning or restoration
following a casualty or condemnation of existing improvements on Real Property
Assets.
SECTION 5.19. REIT Status. The Guarantor shall at all times (i) remain a
-----------
publicly traded company listed on the New York Stock Exchange, and (ii) for the
tax years ending on or after December 31, 1998, maintain its status as a self-
directed and self-administered real estate investment trust under the Internal
Revenue Code.
64
ARTICLE VI
DEFAULTS
SECTION 6.1. Events of Default. If one or more of the following events
-----------------
("Events of Default") shall have occurred and be continuing:
-----------------
(a) the Borrower shall fail to pay when due any principal of any Loan, or
the Borrower shall fail to pay within three (3) Domestic Business Days after the
same is due any interest on any Loan, or the Borrower shall fail to pay within
ten (10) Domestic Business Days after the same is due any fees or other amounts
payable hereunder;
(b) the Borrower or the Guarantor shall fail to observe or perform any
covenant contained in Section 5.3 or Sections 5.8 to 5.18, inclusive;
(c) the Borrower or the Guarantor shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those covered by
clause (a) or (b) above) for thirty (30) days after written notice thereof has
been given to the Borrower by the Lead Agent;
(d) any representation, warranty, certification or statement made by the
Borrower in this Agreement or in any certificate, financial statement or other
document delivered pursuant to this Agreement shall prove to have been incorrect
in any material respect when made (or deemed made);
(e) the Borrower, the Guarantor or any of their Consolidated Subsidiaries
shall default in the payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) of any amount owing in respect of
any Recourse Debt or Debt guaranteed by the Borrower, the Guarantor or any of
their Consolidated Subsidiaries (other than the Obligations) equal to or in
excess of $5,000,000 in the aggregate, and such default shall continue beyond
the giving of any required notice and the expiration of any applicable grace
period (as the same may be extended by the applicable lender) and such default
shall not be waived by the applicable lender (which waiver shall serve to
reinstate the applicable loan), or the Borrower, the Guarantor or any of their
Consolidated Subsidiaries shall default in the performance or observance of any
obligation or condition with respect to any such Debt or any other event shall
occur or condition exist beyond the giving of any required notice and the
expiration of any applicable grace period (as the same may be extended by the
applicable lender), if in any such case as a result of such default,
65
event or condition, the lender thereof shall accelerate the maturity of any such
Debt or to permit (without any further requirement of notice or lapse of time)
the holder or holders thereof, or any trustee or agent for such holders, to
accelerate the maturity of any such Debt and such default shall not be waived by
the applicable lender (which waiver shall serve to reinstate the applicable
loan), or any such Debt shall become or be declared to be due and payable prior
to its stated maturity other than as a result of a regularly scheduled payment;
(f) the Borrower or the Guarantor shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under the Bankruptcy Code or any other bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any action to authorize any of the
foregoing;
(g) an involuntary case or other proceeding shall be commenced against the
Borrower or the Guarantor seeking liquidation, reorganization or other relief
with respect to it or its debts under the Bankruptcy Code or any other
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered against the Borrower
under the Bankruptcy Code;
(h) the Borrower or the Guarantor shall default in its obligations under
any Loan Document other than this Agreement beyond any applicable notice and
grace periods;
(i) any member of the ERISA Group shall fail to pay when due an amount or
amounts aggregating in excess of $5,000,000 which it shall have become liable to
pay under Title IV of ERISA, or notice of intent to terminate a Material Plan
shall be filed under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing, or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under
66
Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer any Material Plan, or a condition shall exist by reason of which the
PBGC would be entitled to obtain a decree adjudicating that any Material Plan
must be terminated, or there shall occur a complete or partial withdrawal from,
or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect
to, one or more Multiemployer Plans which could cause one or more members of the
ERISA Group to incur a current payment obligation in excess of $5,000,000 in the
aggregate;
(j) one or more final nonappealable judgments or decrees in an aggregate
amount equal to or greater than six percent (6%) of Consolidated Tangible Net
Worth as of such date shall be entered by a court or courts of competent
jurisdiction against the Borrower or the Guarantor (other than any judgment as
to which, and only to the extent, a reputable insurance company has acknowledged
coverage of such claim in writing) and (i) any such judgments or decrees shall
not be stayed, discharged, paid, bonded or vacated within sixty (60) days (or
bonded, vacated or satisfied within sixty (60) after any stay is lifted) or (ii)
enforcement proceedings shall be commenced by any creditor on any such judgments
or decrees;
(k) (i) any Environmental Claim shall have been asserted against the
Borrower or any Environmental Affiliate, or (ii) any Release or disposal of
any material amount of Material of Environmental Concern shall have occurred,
and such event is reasonably likely to form the basis of an Environmental Claim
against the Borrower or any Environmental Affiliate, in the case of clauses (i)
or (ii) above, if the existence of such condition has had or is reasonably
likely to have a Material Adverse Effect;
(l) for any tax years ending on or after December 31, 1998, the Guarantor
shall cease to qualify as a real estate investment trust under the Internal
Revenue Code;
(m) during any consecutive two (2) year period commencing on or after the
date hereof, individuals who at the beginning of such period constituted the
Board of Trustees of the Guarantor (together with any new directors whose
election by the Board of Trustees or whose nomination for election by the
Guarantor's stockholders was approved by a vote of at least a majority of the
members of the Board of Trustees then in the office who either were members of
the Board of Trustees at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
67
reason to constitute a majority of the members of the Board of Trustees then in
office; or
(n) the Borrower shall fail to meet an exemption under the Plan Assets
Regulations which would prevent the assets of the Borrower from being subject to
Title I of ERISA; or the Borrower shall take any action, or omit to take any
action, which gives rise to a nonexempt prohibited transaction (as such term
is defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA)
that could subject the Lead Agent and/or any Bank to any tax or penalty on
prohibited transactions imposed under Section 4975 of the Internal Revenue Code
or Section 502(i) of ERISA.
SECTION 6.2. Rights and Remedies. Upon the occurrence of any Event of
-------------------
Default described in Sections 6.1(f) or (g), the unpaid principal amount of, and
any and all accrued interest on, the Loans and any and all accrued fees and
other Obligations hereunder shall automatically become immediately due and
payable, with all additional interest from time to time accrued thereon and
without presentation, demand, or protest or other requirements of any kind
(including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and notice of
acceleration), all of which are hereby expressly waived by the Borrower; and
upon the occurrence and during the continuance of any other Event of Default,
the Lead Agent may (and shall, at the instruction of the Required Banks)
exercise any of its rights and remedies hereunder and by written notice to the
Borrower, declare the unpaid principal amount of and any and all accrued and
unpaid interest on the Loans and any and all accrued fees and other
Obligations hereunder to be, and the same shall thereupon be, immediately due
and payable with all additional interest from time to time accrued thereon and
without presentation, demand, or protest or other requirements of any kind other
than as provided in the Loan Documents (including, without limitation, valuation
and appraisement, diligence, presentment, and notice of intent to demand or
accelerate), all of which are hereby expressly waived by the Borrower.
SECTION 6.3. Notice of Default. If the Lead Agent shall not already have
-----------------
given any notice to the Borrower under Section 6.1, the Lead Agent shall give
notice to the Borrower under Section 6.1 promptly upon being requested to do so
by the Required Banks and shall thereupon notify all the Banks thereof. Upon
obtaining actual knowledge of a Default or Event of Default, the Lead Agent and
each Bank, as applicable, shall promptly deliver written notice thereof to, in
the case of the Lead Agent's
68
obtaining such knowledge, the other Banks, and in the case of a Bank's obtaining
such knowledge, to the Lead Agent and the other Banks.
ARTICLE VII
THE LEAD AGENT
SECTION 7.1. Appointment and Authorization. Each Bank irrevocably
-----------------------------
appoints and authorizes the Lead 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 Lead Agent by the terms hereof or thereof,
together with all such powers as are reasonably incidental thereto.
SECTION 7.2. Lead Agent and Affiliates. ▇▇▇▇▇▇ shall have the same
-------------------------
rights and powers under this Agreement as any other Bank and may exercise or
refrain from exercising the same as though it were not the Lead Agent, and
▇▇▇▇▇▇ and its affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrower or any Subsidiary or
Affiliate of the Borrower as if it were not the Lead Agent hereunder, and the
term "Bank" and "Banks" shall include ▇▇▇▇▇▇ in its individual capacity.
SECTION 7.3. Action by Lead Agent. The obligations of the Lead Agent
--------------------
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Lead Agent shall not be required to take any
action with respect to any Default, except as expressly provided in Article VI.
SECTION 7.4. Consultation with Experts. The Lead Agent may consult with
-------------------------
legal counsel (who may be counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.5. Liability of Lead Agent. Neither the Lead Agent nor any of
-----------------------
its affiliates nor any of their respective directors, officers, agents or
employees shall be liable for any action taken or not taken by it in connection
herewith (i) with the consent or at the request of the Required Banks or,
where required by the terms of this Agreement, all of the Banks, or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Lead
Agent nor any of its directors, officers, agents or employees shall be
responsible for or
69
have any duty to ascertain, inquire into or verify (i) any statement, warranty
or representation made in connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any condition specified in
Article III, except receipt of items required to be delivered to the Lead Agent;
or (iv) the validity, effectiveness or genuineness of this Agreement, the other
Loan Documents or any other instrument or writing furnished in connection
herewith. The Lead Agent shall not incur any liability by acting in reliance
upon any notice, consent, certificate, statement, or other writing (which may be
a bank wire, telex or similar writing) believed by it in good faith to be
genuine or to be signed by the proper party or parties.
SECTION 7.6. Indemnification. Each Bank shall, ratably in accordance
---------------
with its Commitment, indemnify the Lead Agent, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement, the other
Loan Documents or any action taken or omitted by such indemnitees hereunder.
SECTION 7.7. Credit Decision. Each Bank acknowledges that it has,
---------------
independently and without reliance upon the Lead Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Lead
Agent or any other Bank, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking any action under this Agreement.
SECTION 7.8. Successor Lead Agent. The Lead Agent may resign at any time
--------------------
by giving notice thereof to the Banks and the Borrower. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Lead Agent with the consent of the Borrower provided that no Event of Default
shall have occurred and be continuing. If no successor Lead Agent shall have
been so appointed by the Required Banks, and shall have accepted such
appointment, within 30 days after the retiring Lead Agent gives notice of
resignation, then the retiring Lead Agent may, on behalf of the Banks, appoint a
successor Lead Agent, which shall be a commercial bank organized
70
or licensed under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $50,000,000. Upon
the acceptance of its appointment as the Lead Agent hereunder by a successor
Lead Agent, such successor Lead Agent shall thereupon succeed to and become
vested with all the rights and duties of the retiring Lead Agent, and the
retiring Lead Agent shall be discharged from its duties and obligations
hereunder first accruing or arising after the effective date of such retirement.
After any retiring Lead Agent's resignation hereunder as Lead Agent, the
provisions of this Article shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Lead Agent.
SECTION 7.9. Lead Agent's Fee. The Borrower shall pay to the Lead Agent
----------------
for its own account fees in the amounts and at the times previously agreed upon
between the Borrower and the Lead Agent.
SECTION 7.10. Copies of Notices. Lead Agent shall deliver to each Bank a
-----------------
copy of any notice sent to the Borrower by Lead Agent in connection with the
performance of its duties as Lead Agent hereunder.
ARTICLE VII
CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate Inadequate or Unfair.
--------------------------------------------------------
If on or prior to the first day of any Interest Period for any Euro-Dollar
Borrowing:
(a) the Lead Agent is advised by the Reference Bank that deposits in
dollars (in the applicable amounts) are not being offered to the Reference Bank
in the relevant market for such Interest Period, or
(b) Banks having 50% or more of the aggregate amount of the Commitments
advise the Lead Agent that the Adjusted London Interbank Offered Rate as
determined by the Lead Agent will not adequately and fairly reflect the cost to
such Banks of funding their Euro-Dollar Loans for such Interest Period, then the
Lead Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Lead Agent notifies the Borrower that the circumstances
giving rise to such suspension no longer exist, the obligations of the Banks to
make Euro-Dollar Loans shall be suspended. Unless the Borrower notifies the Lead
Agent at least two Domestic Business Days before the date of any
71
as yet unadvanced Euro-Dollar Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, such Borrowing
shall instead be made as a Base Rate Borrowing.
SECTION 8.2. Illegality. If, after the date of this Agreement, the
----------
adoption of any applicable law, rule or regulation, or any change in any
existing applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any Governmental Au thority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Euro-Dollar Lending Office) with any request or
directive (whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency shall make it unlawful or
impossible for any Bank (or its Euro-Dollar Lending Office) to make, maintain or
fund its Euro-Dollar Loans, and such Bank shall so notify the Lead Agent, the
Lead Agent shall forthwith give notice thereof to the other Banks and the
Borrower, whereupon until such Bank notifies the Borrower and the Lead Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be suspended. Before
giving any notice to the Lead Agent pursuant to this Section, such Bank shall
designate a different Euro-Dollar Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such Bank shall determine that it may
not lawfully continue to maintain and fund any of its outstanding Euro-Dollar
Loans to maturity and shall so specify in such notice, the Borrower shall
immediately prepay in full the then outstanding principal amount of each such
Euro-Dollar Loan, together with accrued interest thereon. Concurrently with
prepaying each such Euro-Dollar Loan, the Borrower shall borrow a Base Rate Loan
in an equal principal amount from such Bank (on which interest and principal
shall be payable contemporaneously with the related Euro-Dollar Loans of the
other Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.3. Increased Cost and Reduced Return.
---------------------------------
(a) If, after the date hereof, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental
72
Authority, central bank or comparable agency shall impose, modify or deem
applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System (but excluding
with respect to any Euro-Dollar Loan any such requirement reflected in an
applicable Euro-Dollar Reserve Percentage)), special deposit, insurance
assessment or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Bank (or its Applicable Lending Office)
or shall impose on any Bank (or its Applicable Lending Office) or on the London
interbank market any other condition affecting its Euro-Dollar Loans, its Note,
or its obligation to make Euro-Dollar Loans, and the result of any of the
foregoing is to increase the cost to such Bank (or its Applicable Lending
Office) of making or maintaining any Euro-Dollar Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Applicable Lending
Office) under this Agreement or under its Note with respect thereto, by an
amount deemed by such Bank to be material, then, within fifteen (15) days after
demand by such Bank (with a copy to the Lead Agent), which demand shall be
accompanied by a certificate showing, in reasonable detail, the calculation of
such amount or amounts, and provided such Bank is generally exercising rights
similar to those set forth in this Section 8.3(a) against other borrowers
similarly situated to the Borrower, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
(b) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on capital of such Bank (or its Parent) as a consequence of such
Bank's obligations hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within
fifteen (15) days after demand by such Bank (with a copy to the Lead Agent),
which demand shall be accompanied by a certificate showing, in reasonable
detail, the calculation of such amount or amounts, and provided such Bank
73
is generally exercising rights similar to those set forth in this Section 8.3(b)
against other borrowers similarly situated to the Borrower, the Borrower shall
pay to such Bank such additional amount or amounts as will compensate such Bank
(or its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the Lead Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be prima facie evidence of the
matters certified therein. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
SECTION 8.4. Taxes.
-----
(a) Any and all payments by the Borrower to or for the account of any Bank
or the Lead Agent hereunder or under any other Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Bank and the
---------
Lead Agent, taxes imposed on its income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Bank or the Lead Agent (as the
case may be) is organized or any political subdivision thereof and, in the case
of each Bank, taxes imposed on its income, and franchise or similar taxes
imposed on it, by the jurisdiction of such Bank's Applicable Lending Office or
any political subdivision thereof (and, if different from the jurisdiction of
such Bank's Applicable Lending Office, the jurisdiction of the domicile of its
Loans either established by the Bank pursuant to Section 9.12 or determined by
the applicable taxing authorities) (all such non-excluded taxes, duties, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to deduct
-----
any Taxes from or in respect of any sum payable hereunder or under any Note or
participation therein to any Bank or the Lead Agent, (i) the sum payable shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
8.4) such Bank or the Lead Agent (as the case may be) receives an amount equal
to the sum it would have received
74
had no such deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Borrower shall furnish to the Lead Agent, at its address referred to in Section
9.1, the original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any present or future stamp or
documentary taxes and any other excise or property taxes, or charges or similar
levies which arise from any payment made hereunder or under any Note or
participation therein or from the execution or delivery of, or otherwise with
respect to, this Agreement or any Note or participation therein (hereinafter
referred to as "Other Taxes").
-----------
(c) The Borrower agrees to indemnify each Bank and the Lead Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.4) paid by such Bank or the Lead Agent (as the case may be) and
any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto. Any payment required under this indemnification shall
be made within fifteen (15) days from the date such Bank or the Lead Agent (as
the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the United
States, on or prior to the date of its execution and delivery of this Agreement
in the case of each Bank listed on the signature pages hereof and on or prior to
the date on which it becomes a Bank in the case of each other Bank, and from
time to time thereafter if requested in writing by the Borrower (but only so
long as such Bank remains lawfully able to do so), shall provide the Borrower
with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first became a
party to this Agreement or at any time thereafter (other than solely by reason
of a change in United States law or a change in the terms of any treaty to which
the United States is a party after the date hereof) indicates a United States
interest withholding
75
tax rate in excess of zero (or would have indicated such a withholding tax rate
if such form had been submitted and completed accurately and completely and
either was not submitted or was not completed accurately and completely), or if
a Bank otherwise is subject to United States interest withholding tax at a rate
in excess of zero at any time for any reason (other than solely by reason of a
change in United States law or regulation or a change in any treaty to which the
United States is a party after the date hereof), withholding tax at such rate
shall be considered excluded from "Taxes" as defined in Section 8.4(a). In
addition, any amount that otherwise would be considered "Taxes" or "Other
Taxes" for purposes of this Section 8.4 shall be excluded therefrom if the Bank
either has transferred the domicile of its Loans pursuant to Section 9.12 or
changed the Applicable Lending Office with respect to such Loans and such amount
would not have been incurred had such transfer or change not been made.
(e) For any period with respect to which a Bank has failed to provide the
Borrower with the appropriate form pursuant to Section 8.4(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent
to the date on which a form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section 8.4(a) with respect to
Taxes imposed by the United States; provided, however, that should a Bank, which
-------- -------
is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Bank pursuant to this Section 8.4, then (i) such Bank will change
the jurisdiction of its Applicable Lending Office so as to eliminate or reduce
any such additional payment which may thereafter accrue if such change, in the
judgment of such Bank, is not otherwise disadvantageous to such Bank or (ii) in
the event that such Bank shall fail or refuse to change the jurisdiction of its
Applicable Lending Office within twenty (20) Domestic Business days after
written notice from the Borrower and no Event of Default shall then exist, the
Borrower shall have the right to either (A) designate an Assignee for such Bank,
which Bank shall assign and transfer to such Assignee all of such Bank's rights
and obligations under this Agreement at a purchase price mutually acceptable to
such Bank and such Assignee or (B) prepay the principal amount outstanding under
the Note held by such Bank, together with all accrued and
76
unpaid interest thereon and all other sums owed by Borrower to such Bank
hereunder or under the Loan Documents, whereupon the Commitment of such Bank
shall be reduced to zero.
SECTION 8.5. Base Rate Loans Substituted for Affected Euro-Dollar Loans.
-----------------------------------------------------------
If (i) the obligation of any Bank to make Euro-Dollar Loans has been suspended
pursuant to Sections 8.1 or 8.2 or (ii) any Bank has demanded compensation
under Section 8.3 or 8.4 with respect to its Euro-Dollar Loans and the Borrower
shall, by at least five (5) Euro-Dollar Business Days' prior notice to such Bank
through the Lead Agent, have elected that the provisions of this Section shall
apply to such Bank, then, unless and until such Bank notifies the Borrower that
the circumstances giving rise to such suspension or demand for compensation no
longer exist:
(a) all Loans which would otherwise be made by such Bank as Euro-Dollar
Loans shall be made instead as Base Rate Loans (on which interest and principal
shall be payable contemporaneously with the related Euro-Dollar Loans of the
other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all payments of
principal which would otherwise be applied to repay such Euro-Dollar Loans shall
be applied to repay its Base Rate Loans instead.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Notices. All notices, requests and other communications to
-------
any party hereunder shall be in writing (including bank wire, telex, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Borrower or the Lead Agent, at its address or telecopy number set
forth on the signature pages hereof, together with copies thereof, in the case
of the Borrower, to ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., Telephone: (312) 782-
0600, Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ and in the case of the Lead Agent, to Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq., Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Telecopy: (212)
735-2000, (y) in the case of any Bank, at its address or telecopy number set
forth on the signature pages hereof or in its Administrative Questionnaire or
(z) in the case of any party, such other address or telecopy number as such
party may hereafter specify for the purpose by notice to the Lead Agent, the
Banks and
77
the Borrower. Each such notice, request or other communication shall be
effective (i) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified in this Section, (ii) if given by United States mail,
72 hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
--------
notices to the Lead Agent under Article II or Article VIII shall not be
effective until received.
SECTION 9.2. No Waivers. No failure or delay by the Lead Agent or any
----------
Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.3. Expenses; Indemnification.
-------------------------
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses of
the Lead Agent (including, without limitation, reasonable fees and disbursements
of special counsel Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, local counsel for
the Lead Agent, and travel, site visits, third party reports, mortgage recording
taxes and environmental and engineering expenses), in connection with the
preparation and administration of this Agreement, the Loan Documents and the
documents and instruments referred to therein, the syndication of the Loans, any
waiver or consent hereunder or any amendment or modification hereof or any
Default or alleged Default hereunder and (ii) if an Event of Default occurs, all
out-of-pocket expenses incurred by the Lead Agent and each Bank, including,
without limitation, reasonable fees and disbursements of counsel for the Lead
Agent and the Banks, in connection with the enforcement of the Loan Documents
and the instruments referred to therein and such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom.
(b) The Borrower agrees to indemnify the Lead Agent and each Bank, their
respective Affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
----------
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel and settlements and settlement costs, which may be
incurred by such Indemnitee in connection
78
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto) that may at any time
(including, without limitation, at any time following the payment of the
Obligations) be imposed on, asserted against or incurred by any Indemnitee as a
result of, or arising out of, or in any way related to or by reason of, (i) any
of the transactions contemplated by the Loan Documents or the execution,
delivery or performance of any Loan Document (including, without limitation,
the Borrower's actual or proposed use of proceeds of the Loans, whether or not
in compliance with the provisions hereof), (ii) any violation by the Borrower or
the Environmental Affiliates of any applicable Environmental Law, (iii) any
Environmental Claim arising out of the management, use, control, ownership or
operation of property or assets by the Borrower or any of the Environmental
Affiliates, including, without limitation, all on-site and off-site activities
involving Material of Environmental Concern, (iv) the breach of any
environmental representation or warranty set forth herein, (v) the grant to the
Lead Agent and the Banks of any Lien in any property or assets of the Borrower
or any stock or other equity interest in the Borrower, and (vi) the exercise by
the Lead Agent and the Banks of their rights and remedies (including, without
limitation, foreclosure) under any agreements creating any such Lien (but
excluding, as to any Indemnitee, any such losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements to the extent incurred by reason of (i) the gross negligence or
willful misconduct of such Indemnitee as finally determined by a court of
competent jurisdiction or (ii) any investigative, administrative or judicial
proceeding imposed or asserted against any Indemnitee by any bank regulatory
agency or by any equity holder of such Indemnitee). The Borrower's obligations
under this Section shall survive the termination of this Agreement and the
payment of the Obligations.
(c) The Borrower shall pay, and hold the Lead Agent and each of the Banks
harmless from and against, any and all present and future United States stamp,
intangible, recording, transfer and other similar taxes with respect to the
foregoing matters and hold the Lead Agent and each Bank harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Bank) to pay such taxes.
SECTION 9.4. Sharing of Set-Offs. In addition to any rights now or
-------------------
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
79
any Event of Default, each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), other than deposits held for the
benefit of third parties, and any other indebtedness at any time held or owing
by such Bank (including, without limitation, by branches and agencies of such
Bank wherever located) to or for the credit or the account of the Borrower
against and on account of the Obligations of the Borrower then due and payable
to such Bank under this Agreement or under any of the other Loan Documents,
including, without limitation, all interests in Obligations purchased by such
Bank. Each Bank agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest due with respect to any Note held by it which
is greater than the proportion received by any other Bank in respect of the
aggregate amount of principal and interest due with respect to any Note held by
such other Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Notes held by the other Banks, and such
other adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes held by the Banks shall be
shared by the Banks pro rata; provided that nothing in this Section shall impair
--- ---- --------
the right of any Bank to exercise any right of set-off or counterclaim it may
have and to apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness under the Notes. The
Borrower agrees, to the fullest extent that it may effectively do so under
applicable law, that any holder of a participation in a Note, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counterclaim and other rights with respect to such participation as fully
as if such holder of a participation were a direct creditor of the Borrower in
the amount of such participation.
SECTION 9.5. Amendments and Waivers. Any provision of this Agreement,
----------------------
the Notes or other Loan Documents may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower and the Required
Banks (and, if the rights or duties of the Lead Agent are affected thereby, by
the Lead Agent); provided that no such amendment or waiver shall, unless signed
--------
by all the Banks, (i) increase or decrease the Commitment of any Bank (except
for a ratable decrease in the Commitments of all Banks) or subject any Bank to
any
80
additional obligation, (ii) reduce the principal of or rate of interest on any
Loan or any fees specified herein, (iii) postpone the date fixed for any payment
of principal of or interest on any Loan or any fees hereunder or for any
reduction or termination of any Commitment, (iv) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or the
number of Banks, which shall be required for the Banks or any of them to take
any action under this Section or any other provision of this Agreement, or (v)
release the Guarantor from any of its obligations under the Guaranty. In
addition, no such amendment or waiver shall, unless signed by the Swing Lender
and each other Bank affected thereby, increase the Swing Loan Commitment,
postpone the date fixed for the termination of the Swing Loan Commitment or
otherwise affect any of its rights or obligations hereunder relating to the
Swing Loan Commitment or the Swing Loans.
SECTION 9.6. Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or otherwise transfer any of its rights
under this Agreement or the other Loan Documents without the prior written
consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment
-----------
or any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Lead Agent, such Bank shall remain responsible for the
performance of its obligations hereunder, and the Borrower and the Lead Agent
shall continue to deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement. Any agreement pursuant
to which any Bank may grant such a participating interest shall provide that
such Bank shall retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder including, without limitation, the right
to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such participation agreement may provide that such Bank
--------
will not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii), (iii) or (iv) of Section 9.5 without the consent
of the Participant. The Borrower agrees that each Participant shall, to the
extent provided in its participation agreement, be entitled to the benefits of
Article VIII with respect to
81
its participating interest. An assignment or other transfer which is not
permitted by subsection (c) or (d) below shall be given effect for purposes of
this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
--------
rights and obligations under this Agreement, the Notes and the other Loan
Documents, provided that prior to the occurrence and continuance of an Event of
Default such assignment shall be a minimum of $10,000,000. In connection with
such assignment, such Assignee shall assume such rights and obligations,
pursuant to an Assignment and Assumption Agreement in substantially the form of
Exhibit C attached hereto executed by such Assignee and such transferor Bank,
---------
with (and subject to) the consent of the Lead Agent and, provided no Event of
Default shall have occurred and be continuing, the Borrower, which consent in
either case shall not be unreasonably withheld or delayed. Upon execution and
delivery of such instrument and payment by such Assignee to such transferor Bank
of an amount equal to the purchase price agreed between such transferor Bank and
such Assignee, such Assignee shall be a Bank party to this Agreement and shall
have all the rights and obligations of a Bank with a Commitment as set forth
in such instrument of assumption, and the transferor Bank shall be released from
its obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Lead Agent and the
Borrower shall make appropriate arrangements so that, if required, a new Note or
Notes are issued to the Assignee. In connection with any such assignment, the
transferor Bank shall pay to the Lead Agent an administrative fee for processing
such assignment in the amount of $2,500. If the Assignee is not incorporated
under the laws of the United States of America or a state thereof, it shall
deliver to the Borrower and the Lead Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in
accordance with Section 8.4.
(d) Any Bank may at any time assign all or any portion of its rights under
this Agreement and its Note to a Federal Reserve Bank. No such assignment shall
release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights shall
be entitled to receive any greater payment under Section 8.3 or 8.4 than such
Bank
82
would have been entitled to receive with respect to the rights transferred,
unless such transfer is made with the Borrower's prior written consent or by
reason of the provisions of Section 8.2, 8.3 or 8.4 requiring such Bank to
designate a different Applicable Lending Office under certain circumstances or
at a time when the circumstances giving rise to such greater payment did not
exist.
(f) Any Bank may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 9.6, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower, the Guarantor or any of their respective
Affiliates furnished to such Bank by the Lead Agent or by or on behalf of the
Borrower, the Guarantor or any of their respective Affiliates (the
"Information"). Each of the Lead Agent and the Banks agrees to maintain the
-----------
confidentiality of the Information, except that Information may be disclosed (a)
upon the occurrence and during the continuance of an Event of Default, (b) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel, and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (c) to the extent requested by any regulatory authority, (d) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (e) to any other party to this Agreement, (f) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(g) subject to an agreement containing provisions substantially the same as
those of this paragraph, to any assignee or participant in, or prospective
assignee of, or participant in, any of its rights or obligations under this
Agreement, (h) with the consent of the Borrower, not to be unreasonably
withheld, or (i) to the extent that such Information (x) becomes publicly
available other than as a result of a breach of this paragraph, or (y) becomes
available to the Lead Agent or any Bank on a non-confidential basis from a
source other than the Borrower.
SECTION 9.7. Governing Law; Submission to Jurisdiction.
-----------------------------------------
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
83
(b) Any legal action or proceeding with respect to this Agreement or any
other Loan Document and any action for enforcement of any judgment in respect
thereof may be brought in the courts of the State of New York or of the United
States for the Southern District of New York, and, by execution and delivery of
this Agreement, the Borrower hereby accepts for itself and in respect of its
property, generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts and appellate courts from any thereof. The Borrower
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the hand delivery, or mailing of
copies thereof by registered or certified mail, postage prepaid, to the Borrower
at its address set forth below. The Borrower hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection with this
Agreement or any other Loan Document brought in the courts referred to above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum. Nothing herein shall affect the right of the
Lead Agent, any Bank or any holder of a Note to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against the Borrower in any other jurisdiction.
SECTION 9.8. Marshaling; Recapture. Neither the Lead Agent nor any Bank
---------------------
shall be under any obligation to marshal any assets in favor of the Borrower or
any other party or against or in payment of any or all of the Obligations. To
the extent any Bank receives any payment by or on behalf of the Borrower, which
payment or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to the Borrower
or its estate, trustee, receiver, custodian or any other party under the
Bankruptcy Code or any other bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such payment or repayment, the
Obligation or part thereof which has been paid, reduced or satisfied by the
amount so repaid shall be reinstated by the amount so repaid and shall be
included within the liabilities of the Borrower to such Bank as of the date such
initial payment, reduction or satisfaction occurred.
SECTION 9.9. Counterparts; Integration; Effectiveness. This Agreement
----------------------------------------
may be signed in any number of
84
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
constitutes the entire agreement and understanding among the parties hereto and
supersedes any and all prior agreements and understandings, oral or written,
relating to the subject matter hereof. This Agreement shall become effective
upon receipt by the Lead Agent of counterparts hereof signed by each of the
parties hereto (or, in the case of any party as to which an executed counterpart
shall not have been received, receipt by the Lead Agent in form satisfactory to
it of telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party).
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE LEAD AGENT
--------------------
AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.11. Survival. All indemnities set forth herein shall survive
--------
the execution and delivery of this Agreement and the other Loan Documents and
the making and repayment of the Loans hereunder.
SECTION 9.12. Domicile of Loans. Subject to the provisions of Article
-----------------
VIII, each Bank may transfer and carry its Loans at, to or for the account of
any domestic or foreign branch office, Subsidiary or Affiliate of such Bank.
SECTION 9.13. Limitation of Liability. No claim may be made by the
-----------------------
Borrower or any other Person against the Lead Agent or any Bank or the
Affiliates, directors, officers, employees, attorneys or agent of any of them
for any consequential or punitive damages in respect of any claim for breach of
contract or any other theory of liability arising out of or related to the
transactions contemplated by this Agreement or by the other Loan Documents, or
any act, omission or event occurring in connection therewith; and the Borrower
hereby waives, releases and agrees not to ▇▇▇ upon any claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
85
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CABOT INDUSTRIAL PROPERTIES, L.P.,
a Delaware limited partnership
By: Cabot Industrial Trust, a Maryland real estate
investment trust, its general partner
By:___________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy Number: (▇▇▇)▇▇▇-▇▇▇▇
Commitments:
-----------
$50,000,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Bank and Swing Lender
By:________________________
Name:
Title:
$40,000,000 FLEET NATIONAL BANK
By:________________________
Name:
Title:
$40,000,000 BAYERISCHE HYPOTHEKEN- UND
WECHSEL-BANK AKTIENGESELLSCHAFT
NEW YORK BRANCH
By:________________________
Name:
Title:
By:________________________
Name:
Title:
$40,000,000 PNC BANK, N.A.
By:________________________
Name:
Title:
$35,000,000 FIRST UNION NATIONAL BANK
By:________________________
Name:
Title:
$35,000,000 SOCIETE GENERALE
By:________________________
Name:
Title:
$25,000,000 THE BANK OF NEW YORK
By:________________________
Name:
Title:
$25,000,000 SUMMIT BANK
By:________________________
Name:
Title:
$20,000,000 THE SUMITOMO BANK, LIMITED
By:________________________
Name:
Title:
$15,000,000 COMERICA BANK
By:________________________
Name:
Title:
Total Commitments
-----------------
$325,000,000
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Lead Agent
By:________________________
Name:
Title:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic and Euro-Currency Lending Office:
Nassau, Bahamas Office
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
FLEET NATIONAL BANK, as Documentation Agent
By:________________________
Name:
Title:
BAYERISCHE HYPOTHEKEN- UND
WECHSEL-BANK AKTIENGESELLSCHAFT NEW YORK
BRANCH, as Managing Agent
By:________________________
Name:
Title:
By:________________________
Name:
Title:
PNC BANK, N.A., as Managing Agent
By:________________________
Name:
Title:
FIRST UNION NATIONAL BANK,
as Co-Agent
By:________________________
Name:
Title:
SOCIETE GENERALE, as Co-Agent
By:________________________
Name:
Title:
FOR PURPOSES OF SECTIONS 3.3(c),
5.9(a), 5.15 and 5.19 hereof:
----------------------------
CABOT INDUSTRIAL TRUST
By:___________________
Name:
Title:
EXHIBIT A-1
-----------
NOTE
$15,000,000 New York, New York
March 16, 1998
For value received, CABOT INDUSTRIAL PROPERTIES, L.P., a Delaware
limited partnership (the "Borrower"), promises to pay to the order of ▇▇▇▇▇▇
--------
GUARANTY TRUST COMPANY OF NEW YORK (the "Bank"), for the account of its
----
Applicable Lending Office, the unpaid principal amount of each Loan made by the
Bank to the Borrower pursuant to the Credit Agreement referred to below on the
Maturity Date. The Borrower promises to pay interest on the unpaid principal
amount of each such Loan on the dates and at the rate or rates provided for in
the Credit Agreement. All such payments of principal and interest shall be made
in lawful money of the United States in Federal or other immediately available
funds at the office of Lead Agent under the Credit Agreement (as defined below).
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make any such recordation
--------
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This Note is one of the Notes referred to in the Revolving Credit
Agreement, dated as of March 16, 1998, among the Borrower, the Banks parties
thereto, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Lead Agent (as the
same may be amended from time to time, the "Credit Agreement").
------------------
A1-1
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
CABOT INDUSTRIAL PROPERTIES, L.P.,
a Delaware limited partnership
By: Cabot Industrial Trust, a Maryland real estate
investment trust, its general partner
By:___________________
Name:
Title:
A1-2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
________________________________________________________________________________
________________________________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
▇▇-▇
▇▇▇▇▇▇▇ ▇-▇
-----------
NOTE
___________$ New York, New York
March 27, 1998
For value received, CABOT INDUSTRIAL PROPERTIES, L.P., a Delaware
limited partnership (the "Borrower"), promises to pay to the order of [▇▇▇▇▇▇
--------
GUARANTY TRUST COMPANY OF NEW YORK or other applicable Bank] (the "Bank"), for
----
the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the Maturity Date. The Borrower promises to pay interest on
the unpaid principal amount of each such Loan on the dates and at the rate or
rates provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Lead Agent under the Credit
Agreement (as defined below).
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make any such recordation
--------
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This Note is one of the Notes referred to in the Amended and Restated
Revolving Credit Agreement, dated as of March 27, 1998, among the Borrower, the
Banks parties thereto, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Lead
Agent (as the same may be amended from time to time,
A2-1
the "Credit Agreement"). Terms defined in the Credit Agreement are used herein
----------------
with the same meanings. Reference is made to the Credit Agreement for provisions
for the prepayment hereof and the acceleration of the maturity hereof.
CABOT INDUSTRIAL PROPERTIES, L.P.,
a Delaware limited partnership
By: Cabot Industrial Trust, a Maryland real estate
investment trust, its general partner
By:___________________
Name:
Title:
A2-2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
________________________________________________________________________________
________________________________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
A2-3
EXHIBIT B
---------
UNENCUMBERED ASSET POOL PROPERTIES
B-1
EXHIBIT C
---------
FORM OF ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION AGREEMENT
-----------------------------------
AGREEMENT dated as of __________, 199_ among [ASSIGNOR] (the "Assignor"),
[ASSIGNEE] (the "Assignee"), CABOT INDUSTRIAL PROPERTIES, L.P. (the "Borrower")
and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Lead Agent (the "Agent").
W I T N E S S E T H
-------------------
WHEREAS, this Assignment and Assumption Agreement (this "Assignment")
relates to the Amended and Restated Revolving Credit Agreement dated as of March
27, 1998 (the "Loan Agreement") among the Borrower, the Assignor and the other
Banks party thereto, as Banks, and the Agent;
WHEREAS, as provided under the Loan Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $__________;
WHEREAS, Loans made to the Borrower by the Assignor under the Loan
Agreement in the aggregate principal amount of $____________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Loan Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned
Amount"), together with a corresponding portion of its outstanding Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
-----------
herein shall have the respective meanings set forth in the Loan Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
----------
Assignee all of the rights of the Assignor under the Loan Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations
C-1
of the Assignor under the Loan Agreement to the extent of the Assigned Amount,
including the purchase from the Assignor of the corresponding portion of the
principal amount of the Loans made by the Assignor outstanding at the date
hereof. Upon the execution and delivery hereof by the Assignor, the Assignee,
the Borrower and the Agent and the payment of the amounts specified in Section 3
required to be paid on the date hereof (i) the Assignee shall, as of the date
hereof, succeed to the rights and be obligated to perform the obligations of a
Bank under the Loan Agreement with a Commitment in an amount equal to the
Assigned Amount, and (ii) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Loan Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
--------
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them./1/ It is
understood that Commitment Fees accrued to the date hereof are for the account
of the Assignor and such fees accruing from and including the date hereof are
for the account of the Assignee. Each of the Assignor and the Assignee hereby
agrees that if it receives any amount under the Loan Agreement which is for the
account of the other party hereto, it shall receive the same for the account of
such other party to the extent of such other party's interest therein and
shall promptly pay the same to such other party.
SECTION 4. Consent of the Borrower and the Agent. This Agreement is
-------------------------------------
conditioned upon the written consent of the Borrower and the consent of the
Agent pursuant to section 9.6(c) of the Loan Agreement. The execution of this
Agreement by the Borrower and the Agent is evidence of the required consents.
Pursuant to Section 9.6(c) the Borrower agrees to execute and deliver a Note
payable to the order of the Assignee to evidence the assignment and assumption
provided for herein.
_______________
/1/ The amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the Assignee. It
may be preferable in an appropriate case to specify these amounts
generically or by formula rather than as a fixed sum.
C-2
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
------------------------
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Loan Agreement or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the external laws of the State of New York.
C-3
SECTION 7. Counterparts. This Agreement may be signed in any number
------------
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By:
____________________
Name:
Title:
[ASSIGNEE]
By:
____________________
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Lead
Agent
By:
____________________
Name:
Title:
CONSENTED TO [IF REQUIRED]:
--------------------------
CABOT INDUSTRIAL PROPERTIES, L.P.
By: Cabot Industrial Trust, its
general partner
By:
____________________
Name:
Title:
C-4
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS
[to come]
4.27-1